Terms of Service

Payvment, Inc. (“Payvment”) provides a service that enables both sellers and shoppers to engage in ecommerce – from sellers who create and launch storefronts for selling products on social networking sites (“Storefronts”), including through the Payvment Shopping Mall application (the “Application”) accessible at the website http://apps.facebook.com/payvment (the “Application Site”), to sellers who use our “roaming shopping cart” technology, which in turn allows shoppers to shop at various online stores and websites, to add products from such merchants into one shopping cart (the “Roaming Cart”), and to checkout (completing the purchase of each item in the shopping cart from the various websites) in one transaction (collectively, the “Services”).

Please read carefully the following terms and conditions (“Terms”) and our Privacy Policy, which may be found at www.payvment.com/privacy and which is incorporated herein by reference into these Terms. Whether you are a seller or a shopper, these Terms govern your access to and use of the Application Site and Services and Collective Content (defined below), and constitute a binding legal agreement between you and Payvment.

Key Content-Related Terms

"Content" means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.

"Payvment Content" means Content that Payvment makes available through the Application Site, Services or Application, including any Content licensed from a third party, but excluding User Content.

"User Content" means Content that a Seller or Shopper posts, uploads, publishes, submits or transmits to be made available and hosted by Payvment through the Application Site, Services or Application, including photographs and descriptions of items offered for sale on a Storefront and written comments or reviews for Storefronts and products.

"Collective Content" means, collectively, Payvment Content and User Content.

"Seller" means you sell products under your own sales terms and conditions by (a) creating a Storefront on the Application and using User Content to stock your Storefront with products that you sell to Shoppers, or (b) using the Roaming Cart on your online store or website.

"Shopper" means you purchase items either from Sellers through a Storefront, the Application or from multiple third-party sites by using the Roaming Cart.

Certain areas of the Application Site (and your access to or use of certain Services, Application or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Application Site, Services, Application or Collective Content, the latter terms and conditions shall take precedence with respect to your use of or access to that area of the Application Site, Services, Application or Collective Content, as applicable.

YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE APPLICATION SITE, SERVICES OR APPLICATION, OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE APPLICATION SITE OR THROUGH THE SERVICES OR APPLICATION, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED ON OR THROUGH THE APPLICATION SITE OR VIA THE APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE APPLICATION SITE, SERVICES, APPLICATION OR COLLECTIVE CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

Modification

Payvment reserves the right, at its sole discretion, to modify, discontinue or terminate the Application Site, Services or Application or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Application Site or via the Application or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Application Site, Services or Application after we have posted a modification on the Application Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Application Site, Services and Application.

Eligibility

The Application Site, Services and Application are intended solely for persons who are 18 years of age or older. Any access to or use of the Application Site, Application or Services by anyone under 18 is expressly prohibited. By accessing or using the Application Site, Application or Services you represent and warrant that you are 18 years of age or older.

Account Registration for Sellers and Shoppers

You may browse areas of the Application Site and Application or use the parts of the Services without registration with Payvment. In order to access and use certain features of the Application Site, Application and Services and to post any User Content on the Application Site or through the Services or Application you must register to create an account (“Account”). You may register by logging into your account with certain third party social media or social networking sites (“SNS”) (including, but not limited to, Facebook) via the Application, as described herein. If you decide to register through an SNS, with your permission we will use the personal information that you have provided to the SNS (such as your “real” name, email address and other information you make publicly available via the SNS) from the account you have with the applicable SNS and use that information to create your Account. The specific information that we extract may depend on the privacy setting you have with the SNS. You hereby consent to our access to and collection of such personal information about you. During the registration process, you may be required to provide certain information about yourself, as prompted, depending on whether you are a Seller or Shopper, including, but not limited to, your name, a valid email address, your shipping address, your Storefront name and information related to your third party payment service provider.

You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Payvment reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You agree to take sole responsibility for all activities or actions that occur under your Account, whether or not you have authorized such activities or actions. You will immediately notify Payvment of any unauthorized use of your Account.

Account Levels for Sellers

Payvment offers Sellers a free Payvment Account (no fees) and two levels of paid Accounts, a Payvment Premium Account and a Payvment Platinum Account (each, a “Paid Account”). A description of the features and rates associated with these Paid Account levels is available at www.payvment.com/products. You may change your Account level at any time within the Payvment Seller Dashboard at www.my.payvment.com. When you register for a Paid Account, you will be required to provide customary billing information, such as name, billing address and credit card number, and to select a subscription term and the payment frequency. By selecting a Paid Account, you agree to pay the applicable subscription fee and any taxes and other fees that may accrue in relation to your use of the Application Site, Services and Application, if any. All fees are non-refundable and non-transferable, except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.

Payment Terms. If you select a Payvment Premium Account, you have the option of paying the applicable subscription fee on an annual or monthly basis. If you select an annual payment frequency, then the entire subscription fee will be payable in advance. If you select a monthly payment frequency, then you will automatically be charged the applicable subscription fee in advance for the subsequent month. If you cancel your Account less than thirty (30) days before the end of a month, you will be charged for that month. Subscription to a Payvment Platinum Account consists of a one-time, non-refundable set-up fee (“Set Up Fee”), plus recurring, advance, monthly charges of the applicable subscription fee. If you cancel your Payvment Platinum Account less than thirty (30) days before the end of a month, you will be charged for that month. If Payvment is unable to process your payment for any reason, Payvment reserves the right to suspend or cancel your Paid Account.

Recurring Billing. By selecting a Paid Account, you acknowledge that your subscription has a recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. The applicable subscription fee will be billed in advance on a monthly basis and auto-renew as set forth below.

Auto-renewal. Subscriptions to Paid Accounts will be automatically extended for successive renewal periods for the same duration as the subscription term originally selected by you, at the then-current, non-promotional subscription rate. You may cancel your subscription at any time. Please see below for further information.

Payment by Shoppers

All items purchased through a Storefront or a Roaming Cart will be processed by a third party payment service provider. The payment terms and any fees payable by you relating to transactions made through a Storefront and/or Roaming Cart will be based on the agreements between you, the Seller(s) and your designated payment service provider. Payvment is not a party to any agreement between Seller(s) and Shoppers or Seller(s) and third-party payment service providers. You acknowledge and agree that you (and not Payvment) are responsible for complying with the terms and conditions governing your relationship with such Sellers and third-party payment service providers.

Termination

By You. You may cancel your Account, or cancel your subscription to a Paid Account, at any time by cancelling the Paid Account in the Payvment Seller Dashboard at my.payvment.com. Cancellation by you of a Paid Account is effective on the last day of the month that you cancel your subscription and you are responsible for paying, and agree to pay, all fees due to Payvment relating to your use of the Application Site, Services and Application during that month. If you cancel a Payvment Premium Account that was purchased on an annual basis, Payvment will provide you with a pro rata refund of fees for the period of time between the effective date of cancellation and the date of expiration of the term of your subscription.

By Payvment. Payvment reserves the right to discontinue or change the Application Site, Services and Application, including the Paid Account Services, at any time, for any reason and without prior notice to you. In the event of Payvment’s discontinuation of a Payvment Premium Account purchased on an annual basis, Payvment will refund recurring fees (but not any Set Up Fees) paid by you, pro rated proportionally to the amount of time remaining in the then-current subscription period. For monthly subscriptions to Paid Accounts, Services will continue through the end of the month in which Payvment gives you notice of discontinuation and no refund will be provided.

If you breach any of these Terms, Payvment will have the right, at its sole discretion and without prior notice to you, to suspend or deactivate your Account and access to the Application Site, Services and Application, or terminate these Terms and remove any material (including any Content provided by you). In the event of such breach, Payvment will not be required to refund any fees paid by you and you will remain liable for all amounts due hereunder prior to the effective date of suspension, deactivation or termination.

Effect of Termination. After termination, you understand and acknowledge that Payvment will have no further obligation to provide the Application Site, Services and Application. Upon termination, all licenses and other rights granted to you under these Terms will immediately cease. Except as otherwise set forth in these Terms, Payvment will not be liable to you or any third party for termination of the Application Site, Services or Application or termination of your use of the Application Site, Services or Application. Upon any termination or suspension, any information (including User Content) that you have submitted to the Application Site, Services and Application may no longer be accessed by you. Furthermore, Payvment will have no obligation to maintain any information stored in our database related to your Storefront or to forward any information to you or any third party. Any suspension, termination or cancellation will not affect your obligations to Payvment under these Terms (including but not limited to ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.

Licenses Granted by Payvment to Payvment Content and User Content

Subject to your compliance with the terms and conditions of these Terms, Payvment grants you a limited, non-exclusive, non-transferable license: (i) to view, download and print any Payvment Content solely for your personal or internal business purposes; and (ii) to view any User Content to which you are permitted access solely for your personal or internal business purposes. You have no right to sublicense the license rights granted in this section. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Application Site, Services, Application or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Payvment or its licensors, except for the licenses and rights expressly granted in these Terms.

License Granted by Sellers and Shoppers

We may, in our sole discretion, permit Sellers and Shoppers to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Application Site, Services or Application, you hereby grant to Payvment a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content only on, through or by means of the Application Site, Services or Application. Payvment does not claim any ownership rights in any User Content (such as the content of a Seller’s Storefront), and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any User Content. This license permits us to make your User Content (e.g., the User Content that is provided by you as part of your Storefront) available to our partners to access, distribute, market and promote our Application Site, Services and Application (and your Storefront), subject to our terms and conditions.

You acknowledge and agree that you are solely responsible for all User Content that you make available through the Application Site, Services or Application. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Application Site, Services or Application or you have all rights, licenses, consents and releases that are necessary to grant to Payvment and to the rights in such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Payvment’s use of the User Content (or any portion thereof) on, through or by means of the Application Site, Services or Application will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You may add, modify or remove User Content submitted by you at any time. If you remove User Content submitted by you from the Application Site or through the Services, such User Content will be deleted as soon as is practical.

Content from Social Media and Networking Sites

As part of the functionality of the Application Site, Service and Application, you may link your Account with online accounts you may have with third party service providers (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information to Payvment through the Application Site, Services or Application; or (ii) allowing Payvment to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Payvment and/or grant Payvment access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Payvment to pay any fees or making Payvment subject to any usage limitations imposed by such third party service providers.

By granting Payvment access to any Third Party Accounts, you understand that Payvment will access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account (“Third Party Account Content”) so that it is available on and through the Application Site, Services and Application via your Payvment Account. Unless otherwise specified in these Terms, all Third Party Account Content, if any, will be considered to be User Content for all purposes of these Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your Payvment Account on the Application Site, Services and Application. Please note that if a Third Party Account or associated service becomes unavailable or Payvment’s access to such Third Party Account is terminated by the third party service provider, then the Third Party Account Content that was available from such Third Party Account will no longer be available on and through the Application Site, Services and Application. You have the ability to disable the connection between your Payvment Account and your Third Party Accounts, at any time, by accessing the “Account” section of the Third Party Site. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WTH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Payvment makes no effort to review any Third Party Account Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and Payvment is not responsible for any Third Party Account Content.

Storefront Guidelines

Any User Content, including items that Sellers offer for sale via a Storefront associated with the Sellers’ Accounts, must comply with: (i) these Terms, (ii) any applicable guidelines or additional terms, such as the description of Services for Paid Accounts, and (iii) any applicable policies and procedures enumerated by our third-party partners for use of their website(s). For example, if your Storefront is hosted through your Facebook account, you must comply with Facebook’s terms of service and other rules of conduct, in addition to these Terms and any other applicable Payvment terms

While certain User Content and conduct is prohibited, Payvment does not actively monitor or control the User Content posted by a Seller to its Storefront or as feedback by a Shopper to a Storefront, and will not be responsible for the User Content that you make available on the Application Site or through the Services. You agree that you will not do any of the following while using the Application Site or Services:

  • upload, post, publish, submit, transmit or display any User Content that:
    • infringes, misappropriates or violates a third party’s copyright, trademark, trade secret, moral rights or other intellectual property rights or rights of publicity or privacy, unless you have the required licenses, consents and permissions to post such User Content;
    • violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
    • is fraudulent, false, misleading or deceptive (including false or inaccurate personal information or product information or the falsification or deletion of attributions, legal or other proper notices or proprietary designations or labels of the source or origin of any products);
    • is defamatory, obscene, pornographic, vulgar or offensive; 
    • promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
    • is violent or threatening or promotes violence or actions that are threatening to any other person; or
    • promotes illegal or harmful activities or substances;
  • display, list, offer for sale or sell any of the following:
  • alcohol;
  • ammunition and/or firearms;
  • credit cards;
  • hazardous materials;
  • illegal items (including those that promote hate, criminal and/or illegal activities);
  • items that infringe upon the rights of any third party;
  • prescription drugs;
  • stolen property or contraband items; and
    • tobacco products;
  • collect or store any personally identifiable information from the Application Site, Services or Application from other users of the Application Site, Services or Application without their knowledge or express permission;
  • send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
  • impersonate others in a manner that does or is intended to mislead, confuse or deceive others; or
  • use the Application Site, Services or Application for any unlawful purposes or for promotion of illegal activities or products.

In addition, Sellers may not offer for sale or sell any items on their Storefronts that are prohibited or restricted by the website on which their Storefront appears. For example, if your Storefront is on Facebook, you must comply with Facebook’s terms of service and rules of conduct.

General Prohibitions

In addition to the above Storefront Guidelines, you agree not to do any of the following on the Application Site, Services or Application:

  • Use, display, mirror or frame the Application Site or Application, or any individual element within the Application Site, Services or Application, Payvment’s name, any Payvment trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Payvment’s express written consent;
  • Access, tamper with, or use non-public areas of the Application Site or Application, Payvment’s computer systems, or the technical delivery systems of Payvment’s providers;
  • Attempt to probe, scan, or test the vulnerability of any Payvment system or network or breach any security or authentication measures;
  • Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Payvment or any of Payvment’s providers or any other third party (including another user) to protect the Application Site, Services, Application or Collective Content;
  • Attempt to access or search the Application Site, Services, Application or Collective Content or download Collective Content from the Application Site, Services or Application through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Payvment or other generally available third party web browsers;
  • Use any meta tags or other hidden text or metadata utilizing a Payvment trademark, logo URL or product name without Payvment’s express written consent;
  • Use the Application Site, Services, Application or Collective Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
  • Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Application Site, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
  • Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Application Site, Services, Application or Collective Content;
  • Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Application Site, Services or Application;
  • Impersonate or misrepresent your affiliation with any person or entity;
  • Violate any applicable law or regulation; or
  • Encourage or enable any other individual to do any of the foregoing.

Payvment reserves the right at all times (but not will not have an obligation) to terminate your Account and/or remove or refuse to distribute any User Content on the Application Site and Services which violates these Terms, including the Storefront Guidelines. Payvment will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Payvment may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Payvment has no obligation to monitor your access to or use of the Application Site, Services, Application or Collective Content, or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Application Site and Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Payvment reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content, including, any User Content, that Payvment, at its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Application Site, Services or Application.

Usage and Storage of User Content by Sellers

Payvment does not currently place any limitations on the number of items listed or amount of data storage used for User Content by Sellers to support their Storefront. Payvment reserves the right, however, to establish general practices and limits concerning use of the Application Site, Services, Application and Paid Accounts, including, without limitation, the maximum storage space that will be allotted on Payvment's servers on a Seller’s behalf for your User Content (which could limit the number of items you may sell on a Storefront). If we do implement such restrictions, we will notify you of such limits in advance before such limits take effect.

Privacy

Please see Payvment’s Privacy Policy at www.payvment.com/privacy for information and notices concerning Payvment’s collection and use of your personal information.

Ownership

The Application Site, Services, Application and Collective Content are protected by copyright, trademark and other laws of the United States and foreign countries. You acknowledge and agree that Payvment and its licensors exclusively own all right, title and interest in and to the Application Site, Services, Application and Collective Content, including all associated intellectual property rights. All trademarks, service marks, logos, trade names and any other proprietary designations of Payvment used herein are trademarks or registered trademarks of Payvment. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties. You may not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Application Site, Services, Application or Collective Content.

Payvment welcomes and encourages you to provide feedback, comments and suggestions for improvements to the Application Site, Services or Application (“Feedback”). You may submit Feedback by emailing us at support@payvment.com. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.

The Services are Available “AS-IS”

Your access to and use of the Application Site, Services, Application and Collective Content are at your own risk. THE APPLICATION SITE, SERVICES, APPLICATION AND COLLECTIVE CONTENT ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, PAYVMENT AND ITS PARTNERS EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. PAYVMENT MAKES NO WARRANTY, AND DISCLAIMS ALL RESPONSIBILITY AND LIABILITY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR COLLECTIVE CONTENT PURCHASED OR OBTAINED THROUGH THE APPLICATION SITE, SERVICES OR APPLICATION OR THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE APPLICATION SITE, SERVICES, APPLICATION OR ANY COLLECTIVE CONTENT THEREON. PAYVMENT WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE APPLICATION SITE, SERVICES, APPLICATION OR COLLECTIVE CONTENT. PAYVMENT MAKES NO WARRANTY THAT THE APPLICATION SITE, SERVICES, APPLICATION OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PAYVMENT OR THROUGH THE APPLICATION SITE, SERVICES, APPLICATION OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH USERS OF THE APPLICATION SITE, SERVICES AND APPLICATION AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE APPLICATION SITE, SERVICES AND APPLICATION. YOU UNDERSTAND THAT PAYVMENT DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE APPLICATION SITE, SERVICES AND APPLICATION, NOR DOES PAYVMENT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE APPLICATION SITE, SERVICES AND APPLICATION. PAYVMENT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE APPLICATION SITE, SERVICES AND APPLICATION OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE APPLICATION SITE, SERVICES AND APPLICATION. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE APPLICATION SITE, SERVICES AND APPLICATION AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE APPLICATION SITE, SERVICES AND APPLICATION, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.

Links

The Application Site and Services may contain links to third-party websites or resources. You acknowledge and agree that Payvment is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Payvment of such websites or resources or the content, products or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

Indemnity

You agree to defend, indemnify and hold Payvment and its partners, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Application Site, Services, Application or Collective Content, including your Storefront, or your violation of these Terms.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYVMENT AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE APPLICATION SITE, SERVICES, APPLICATION OR COLLECTIVE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE APPLICATION SITE, SERVICES OR APPLICATION OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE APPLICATION SITE, SERVICES OR APPLICATION, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT PAYVMENT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL PAYVMENT’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE, THE APPLICATION SITE, SERVICES, APPLICATION OR COLLECTIVE CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO PAYVMENT FOR USE OF THE APPLICATION SITE, SERVICES, APPLICATION OR COLLECTIVE CONTENT, IF YOU ARE REGISTERED FOR A PAID ACCOUNT, OR ONE HUNDRED DOLLARS ($100), IF YOU ARE REGISTERED FOR A FREE ACCOUNT, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PAYVMENT AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE LIMITATIONS ABOVE MAY NOT APPLY TO YOU.

Controlling Law and Jurisdiction

These Terms and any action related thereto shall be governed by the laws of the State of California, without respect to its conflict of laws principles. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in San Francisco County, California, and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

Entire Agreement

These Terms shall constitute the entire agreement between you and Payvment concerning the Application Site, Services, Application and Collective Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Payvment and you regarding the Application Site, Services, Application and Collective Content. There Terms do not supersede or replace the API Terms of Service which govern access to and use of the Payvment APIs.

Assignment

You may not assign or transfer these Terms, by operation of law or otherwise, without Payvment’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Payvment may assign or transfer these Terms at its sole discretion and without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Notices

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given: by Payvment (a) via email (in each case to the address that you provide) or (b) by posting to the Application Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Dispute Resolution

You and Payvment agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Application Site, Services or Application (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Payvment are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Payvment otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/si.asp?id=3477 and a separate form for California residents at www.adr.org/si.asp?id=3485.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure. Unless you and Payvment otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Payvment submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Payvment will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Payvment will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Changes. Notwithstanding the provisions of the “Modification” section above, if Payvment changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to notify@payvment.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Payvment’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Payvment in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

General

The failure of Payvment to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Payvment. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

If you have any questions about these Terms, please contact us at support@payvment.com

Payvment API

Developers or Sellers who use Payvment’s APIs are subject to Payvment’s API Terms of Service, which are incorporated herein by reference into these Terms. For more information, please see Payvment’s developer website at open.payvment.com

Effective October 3, 2011