1. Agreement. These Terms of Service (the “Terms of Service”) set forth the agreement between you (“Merchant”, whether an individual or entity) and Compliant Data Services, Inc., d/b/a www.datainsure.com (“Compliant Data Services”). These Terms of Service include (i) the terms and conditions set forth below, (ii) the terms and conditions set forth in the Order and Set Up Form (the “Order”) delivered to Merchant, and (iii) any policies, guidelines, and amendments that may be incorporated by reference into these Terms of Service from time to time, all of which shall be effective immediately upon receipt thereof by Merchant or upon being posted to www.datainsure.com. Merchant is strongly encouraged to check for updates and changes to these Terms of Service on a regular basis. By executing and delivering the Order to Compliant Data Services or its authorized agents, and/or by continuing to receive any of the Services (as defined below), Merchant agrees that these Terms of Service, as amended or supplemented from time to time in accordance with the procedures set forth above, govern the delivery and use of the Services.
2. Services. Compliant Data Services provides the following services: (a) merchant credit and debit card processing, and related, services; and (b) credit and debit card hardware placement services (collectively, the “Services”). Merchant authorizes Compliant Data Services to refer Merchant to Third Party Vendors (as defined below) for the purpose of obtaining the Services. Merchant also appoints Compliant Data Services as the exclusive provider of the Services to Merchant. If, at any time during the Term (as defined below), Merchant’s usage of the Services exceeds the maximum allowable under the Order, the Services shall be increased to the next level of service and Merchant agrees to pay Compliant Data Service’s then-current Fees (as defined below) for such additional Services.
4. Fees. Merchant agrees to pay for those Services identified or selected on the Order, as the same may be amended, supplemented or changed from time to time in Compliant Data Service’s sole discretion and without prior notice to Merchant (the “Fees”), including but not limited to adjustments that reflect new costs incurred by Compliant Data Services to provide the Services or price increases or other charges by Third Party Vendors. Except as set forth in the Order, the Fees are due monthly based upon the then-current pricing schedule. Fees are non-refundable once paid. Pursuant to the terms of the Order, Merchant authorizes Compliant Data Services (or its Third-Party Vendors) to debit the bank account of Merchant listed in the Order for any and all Fees incurred by Merchant during the Term. Merchant shall be obligated to pay for the following additional charges, if applicable:
a) If Merchant cancels or terminates the Services prior to the end of the Term, the monthly Fees already paid by Merchant shall be non-refundable and any waived fees will be reinstated and billed;
b) Merchant may be charged for the full retail value of all accounting software and terminal equipment provided at no cost to Merchant (as part of the “free placement” program or otherwise);
c) Merchant shall pay the shipping fees for equipment as follows: (i) Twenty-five dollars ($25.00) per hardware terminal; (ii) Five dollars ($5.00) per credit card swiper; (iii) Five dollars ($5.00) shipping fee per QuickBooks software encryption; and (iv) Thirty-five dollars ($35.00) per PIN pad;
d) Merchant shall be charged an annual fee of ninety-five dollars ($95.00) per account; and
e) Merchant will pay a monthly PCI compliance fee, Data Backup fee, and any annual increases associated with such services. Merchant also may have a Plug-In software monthly fee determined by the setup and delivery of such services.
f) If at any time during the Term, Merchant stops using the credit and debit card processing services contemplated under these Terms of Service, discontinues batching credit and debit card services through Compliant Data Services or its Third Party Vendors in the ordinary course of business, or uses merchant credit or debit card processing services of any other provider, or if a Termination for Breach (as defined below) occurs, then Merchant will be charged a non-processing fee in the amount of one thousand nine hundred and ninety five dollars ($1995.00) to cover Compliant Data Service’s costs, expenses and overhead for the unused Services. If Merchant terminates any Third-Party Vendor Agreement (as defined below) prior to the expiration of the Term, then Merchant will be obligated to pay to Compliant Data Services an early termination fee equal to the greater of: (i) product of (x) 0.005, (y) the monthly average credit and debit card processing volume, expressed in dollars, of Merchant from the date of Order to the date of termination, and (z) the number of months remaining in the then current Term; and (ii) $495. Merchant acknowledges and agrees that, because of the investment of Compliant Data Services required to set up and provide the Services to Merchant during the Term, Compliant Data Services will incur significant losses if Merchant fails to process credit and debit card transactions exclusively through Compliant Data Services through to the end of the Term. It is understood and agreed by Merchant that the foregoing fees represent a reasonable estimate of fair compensation for the damages to Compliant Data Services, and do not represent a penalty of any kind. The foregoing fees are in addition to any other Fees that may be due as provided for hereunder, to the extent that such fees are permitted under applicable law.
Any and all fees and charges set forth in these Terms of Service are subject to change from time to time, as determined by Compliant Data Services in its sole discretion.
5. Merchant’s Obligations.
a) Third Party Vendor Compliance. Third Party Vendors may require certain additional terms and conditions as a prerequisite to providing all or a portion of the Services subscribed for hereunder (“Third Party Vendor Agreements”). For example, in order to open a merchant account enabling it to process credit and debit card transactions, Merchant will be required to become a party to a merchant processing agreement with a merchant bank card acquirer utilized by Compliant Data Services. Merchant shall comply with all such terms and conditions, and with such agreements, for the Services provided by such Third-Party Vendors.
b) Credit and Debit Card Compliance. Merchant will be responsible for complying with the rules, regulations and terms and conditions between Merchant and Visa, MasterCard, Discover, American Express and/or all other card networks and associations (and related members and third-party providers), as they may apply and as are modified from time to time (the “Card Brand Rules”).
c) PCI Compliance. Merchant shall comply with the rules, regulations, standards and guidelines set forth by the Payment Card Industry Security Standards Counsel (“PCI SSC”) or any governing committees or boards thereof and such rules and regulations, as may be amended from time to time (the “PCI DSS Rules”).
d) Network. Merchant is responsible for the functionality of its network environment and the integration and compatibility of the Services with its network environment. Such network environment includes, but is not limited to, any POS systems, software, hardware, network security, firewall, and encryption used by Merchant in its business. Merchant is responsible for remedying inadequacies, failures, weaknesses, incompatibilities, or non-complying aspects in or of Merchant’s network environment.
e) Hardware/Software Use. Any hardware or software that Compliant Data Services or its Third-Party Vendors provide to Merchant shall be subject to the terms of the license or equipment agreement applicable to such software or hardware. Merchant is responsible for complying with such license and/or equipment agreement, as applicable.
f) Applicable Laws. Merchant is solely responsible for complying with all applicable international, national, state, regional and local laws and regulations applicable to Merchant.
g) Notifications Regarding Changes in Business or Information. Merchant must provide Compliant Data Services with immediate and prior written notice of Merchant’s intent to: (i) transfer or sell any substantial part of its total assets, or liquidate; (ii) change the basic nature of its business, including selling any products or services not related to its current business; (iii) change ownership or transfer control of its business; (iv) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a party to these Terms of Service assumes any interest in Merchant’s business; (v) change its address or principal place of business; (vi) voluntarily file for bankruptcy, declare insolvency, appoint a receiver, or make an assignment for the benefit of creditors.
Merchant shall comply with all materials, information, directions, notices and instructions that it receives from Compliant Data Services or Third-Party Vendors with respect to the rules and agreements referenced above. Merchant is solely responsible for timely reading and complying with such materials, information, directions, notices, and instructions. Merchant acknowledges and agrees that the materials, information, directions, notices, and instructions from Compliant Data Services and/or its Third-Party Vendors may require Merchant to implement new or modify old procedures, which Merchant agrees to implement in accordance with this Section.
Merchant’s failure to comply with Third Party Vendor Agreements, Card Brand Rules, PCI DSS Rules, network environment requirements, hardware/software agreements, and/or applicable law, shall constitute a breach by Merchant of its obligations under these Terms of Service.
6. Representations, Warranties and Covenants.
a) Compliant Data Services. Compliant Data Services represents and warrants to Merchant that it shall use reasonable care in the selection of Third Party Vendors to provide all or any portion of the Services subscribed for hereunder.
b) Merchant. Merchant represents and warrants to Compliant Data Services that it has all the necessary legal authority to enter into these Terms of Service and to perform its obligations under these Terms of Service. Merchant is in compliance with all international, national, state, regional and local laws and regulations applicable to Merchant. Merchant further represents, warrants and covenants to Compliant Data Services that it shall only use the Services for lawful purposes and shall not use the Services in a manner that would constitute a civil or criminal offense. Merchant further represents, warrants and covenants to Compliant Data Services that all information provided by or on behalf of Merchant to Compliant Data Services is true, complete and accurate. Merchant further agrees to inform Compliant Data Services immediately in the event any such information changes or is no longer true, complete or accurate.
7. Independent Contractors. These Terms of Service shall not be construed as a partnership or joint venture, and Compliant Data Services will not be liable for any obligation incurred by Merchant. The relationship between Compliant Data Services and Merchant is that of independent contractors. Neither Merchant nor Merchant’s employees, consultants, contractors or agents are agents, employees, partners or joint venturers of Compliant Data Services, nor do they have any authority to bind Compliant Data Services by contract or otherwise to any obligation.
8. Term and Termination. Except as otherwise expressly set forth in any Order, the initial term of these Terms of Service shall be for a period of three (3) years, commencing on the date the executed Order is delivered to Compliant Data Services. Thereafter, the term shall be automatically renewed for additional terms of three (3) years each unless and until either party provides written notice of termination to the other party no later than ninety (90) days prior to the end of the then-current term (collectively, the “Term”). Notwithstanding the foregoing to the contrary, Compliant Data Services may terminate these Terms of Service either (i) upon seven (7) days’ notice to Merchant at any time for any reason, or no reason at all (“Termination for Convenience”), or (ii) at any time without prior notice if Merchant breaches any term or provision of these Terms of Service (“Termination for Breach”). In the event of a Termination for Convenience, Merchant shall not be responsible for any Fees beyond the date on which Compliant Data Services terminated these Terms of Service. In the event of a Termination for Breach, all Fees paid shall be non-refundable and Merchant shall remain liable for all Fees set forth in Section 4 above. Upon termination of these Terms of Service for any reason, any software or credit card processing hardware provided at no cost to Merchant (as part of the “free placement” program or otherwise) must be returned immediately to Compliant Data Services. Merchant hereby authorizes Compliant Data Services to debit any charges due by Merchant under these Terms of Service or any other agreement between Merchant and Compliant Data Services or its affiliates from any checking, savings, credit card or any other type of account provided by Merchant to Compliant Data Services.
9. Website Use; Privacy.
a) By visiting or using any website or link of Compliant Data Services, Merchant agrees not to interfere with such website or link, or use it for an illegal or improper purpose. Merchant acknowledges that Compliant Data Services is protected by copyrights, trademarks, service marks, patents and other proprietary rights and laws. Trademarks, service marks, logos, and copyrighted works appearing in any such website or link are the property of Compliant Data Services or the party that provided them, who retain all rights with respect to them. Nothing in these Terms of Service shall be construed to confer a license or right, by implication, estoppel or otherwise, under copyright or other intellectual property rights. Compliant Data Services reserves the right, in its sole discretion, to terminate a Merchant’s access to any or all of Compliant Data Service’s websites, links and the related services or any portion thereof at any time, without notice and for any reason. Links on an Compliant Data Services website may not be under the control of Compliant Data Services, and Compliant Data Services is not responsible for the contents of any linked site or any link contained in a linked site, or any changes to such sites.
10. Disclaimer of Warranties and Limitation of Liability.
a) EXCEPT AS PROVIDED IN SECTION 6(A) OF THESE TERMS OF SERVICE, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. COMPLIANT DATA SERVICES DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. COMPLIANT DATA SERVICES FURTHER DISCLAIMS ANY WARRANTY INSURING THAT THE SERVICES WILL (I) BE SECURE, UNINTERRUPTED, TIMELY, OR FREE FROM DEFECTS, ERRORS, OMISSIONS, INTERRUPTIONS, DELAYS OR OTHER LOSSES, (II) BE COMPATIBLE OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE SYSTEMS, OR DATA OF MERCHANT, AND (III) BE FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPLIANT DATA SERVICES OR ITS AGENTS, EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF COMPLIANT DATA SERVICES’S OBLIGATIONS.
b) TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT AS PROVIDED IN THESE TERMS OF SERVICE, COMPLIANT DATA SERVICES DISCLAIMS ANY AND ALL LIABILITY ARISING FROM ACTIONS OR OMISSIONS FROM THIRD PARTY VENDORS PROVIDING ALL OR ANY PART OF THE SERVICES SUBSCRIBED FOR HEREUNDER. MERCHANT FURTHER AGREES TO HOLD COMPLIANT DATA SERVICES HARMLESS FROM ANY AND ALL LOSSES, LIABILITIES, DAMAGES, PENALTIES, OR EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) ARISING FROM ACTIONS OR OMISSIONS BY THIRD PARTY VENDORS PROVIDING ALL OR ANY PART OF THE SERVICES SUBSCRIBED FOR HEREUNDER.
c) NEITHER PARTY SHALL BE LIABLE UNDER THESE TERMS OF SERVICE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THE THESE TERMS OF SERVICE, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL COMPLIANT DATA SERVICES TOTAL LIABILITY TO MERCHANT OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE EXCEED ONE THOUSAND DOLLARS ($1,000.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.
11. Indemnification. Merchant agrees to indemnify, defend, and hold harmless Compliant Data Services, its employees, officers, directors, managers, members, shareholders, referral partners and agents from and against any loss, liability, damage, penalty or expense (including attorneys’ fees, expert witness fees and cost of defense) each may suffer or incur as a result of claims arising from: (i) any breach by Merchant or any officer, director, manager, member, shareholder, employee, subcontractor, agent or affiliate of Merchant of these Terms of Service, including, without limitation, Merchant’s failure to strictly comply with its obligations set forth in these Terms of Service; (ii) any representation or warranty made by Merchant being false or misleading; (iii) the information provided by Merchant being false or misleading; (iv) any representation or warranty made by Merchant or any employee or agent of Merchant to any third person other than as specifically authorized by these Terms of Service; (v) any negligent act or omission of Merchant or its officers, directors, managers, members, shareholders, employees, subcontractors, agents or affiliates; and/or (vi) any claims made by customers or users of Merchant’s goods or services.
12. Default. If Merchant fails to pay any amount when due or perform any of Merchant’s obligations or covenants required hereunder, then Merchant shall be in default of these Terms of Service. If Merchant defaults hereunder, Compliant Data Services shall have all rights and remedies provided at law or in equity or elsewhere in these Terms of Service, including but not limited to the right to cause a Termination for Breach.
a) Successors and Assigns. These Terms of Service bind and inure to the benefit of each party’s permitted successors and assigns. Merchant may not assign its rights or obligations set forth in these Terms of Service, or change ownership or transfer control of its business, without the written consent of Compliant Data Services, which consent shall be in Compliant Data Service’s sole discretion. Compliant Data Services may assign its rights and/or obligations under these Terms of Service in its sole discretion without the written consent of Merchant.
b) Entire Agreement. These Terms of Service set forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party to these Terms of Service.
c) Choice of Law; Forum. The parties agree that their performance and the transactions under these Terms of Service will be deemed to have occurred in Arizona. These Terms of Service shall be governed by and construed in accordance with the laws of the State of Arizona (irrespective of its choice of law principles). Except as otherwise provided in Section 13(i) below, the parties hereby agree that any suit to enforce any provision of these Terms of Service or arising out of or based upon the Services or the business relationship between the parties hereto shall be brought in the state or federal courts located in Maricopa County, Arizona. Each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party, and each party hereby submits to the exclusive personal jurisdiction and venue of such courts. In any action arising from the alleged breach of these Terms of Service, or to enforce these Terms of Service, the final prevailing party will recover its reasonable attorneys’ fees, costs and expenses from the non-prevailing party.
d) No Waiver. The failure of either party to object to or to take affirmative action with respect to any conduct of the other party which is in violation of these Terms of Service, shall not be construed as a waiver of that conduct or any future breach or subsequent wrongful conduct.
e) Severability. If any part, term or provision of these Terms of Service is declared and determined by any court or arbitrator to be illegal or invalid, such declaration and determination shall not effect the validity of the remaining parts, terms or provisions thereof.
f) Heading. The various headings in these Terms of Service are inserted for convenience only and shall not affect these Terms of Service or any portion hereof.
g) Counterparts. The Order may be executed in two (2) or more counterparts or by fax, each of which shall be deemed an original, all of which together shall constitute one and the same instrument.
h) CONSENT TO CALLS AND SMS TEXTS. MERCHANT HEREBY AUTHORIZES COMPLIANT DATA SERVICES TO SEND, AND MERCHANT CONSENTS TO THE RECEIPT OF, SMS TEXT ALERTS AND ARTIFICIAL OR PRERECORDED VOICE ALERTS FOR THE FOLLOWING DESIGNATED PURPOSES: (I) TO NOTIFY MERCHANT WHEN ITS ORDER IS APPROVED OR ACTIVATED; (II) TO NOTIFY MERCHANT THAT COMPLIANT DATA SERVICES NEEDS ADDITIONAL REQUIRED INFORMATION; (III) TO NOTIFY MERCHANT OF NEW PRODUCTS OR FEATURES OFFERED BY COMPLIANT DATA SERVICES; (IV) TO NOTIFY MERCHANT THAT COMPLIANT DATA SERVICES IS TRYING TO REACH IT; (V) TO NOTIFY MERCHANT OF CUSTOMER SERVICE ISSUES; (VI) TO NOTIFY MERCHANT OF SERVICE OUTAGES; (VII) TO PROVIDE MERCHANT WITH INFORMATION REGARDING ACCOUNT BALANCES, TRANSACTIONS, AND SIMILAR MATTERS; AND (VIII) TO NOTIFY MERCHANT OF ANY MATTERS RELATING TO ITS ACCOUNT. MERCHANT UNDERSTANDS THAT IT WILL RECEIVE FUTURE SMS TEXT ALERTS AND/OR ARTIFICIAL OR PRERECORDED VOICE ALERTS FOR THE AFOREMENTIONED PURPOSES BY OR ON BEHALF OF COMPLIANT DATA SERVICES TO THE TELEPHONE NUMBER DESIGNATED IN THE ORDER AND, HAVING RECEIVED AND REVIEWED THESE DISCLOSURES, MERCHANT UNAMBIGUOUSLY AUTHORIZES COMPLIANT DATA SERVICES TO DELIVER, OR CAUSE TO BE DELIVERED, AND AGREES TO RECEIVE, SUCH ALERTS THROUGH THE USE OF AN AUTOMATIC TELEPHONE DIALING SYSTEM AND/OR AN ARTIFICIAL OR PRERECORDED VOICE. MERCHANT ACKNOWLEDGES THAT THE TELEPHONE NUMBER PROVIDED IS IN THE NAME OF AND CONTROLLED BY MERCHANT, THAT MERCHANT’S CONSENT IS VOLUNTARY AND NOT REQUIRED (DIRECTLY OR INDIRECTLY) AS A CONDITION TO ITS RECEIVING SERVICES FROM COMPLIANT DATA SERVICES OR ITS AFFILIATED COMPANIES IN ACCORDANCE WITH THE AGREEMENT, AND THAT MERCHANT HAS THE RIGHT TO WITHDRAW THIS CONSENT AT ANY TIME BY PROVIDING COMPLIANT DATA SERVICES WITH WRITTEN NOTICE OF SUCH WITHDRAWAL IN ACCORDANCE WITH SECTION 13(n) BELOW. THIS CONSENT IS BEING PROVIDED ELECTRONICALLY IN ACCORDANCE WITH SECTION 13(p) BELOW.
i) Dispute Resolution. Compliant Data Services and Merchant each acknowledge and agree that any controversy, disagreement, dispute or claim arising out of or relating to the Services or these Terms of Service, or any breach in connection therewith or herewith (each, a “Dispute”), will be settled by following the procedures set forth below:
(1) Compliant Data Services, on the one hand, and Merchant, on the other hand, agree first to contact the other to advise of any such Dispute. The party alleging, asserting and/or initiating the Dispute shall contact the other party or parties who is or are alleged to be liable or responsible for such Dispute, and provide a written description of the Dispute, all relevant documents/information and the proposed resolution (the “Claim Notice”). Merchant agrees to contact Compliant Data Services as contemplated above by calling or writing to: Compliant Data Services, Claims Administrator, 7349 N. Via Paseo Del Sur #515-169, 85258, Tel. No. (800) 871-7640.
(2) Merchant and the Claims Administrator for Compliant Data Services shall then seek in good faith to resolve the Dispute. As part of this process, each party to the Dispute shall provide a monetary amount that, if paid to the party alleging, asserting and/or initiating the Dispute, would settle the Dispute (the “Settlement Amount”). If the parties do not agree to a Settlement Amount, or the parties are otherwise unable to settle the Dispute within thirty (30) days of the date of delivery of the Claim Notice, then the parties shall proceed to arbitration, as set forth below.
(3) IN THE ABSENCE OF RESOLVING THE DISPUTE, AND INSTEAD OF SUING IN COURT, COMPLIANT DATA SERVICES AND MERCHANT EACH AGREE TO SETTLE AND RESOLVE FULLY AND FINALLY ALL DISPUTES EXCLUSIVELY BY ARBITRATION, EXCEPT IN THE FOLLOWING LIMITED CIRCUMSTANCES: (I) COMPLIANT DATA SERVICES OR MERCHANT MAY COMMENCE AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT WHERE THE AMOUNT OF THE DISPUTE DOES NOT EXCEED THE JURISDICTIONAL LIMIT OF SUCH COURT; AND (II) MERCHANT MAY FILE A DISPUTE WITH ANY FEDERAL, STATE OR LOCAL GOVERNMENTAL AGENCY THAT CAN, IF THE LAW SO AUTHORIZES, SEEK RELIEF AGAINST COMPLIANT DATA SERVICES ON BEHALF OF MERCHANT. THE AGREEMENT TO HAVE DISPUTES RESOLVED BY ARBITRATION IS MADE WITH THE UNDERSTANDING THAT EACH PARTY IS IRREVOCABLY, KNOWINGLY AND INTELLIGENTLY WAIVING AND RELEASING ITS RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE DISPUTES. Without limitation, Compliant Data Services and Merchant agree that Disputes, as defined above, shall include the following matters: (a) any Dispute by any party against any agent, employee, successor, or assign of the other party or parties, including to the full extent permitted by applicable law, third parties who are not parties to these Terms of Service, whether related to the Services or otherwise; (b) any past, present, and future Dispute; and (c) any Dispute as to the scope, validity or applicability of this Dispute Resolution provision, and/or the arbitrability of any Dispute; and (d) any Dispute against Compliant Data Services, or any other party as stated above, related in any way to the Services, including, but not limited to, the characterization of the transactions referenced in these Terms of Service, privacy, solicitation, or advertising, even if it arises after the Services have terminated.
(4) The foregoing arbitration shall be administered by the American Arbitration Association (the “AAA”) in accordance with its Commercial Arbitration Rules in effect when a Claim Notice is duly provided. If any AAA procedure or rule conflicts with the terms of these Terms of Service, these Terms of Service will apply.
(5) The arbitration shall be governed by the Federal Arbitration Act (the “FAA”), 9 U.S.C. Sections 1-16. Any award by the arbitrator may be entered as a judgment in any court having jurisdiction. Any arbitrator’s decision and award is final and binding, subject only to those exceptions under the FAA. Compliant Data Services and Merchant agree the FAA’s provisions, not state law, govern all questions of whether a Dispute is subject to arbitration.
(6) Unless Compliant Data Services and Merchant agree otherwise, the foregoing arbitration will be conducted by a single neutral arbitrator selected by utilizing the process provided in the AAA’s Commercial Arbitration Rules in effect when Claim Notice is duly filed. The arbitrator shall be a licensed attorney and/or retired judge. Except as otherwise provided below, the arbitration shall be conducted in the county where the principal address of the party against whom the Dispute is initially commenced is located – and for any claim against Compliant Data Services, that address shall be Compliant Data Services, 7349 N. Via Paseo Del Sur #515-169, 85258. The arbitrator shall have no authority to award punitive, consequential or other monetary damages not measured by the prevailing party’s actual damages, except as may be required by statute or as otherwise provided below.
(7) The award of the arbitrator shall be accompanied by a reasoned opinion.
(8) For Disputes of $10,000.00 or less that are initiated by Merchant (“Small Disputes”), the following rules shall apply notwithstanding anything to the contrary in the procedures or rules of the AAA:
a) The arbitration shall be conducted in accordance with the AAA’s Expedited Procedures.
b) The arbitrator shall include a finding as to whether the initiation of such Dispute was frivolous. If it is determined by the arbitrator not to be frivolous, then Compliant Data Services shall pay the fees and costs assessed by the AAA in administering the arbitration.
c) If the arbitrator finds that Compliant Data Services is liable to Merchant for an amount greater than the Settlement Amount presented by Compliant Data Services prior to the commencement of arbitration (after all offsets and counterclaims are applied), then Compliant Data Services shall be required to pay in addition to any award of the arbitrator an amount equal to the greater of (x) $500.00, or (y) the amount of Merchant’s reasonable attorneys’ fees.
d) Merchant may choose to conduct the arbitration in the state of its principal address.
(9) COMPLIANT DATA SERVICES AND MERCHANT EACH AGREE NOT TO PURSUE ARBITRATION ON A CLASS-WIDE BASIS. ARBITRATION WILL BE CONDUCTED SOLELY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
j) Non-Disparagement. Merchant agrees not to disparage Compliant Data Services or its respective vendors, and promises to refrain from engaging, directly or indirectly, in any action, communication or conduct negligently, recklessly or intentionally undertaken to damage the name or reputation of Compliant Data Services.
k) Survival. Notwithstanding anything to the contrary in these Terms of Service, all sections of these Terms of Service that by their nature should survive termination or expiration will survive, including, without limitation, accrued rights to payment, indemnification obligations, warranty disclaimers, and limitations of liability.
l) Modifications to Terms of Service. Compliant Data Services may from time-to-time and at any time amend any provision of these Terms of Service for any reason in its sole discretion, including fees and charges payable by Merchant, whether or not such amounts are set forth in the Order. Compliant Data Services will note the date of the amendment at the top of these Terms of Service, and, unless specified otherwise, the amendment shall become effective at the start of the first billing cycle after Compliant Data Services has provided notice to Merchant of such amendment. Amendments due to changes in any regulatory or legal requirement will become effective at such time that Compliant Data Services may specify, which may be sooner than the beginning of the next billing cycle following the date of notice.
m) Final Sales. Except as expressly stated in these Terms of Service, all sales of Services are final, and all fees are non-refundable once paid.
n) Notices; Consent to Electronic Communications. By applying for the Services and confirming that it has read these Terms of Service, Merchant is confirming to Compliant Data Services that it has the means to access the Internet through its own service provider and download or print electronic communications. Merchant agrees to the receipt of electronic communications by email or by the posting of such information by Compliant Data Services at one or more of Compliant Data Service’s sponsored websites, such as www.datainsure.com. Such communications may pertain to the Services delivered by Compliant Data Services, the use of information Merchant may submit to Compliant Data Services, changes in laws or rules impacting the Services or other reasons, such as amendment of these Terms of Service. In addition, all notices and other communications required or permitted under these Terms of Service by Compliant Data Services to Merchant may also be delivered by Compliant Data Services to Merchant either by FAX, overnight carrier or first class mail, postage or other charges prepaid, addressed and transmitted as set forth below. All notices and other communications required or permitted under these Terms of Service by Merchant to Compliant Data Services shall be delivered by Merchant to Compliant Data Services by overnight carrier or certified mail, postage or other charges prepaid, addressed and transmitted as set forth below. Notice by FAX or e-mail shall be deemed delivered when transmitted. Notice by mail or overnight carrier shall be deemed delivered on the first (1st) business day after mailing or delivery to the carrier. Following are the addresses for the purposes of notices and other communications hereunder, which may be changed by written notice in accordance with this section:
If to Compliant Data Services, addressed and transmitted as follows:
If to Merchant, at the address provided as the billing address, or the FAX number or e-mail address and to the contact listed on the Order.
7349 N. Via Paseo Del Sur, Suite 515, Scottsdale, AZ 85258
o) Further Assurances. At any time or from time to time upon the request of Compliant Data Services, Merchant will execute and deliver such further documents and do such other acts as Compliant Data Services may reasonably request in order to effectuate fully the purposes of these Terms of Service.
p) Electronic Signature. Merchant may become a party to, and become bound by, these Terms of Service by completing the Order and accepting it electronically over the Internet. This is done by clicking or entering “I Agree”, by providing an electronic form of signature or otherwise by affirmatively indicating acceptance or consent where requested on an electronic version of the Order (any such method constituting an “Electronic Consent”). By providing such Electronic Consent, Merchant acknowledges that it has received and reviewed all applicable pages, terms and conditions of these Terms of Service, and it represents, warrants, consents and agrees as follows:
i. The electronic agreement process allows Merchant to sign and agree to legally binding agreements online by providing its Electronic Consent;
ii. Merchant intends to use the electronic agreement process to provide its Electronic Consent;
iii. Merchant’s Electronic Consent is legally binding, and is governed by the Electronic Signatures in Global and National Commerce Act of 2000, and/or the Uniform Electronic Transactions Act governances (or an amended version thereof) in its state of residence, and Merchant agrees to be bound by these governances;
iv. The individual providing Electronic Consent on behalf of Merchant is authorized by Merchant to do so and is at least 18 years old; and
v. The Electronic Consent will be binding upon Merchant, and will not be construed by a court of law to have any less effect than a standard ink or paper signature.