Marketing 360® Payments Terms of Service
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Madwire, LLC d/b/a Marketing 360® (“Marketing 360®,” “we” or “us”) provides certain payments services (“Marketing 360 Payments” or the “Payments Services”) to small and mid-sized businesses. These Marketing 360® Payments Terms of Service (the “Payment Terms”) constitute a legal agreement between you (“Merchant,” “you,” or “your”) and Madwire, LLC, a Colorado limited liability company with offices at 3405 S. Timberline Rd. Fort Collins, CO 80525 and governs your use of the Marketing 360® Payment Services. You must agree to these Payment Terms to use the Payment Services. The Payment Terms are effective on the date you sign up for the Marketing 360 Payment Services (the “Effective Date”) and remain in effect until terminated as provided below. The Service Agreement, the Terms of Service and the other documents incorporated by reference herein are collectively referred to as the (“Agreement”). These Payment Terms may be reviewed at any time at marketing360.com/payment-terms.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THESE TERMS, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISPUTE RESOLUTION PROVISIONS, A WAIVER OF CLASS-ACTION RIGHTS AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, MARKETING 360® DISCLAIMS ANY AND ALL WARRANTIES WHETHER PROVIDED BY MARKETING 360®, ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS.
1. Marketing 360 Payments Services. Marketing 360 Payments is a payment account boarding, underwriting and payment data transmission service that allows you to integrate the Marketing 360 Platform with a payment processor (the “Processor”). The Services offered under the Payment Terms are available in the United States only. You hereby appoint us as your agent to deliver payment related information, data and instructions on your behalf to the Processor.
The Marketing 360 payments platform (the “Marketing 360® Payments Platform”) allows you to send invoices, collect payments and track payments with your CRM contacts and digital marketing efforts. The Marketing 360® Platform and related services are governed by the Marketing 360® Terms of Service (the “Marketing Terms”) located at marketing360.com/terms. The Marketing Terms are incorporated in full by this reference.
Marketing 360® is not a bank, payment institution, money services business or money transmitter. Marketing 360® offers a software and service platform that allows you to integrate with the Processor pursuant to these terms.
2. Account Support. Our platform support team is available to help you with your account related issues by phone from 9:00AM – 6:00PM EST Monday through Friday. You may be required to provide your account pin number to receive platform support. You can find your account pin by logging into the Marketing 360® platform. If you have a dedicated Marketing Executive with a marketing service agreement, you may also contact them at any time to receive platform related support.
3. Processor. The Processor is Stripe, Inc., a corporation organized under the laws of California, which offers various payment processing services as an agent of various financial institutions (each, a “Financial Institution”) Processing payments, settling transactions and other related services (“Payment Processing”) are undertaken by the Processor and its associated Financial Institutions. Payment Processing through Processor is governed by the Stripe Services Agreement located at https://stripe.com/ssa, the Stripe Connected Account Agreement located at https://stripe.com/connect-account/legal, the Payment Terms located at https://stripe.com/payment-terms/legal, and the Stripe Financial Services Terms located at https://stripe.com/legal (collectively, the “Processor Terms”). By accepting this Agreement, you are also accepting and agreeing to be bound by the Processor Terms, which is the legal agreement between you and the Processor.
We are not a party to the Processor Terms, that is strictly a legal agreement between you and the Processor. For the avoidance of doubt, we are not liable to you in any way for an action related to Processor’s performance under the Processor Terms. Our relationship is strictly limited to these Payment Terms and the Marketing Terms.
4. Merchant Obligations.
a. Access. Upon acceptance of these Payment Terms, you will be granted a revocable, non-transferable, non-sublicensable, non-exclusive limited license to access the Marketing 360® Payment Platform. You acknowledge and agree that you do not have, nor will you claim any right, title or interest in the Marketing 360® Payment Platform, including, without limitation, the platform, software, data, applications, methods of doing business, or any other content provided through Marketing 360® whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Marketing 360® Platforms and Services, are and will remain with Marketing 360®. You may only access the Marketing 360® Payment Platform in the United States. You may only access the Marketing 360® Payment Platform via a web browser or mobile application. Your access shall be password protected and you acknowledge that you shall not share your password or otherwise permit any other person to access or use the Marketing 360® Payment Platform or Services except as expressly permitted by this Agreement.
b. Customer Verification, Consent and Customer Service. You may only use Marketing 360® Payments for legitimate transactions with your customers. You are solely responsible for obtaining your customer’s consent to be billed for your products or services in accordance with all Payment Network Rules. You are solely responsible for verifying the identity of your customers and the credit card or payment method they have provided. You are solely responsible for providing customer service to your customers regarding payment processing, disputes and all other payment related matters.
c. Data Security and PCI-DSS. You are fully responsible for the security of data on your website or otherwise in your possession or control. You agree to comply with all applicable laws and rules in connection with your collection, security, storage and transmission of any personal, financial, payment card, or other processing related information (collectively, “Data”). You agree that at all times you shall be compliant with applicable Payment Card Industry Data Security Standards (“PCI-DSS”) and, as applicable, the Payment Application Data Security Standards (“PA-DSS”). You agree to promptly provide Marketing 360®with documentation evidencing your compliance with PCI-DSS and/or PA-DSS upon request. You also agree that you will use only PCI-DSS and PA-DSS compliant service providers in connection with the storage or transmission of payment card information, including a cardholder’s account number, expiration date, and CVV2. You must not store CVV2 data at any time. It is your sole responsibility to comply with these standards and all the Payment Network Rules.
e. Receipts Required. You agree to provide a receipt or other transaction documentation after every transaction with your customers in accordance with Payment Network Rules and applicable law.
f. Restricted Use. For purposes of clarity and without limitation, you shall not, except as this Agreement expressly permits: (a) copy, modify, or create derivative works or improvements of Marketing 360® Payment Platform or Services; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Marketing 360® Payment Platform or Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Marketing 360 systems, in whole or in part; (d) bypass or breach any security device or protection used by the Marketing 360® Payment Platform or Services, or access or use the Marketing 360® Payment Platform or Services other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) input, upload, transmit or otherwise provide to or through the Services or Marketing 360®’s systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Marketing 360®’s systems or Marketing 360®’s provision of services to any 3rd Party, in whole or in part; (g) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property, or proprietary rights notices from any Services or other Marketing 360® materials, including any copy thereof; (h) access or use the Marketing 360® Platforms or Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of Marketing 360® or any 3rd Party or in a way that violates any applicable law; (i) access or use the Marketing 360® Platforms or Services for purposes of competitive analysis of the Services, for the development, provision, or use of a competing software service or product, or any other purpose that is to Marketing 360’s detriment or commercial disadvantage.
You are required to obey all laws and regulations applicable to your use of the Marketing 360® Payments Platform. Additionally, you may not use the services to provide cash advances, you may not process any payments not associated with your sale of goods or services to a customer, you may not act as a payment intermediary or resell the Marketing 360® Payments Platform, you may not process or attempt to process payments or authorization you know or believe to be fraudulent, and you may not use the Marketing 360® Payment Platform in any way that violates any payment network or credit card rules.
In addition to the other remedies Marketing 360® may have, Marketing 360® may terminate the foregoing license and/or refuse to provide you services if we determine, in our sole discretion, that you have violated any provision in this Section 4.f.
5. Prohibited Businesses. You may not use the Marketing 360® Payment Platform or Services for any Restricted Business. A current list of Restricted Businesses can be found at www.marketing360.com/restricted-payment-businesses
6. Payment Methods. The Marketing 360® Payments Platform offers a variety of payment method options to you pursuant to the rules and terms of the respective payment method provider. You acknowledge that you are solely responsible for any and all disputes, reversals or chargebacks with any payment method provider. Marketing 360® may add or remove payment methods from the service in our sole discretion without notice to you.
7. Audit Right. If we have reason to believe that there has been a breach or compromise of sensitive data, we reserve the right, in our sole discretion, to require that you have a third party audit your facility, records and systems to ensure that you are abiding by these Payment Terms, the Processor Terms, the Payment Network Rules, and/or PCI-DSS and PA-DSS Rules. Such audit would be at your expense, and the auditor would be subject to our approval. We may provide the results of this Audit to any relevant third party.
8. Payment Network Rules. The various payment networks have established guidelines, bylaws, rules, and regulations referred to herein as the “Payment Network Rules.” You are required to comply with all applicable Payment Network Rules. The rules for Visa, MasterCard and American Express are available at the following links: Visa, MasterCard and American Express. The Payment Networks may amend the Payment Network Rules at any time and without notice to us or to you. If there is a conflict with these Payment Terms and the Payment Network Rules, the Payment Network Rules shall control.
9. Registration, Verification and Underwriting. You may register for the Marketing 360® Payments by going through the payment application process in the Marketing 360® platform. Your registration is effective only if you have completed the application in full and provided all information necessary for us to verify your identity as either an individual or entity. We may require you to provide any additional information that we deem necessary, in our sole discretion, to verify your identity. Your failure to provide any requested information in a timely manner may result in our termination of your Marketing 360 Payments Services. We may hold any processed funds while your identification verification is pending. By accepting these Payment Terms, you expressly grant Marketing 360® authorization to share this information with the Processor and to retrieve any relevant information about you from the credit bureaus and other information providers.
You agree to keep the information in your Marketing 360® Payments account current. You must promptly update your account with any changes affecting you, the nature of your business activities, your Representatives, beneficial owners, principals, or any other pertinent information. We may suspend your account or terminate this Agreement if you fail to keep this information current. You also agree to promptly notify us in writing no more than three days after any of the following occur: you are the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, or similar action (any of the foregoing, a “Bankruptcy Proceeding”); there is an adverse change in your financial condition; there is a planned or anticipated liquidation or substantial change in the basic nature of your business; you transfer or sell 25% or more of your total assets, or there is any change in the control or ownership of your business or parent entity; or you receive a judgment, writ or warrant of attachment or execution, lien or levy against 25% or more of your total assets.
10. Payout Account. The Processor will settle funds with you in your “Payout Account” as defined in the Processor Terms.
11. Marketing 360® Payments Fees and Fines. All fees associated with Marketing 360® Payments can be found at the pricing page located marketing360.com/processing-fees. These fees are incorporated into these Payment Terms by this reference. Processing Fees will be assessed at the time a transaction is processed and will be first deducted from the funds received for such transaction. If these amounts are not sufficient to meet your obligations to us, we may charge the payment method associated with your Marketing 360® Payments Account for any amounts owed to us. We may assess additional fees for payouts to your account, payment disputes, chargebacks and/or inquiries. If your account does not have the funds to cover these fees, we may charge the payment method associated with your Marketing 360® Payments Account for these amounts. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement.
In addition to the Fees, you are also responsible for any penalties or fines imposed in relation to your Marketing 360® Payments account levied by the Processor or otherwise.
12. Transactions, Reversals, Chargebacks and Disputes. You may only process transactions that are authorized by your Customers. To enable us to process transactions for you, you authorize and direct us, our affiliates, the Payment Networks and the card issuing banks to receive and settle any payment processing proceeds owed to you through the payment processing services. You may not grant or assign any interest in payment processing proceeds to any third party until such time as the payment processing proceeds are deposited into your Payout Account.
You are immediately responsible for, and must immediately reimburse us, for all disputes, refunds, reversals, returns, chargebacks or fines regardless of the reason or timing. We may decline to act upon a refund instruction, or delay execution of the instruction, if: (i) it would cause your account balance to become negative; (ii) you are the subject of Bankruptcy Proceedings; or (iii) where we otherwise believe that there is a risk that you will not meet your liabilities under this Agreement (including with respect to the charge that is the subject of the refund instruction).
In most cases, you may have the ability to challenge a dispute by submitting evidence through the Processor dashboard. We may request additional information to assist you in contesting the Dispute, but we cannot guarantee that your challenge will be successful. You acknowledge that your failure to provide us with complete and accurate information in a timely manner may result in an irreversible chargeback being assessed. Your challenge may be denied for any reason that the Payment Networks or card issuing banks deem appropriate. Where a challenge is entirely or partially successful, your account will, subject to our exercise of our rights under Sections 10 and 11, be credited with the funds associated with the charge that is the subject of the dispute (or a portion thereof). You may not submit a new charge which duplicates a transaction that is subject to a dispute.
You are liable for all losses you incur for chargebacks, disputes, refunds, or when lost or stolen payment credentials or accounts are used to purchase products or services from you. We do not and will not insure you against losses caused by fraud under any circumstances. For example, if someone pretends to be a legitimate buyer but is a fraudster, you will be responsible for any resulting costs, including disputes, even if you do not recover the fraudulently purchased product.
If the cardholder’s issuing bank or the Payment Network does not resolve a dispute in your favor, we may recover the chargeback amount and any associated fees from you as described in this Agreement.
We reserve the right, upon notice to you, to charge a fee for mediating or investigating chargeback disputes.
13. Security Interest, Set-Off and Personal Guarantee. As security for performance of your obligations under this Agreement, you grant us a first priority lien and security interest on all funds processed pursuant to this Agreement, including funds deposited into your Payout Accounts, and any other bank accounts associated with your Marketing 360® Payments Account, and in any funds processed using the payment processing services. These security interests and liens will secure payment and performance of all of your obligations under this Agreement and any other agreements now existing or later entered into between us and you, including, without limitation, your obligation to pay any amounts due and owing to us. You will execute, deliver and pay the fees for any documents we request to create, perfect, maintain, and enforce this security interest (such as the filing of a form UCC-1).
We may collect any amounts you owe us under this Agreement by deducting or setting off amounts from your Payout Accounts, withholding any processing related funds, or deducting from any account that we determine is logically associated with you Marketing 360® Payments account.
In some cases, we may require that one of the beneficial owners of the business enter into a personal guarantee in order to begin or continue using the Marketing 360® Payments services. If we require a personal guarantee we will notify you of the request in writing.
14. Reserve Account. We may, in our sole discretion, hold back your funds in a reserve account “the “Reserve Account”) to cover potential losses from chargebacks, refunds, reversals, disputes, inquiries and other payment related issues. We reserve the right to set the terms under which any funds are reserved and any conditions of the release of such funds in our sole discretion. We may fund the Reserve Account with funds normally due to you from processing, with funds from your Payout Account, or by requesting you to provide additional funds. You are not entitled to any interest in any funds held in a Reserve Account. You have no legal interest in such account, and may not direct that account.
15. Instant Payouts. Accounts that have been processing with Marketing 360 payments for more than six months may request instant payouts. Instant payouts allow you to receive same day, or in some circumstances, next day payouts from your processing activities. Marketing 360 will determine, in its sole discretion, whether or not to approve instant payouts based on a number of factors including, but not limited to, your processing history, your accounts chargeback/dispute history, your account’s refund history, and other factors. Marketing 360 may reject your request for instant payouts for any reason. Marketing 360 may also revoke your right to instant payouts at any time, for any reason, without notice to you. The fee for instant payouts is outlined in the processing fee schedule located at: marketing360.com/processing-fees.
16. Marketing 360 POS. Upon payment of the monthly Marketing 360 POS license fee, you will be granted a non-exclusive, limited, revocable, non-transferable license to use the Marketing 360 POS software. The Marketing 360 POS allows you to accept payments and make sales to your customers through the Marketing 360 Card Reader or your own internet-connected PC or tablet. You are required to supply your own internet-connected tablet or PC to access the Marketing 360 POS Services. You must purchase the Marketing 360 Card Reader in conjunction with the Marketing 360 POS. The Marketing 360 POS and the Marketing 360 Card Reader require a Wi-Fi secured internet connection to operate. You are solely responsible for obtaining and installing all Internet-related equipment and services needed to operate my Marketing360 Card Reader. Marketing 360 Payments is not responsible for equipment or service issues related to Internet connectivity, modems, routers, outlets, wiring, cables, or Internet Service Provider stability. Marketing 360 will provide one-time online and telephonic setup support, but will not provide onsite setup services.
17. Marketing 360 Card Reader. The Marketing 360 Card Reader allows you to process credit cards using your tablet or mobile phone. The Marketing 360 Card Reader requires a compatible smartphone and the Marketing 360 Mobile App. The Card Reader may only be accessed through the Marketing 360 Mobile App. The Mobile App is governed by the Marketing 360 Mobile App EULA located at https://www.marketing360.com/mobile-app-eula. A secured internet connection is required to operate the Card Reader. You are solely responsible for obtaining all Internet-related services needed to operate my Marketing360 Card Reader. Marketing 360 Payments is not responsible for equipment or service issues related to Internet connectivity or Internet Service Provider stability. Marketing 360 will provide one-time online and telephonic setup support for the card reader, but will not provide onsite setup services. All transactions will be assessed processing fees as outlined in the processing fee schedule located at: marketing360.com/processing-fees. All Card Reader transactions will be considered "Card Present" transactions for the purpose of calculating processor fees.
18. Marketing 360 Terminal. The Marketing 360 Terminal is a stand-alone WiFi-enabled credit card reader. The Marketing 360 Terminal requires a Wi-Fi secured internet connection to operate. You are solely responsible for obtaining and installing all Internet-related equipment and services needed to operate my Marketing 360 Terminal. Marketing 360 Payments is not responsible for equipment or service issues related to Internet connectivity, modems, routers, outlets, wiring, cables, or Internet Service Provider stability.Marketing 360 will provide one-time online and telephonic setup support for Marketing 360 Terminal, but will not provide onsite setup services.All Marketing 360 Terminal transactions will be assessed processing fees as outlined in the processing fee schedule located at: marketing360.com/processing-fees. All Terminal transactions will be considered "Card Present" transactions for the purpose of calculating processor fees.
19. Term. The term begins on the date you accept these Payment Terms by either signing a Marketing 360® Service Agreement or by agreeing to these Payment Terms electronically and will continue for as long as you use the Services (the “Term”). We may terminate this Agreement at any time for any reason by providing notice to you.
20. DISCLAIMER OF WARRANTIES. MARKETING 360® PROVIDES ALL SERVICES ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICES. THE SERVICES ARE PROVIDED WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE SERVICES ARE INTERRUPTED OR DELAYED, MARKETING 360®’S SOLE OBLIGATION WILL BE TO RESTORE OR PROVIDE SUCH SERVICES AS SOON AS PRACTICAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MARKETING 360® DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, MARKETING 360® MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT OR SERVICE.
21. LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MARKETING 360® SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE INDEMNIFICATION SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE EXCEED IN THE AGGREGATE THE AMOUNTS YOU PAID AS FEES TO MARKETING 360® IN THE THREE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
WITHOUT LIMITING THE FOREGOING, MARKETING 360® IS NOT RESPONSIBLE FOR AND ASSUMES NO LIABILITY FOR ANY DAMAGES DUE (I) ANY UNAUTHORIZED ACCESS TO OR USE OF SERVERS USED IN CONNECTION WITH THE PAYMENTS SERVICES AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (II) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PAYMENTS SERVICES; (III) ANY SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE PAYMENTS SERVICES; (IV) ANY ERRORS, INACCURACIES OR OMISSIONS IN ANY CONTENT OR INFORMATION, FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR INFORMATION, IN EACH CASE POSTED, EMAILED, STORED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE PAYMENTS SERVICES; AND/OR (V) ALL LIABILITY WITH RESPECT TO THIRD-PARTY USERS OR THIRD-PARTY PRODUCTS THAT YOU USE IN CONJUNCTION WITH THESE SERVICES.
YOU UNDERSTAND THAT THE PRICING AND SERVICES ARE OFFERED CONTINGENT UPON YOUR AGREEMENT TO THESE LIMITATIONS OF LIABILITY, AND YOU AGREE AND ACKNOWLEDGE THAT ABSENT YOUR AGREEMENT TO THESE LIMITATIONS OF LIABILITY, WE WOULD NOT OFFER TO PROVIDE THE MARKETING 360® PAYMENT PLATFORM OR SERVICES TO YOU.
22. Representations. You personally represent and warrant that (a) you, or the entity you represent, are located in the United States and you will only process payments from the United States, (b) you are at least 18 years of age, (c) you have the right, power and ability to enter into this Agreement and be bound to its obligations hereunder on behalf of yourself or the Merchant entity you represent; (d) all information you have provided is complete and accurate, (e) you will comply with all applicable laws at all time during the Term, (f) the execution of this agreement by the Merchant has been authorized by all necessary corporate actions; and (g) these Payment Terms constitute a legal, valid, and binding obligation of Merchant, enforceable against Merchant in accordance with its terms (h) your employees, contractors and agents will at all times act consistently with the terms of this Agreement; (i) you will not use Payment Processing Services for personal, family or household purposes, for peer-to-peer money transmission, or (except in the normal course of business) intercompany Transactions; and (j) you will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner that interferes with the normal operation of the Services. You further represent that you have the right to use all intellectual property, including, but not limited to copyrighted materials and trademarks, supplied to Marketing 360® for use in conjunction with the services.
23. Dispute Resolution.
a. Agreement to Arbitrate. The Parties hereby agree to resolve any and all disputes, controversies, or claims arising out of, relating to, or in connection with this Agreement and/or the Services, including the breach, termination, or validity thereof, through confidential binding arbitration in Fort Collins, Colorado by a single arbitrator. Such arbitration shall be administered by the American Arbitration Association (AAA) and conducted pursuant to the Expedited Procedures of the Commercial Arbitration Rules (CARs) of the AAA. The Parties further agree that they may only bring or participate in claims against the other in their respective individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. The Parties further agree that the arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
b. Exceptions to Agreement to Arbitrate. Marketing 360® may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services or for intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the Good Faith dispute-resolution process described above. In the event that the Parties agreement to arbitrate is found not to apply for any reason, all actions relating to or in connection with this Agreement shall be brought in the state and federal courts located in Larimer County, Colorado and Denver County, Colorado, respectively. The Parties consent to venue and personal jurisdiction in these courts for the limited exceptions under this Section 12.c.
c. Collection Rights. To the maximum extent permitted by law, we may collect any obligations you owe us under this Agreement by requesting that the Processor deduct the corresponding amounts from the Reserve Account or from funds payable to you arising from the settlement of processing activity. You will be liable for our costs associated with collection in addition to the amount owed, including, without limitation, attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.
d. Costs and Attorney’s Fees: Except as provided in Section 18(c) above, the Parties will be responsible for their own costs and legal fees.
e. Voluntary and Knowing Waiver. BY ENTERING INTO THIS ARBITRATION AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT IT MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY, AND THAT IT WAIVES ANY RIGHT TO BRING AN ACTION AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT CLIENT WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
24. Indemnification. You agree to indemnify, defend, and hold Marketing 360® harmless from any and all liability, claims, damages, and settlements due to any third party claims or causes of action, (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to Merchant’s (a) illegal or unauthorized use of the Services, or (b) noncompliance or breach of any of these Payment Terms by you or any third party (authorized, permitted or enabled by Merchant). This indemnification includes, but is not limited to, any actions, including actions alleging or related to: infringement of any intellectual property (including trademark, patent and copyright actions), defamation, false or misleading advertising, end user personal or financial data, applicable privacy laws, PCI compliance, Merchant’s order processing, billing, fulfillment, shipment, collection, or actions related or associated with any products or services offered, sold, or licensed through Merchant’s website. If Merchant is a Covered Entity under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Merchant waives any claims it may have against Marketing 360® arising out of or in connection with HIPAA requirements and agrees to indemnify and hold harmless Marketing 360® against any and all Claims that are related to or arise from failure to comply with HIPAA requirements.
We have agreed to indemnify and hold the Processor harmless for some, and, in some cases, all of your liabilities occurring under the Processor Terms, including, but not limited to, disputes (including, but not limited to, chargebacks), refunds, reversals, returns and fines (as such terms are defined in the Processor Terms). To the extent that we become liable for any of the foregoing you agree to indemnify and hold Marketing 360® harmless from and against any and all such liabilities.
25. Additional Legal Terms.
a. Choice of Law: This agreement and its interpretation, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the state of Colorado without giving effect to conflict of laws principles.
b. Entire Agreement. These Payment Terms constitute the entire agreement between the Parties regarding the subject matter herein. All prior agreements, discussions, representations, warranties and covenants are merged herein. Marketing 360® limits acceptance to these agreements, and objects to any other additional or different terms in the Merchant’s acceptance.
c. Amendment/No Waiver. We may update and change any part or all of these Terms of Service at any time. We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Marketing 360 ® Payments Platform or Services with notice that we in our sole discretion deem to be reasonable in the circumstances. Updated Payment Terms will be posted at http://marketing360.com/payment-terms. Any use of the Payments Services after our publication of any such changes shall constitute your acceptance of this Agreement as modified. The failure by either Party to require performance of any provision shall not constitute a waiver nor affect that Party’s right to require performance at any time thereafter.
d. Electronic Signatures. Each party agrees that electronic signatures have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, click box or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.
e. Severability. If any provision of this Agreement or the application thereof is held invalid, illegal, or unenforceable by any court of competent jurisdiction, (a) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants, and restrictions of this Agreement will remain in full force and effect.
f. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without consent or other restriction.
g. No Third-Party Beneficiaries. The parties do not confer any rights or remedies upon any person other than the parties to this Agreement and their respective successors and permitted assigns.
h. Third-Party Sites and Products. Third party sites and products are not under our control and are provided to you only as a convenience. The availability of any third-party website or product does not mean we endorse, support or warranty the third-party site or product. We do not warranty the performance of any third-party product or service and we do not assume any liability from your use of third-party products and services.
i. HIPAA. If Merchant is a “covered entity” or a “business associate” thereof, as each term is used under the Health Insurance Portability and Accountability Act of 1996 (as may be amended or replaced, “HIPAA”) or is otherwise subject to any HIPAA-related or similar legal requirement, Merchant is solely responsible to ensure full compliance therewith. Merchant is responsible for maintaining the privacy of any persons or their information that may be covered by HIPAA or any related or similar legislation or regulation. Marketing 360® makes no claims or warranties regarding compliance with HIPAA.
j. EU/EEA Data Processing. To the extent that we process customer data that is subject to the European Union General Data Protection Regulation (“GDPR”) on your behalf, such processing will be undertaken pursuant to the terms of the Marketing 360® Data Processing Agreement (the “DPA”) located at https://www.marketing360.com/data-processing-agreement/. Please contact your Marketing 360 representative to receive a signed version of the DPA. The DPA is hereby incorporated by reference for all accounts whereby we process data subject to the GDPR. You acknowledge that in all cases Marketing 360® acts as the data processor of this data and you are the data controller of the data. You are required under the GDPR to obtain and maintain documentation of the applicable legitimate purpose and consent to process any GDPR data shared with Marketing 360® under this Agreement.
k. Relationship of the Parties. The Parties to the agreement are independent contractors, and no agency, partnership, joint venture, or employee/employer relationship is intended or created,
l. Referrals. Marketing 360® may provide incentives to 3rd parties to introduce potential Merchants to Marketing 360®. From time to time, Marketing 360® may receive referral fees, incentives, revenue shares or rebates (the “Incentives”) from 3rd party advertisement providers, payment processors, and/or other 3rd parties based on hitting revenue or advertising spend thresholds or referring potential customers to the 3rd party provider. You acknowledge that you are not entitled to any Incentive or share of any Incentive received by Marketing 360®.
p. Survival. The sections labeled Intellectual Property, Confidentiality, Disclaimer of Warranties, Limitations of Liability, Dispute Resolution, and Indemnification are intended to survive the termination, cancellation or expiration of this agreement. Notwithstanding the foregoing, Merchant remains liable for any amounts due to Marketing 360® as of the effective date of termination.
q. Subcontracting. Marketing 360® may, without your consent, subcontract to any party the performance of all or any of Marketing 360®’s obligations under this Agreement provided that Marketing 360® remains primarily liable for the performance of those obligations.
r. Taxes. Sales tax and/or VAT tax may be added to certain Marketing 360® Payments Platform fees or services in certain states. Sales and VAT taxes are automatically calculated based on Merchant’s billing address and the product or services on Merchant’s invoice. Merchant is responsible for any sales, use or VAT taxes on the Marketing 360® Payments Platform fees or services not collected by Marketing 360®.
You are solely responsible for determining what taxes and rates apply to any goods or services offered through the Marketing 360® Payments Platform. We are not obligated to, nor will we, determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority, arising from any Transaction. Marketing 360®retains the right, but not the obligation, at its sole discretion, to complete and file tax or related reports with tax authorities regarding if we deem such reporting necessary. You hereby indemnify and hold Marketing 360® harmless from and against any and all liability related to Taxes and filings made by Marketing 360® in respect thereof. You agree that we may send you any tax-related information electronically.
s. Call Recording. You acknowledge that we may record Merchant phone calls for quality control purposes.
t. CCPA Contract Clauses. If we are processing data for you that is protected by the California Consumer Privacy Act (CCPA) such data will be processed in accordance with our CCPA Contract Clauses located at marketing360.com/ccpaclauses. If you are covered by the CCPA, it is your obligation to inform us of those obligations so that we can provide you with the CCPA Contract Clauses to sign.
u. Trade Name. Marketing 360® is a federally registered trademark and registered trade name of Madwire, LLC a Colorado limited liability company.
w. Headings. Section headings are provided for reference purposes only and in no way define, limit, construe, or describe the scope or extent of any section.
x. Force Majeure. Neither party shall have any liability for any failure or delay (other than for an obligation to pay) resulting from any government action, natural disaster, power failure, or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.