PayTrace Terms & Conditions

 

THESE PAYTRACE TERMS & CONDITIONS (HEREINAFTER “AGREEMENT”) CONSTITUTE A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND PAYTRACE, LLC. PLEASE READ IT CAREFULLY.  

BY CHECKING THE BOX INDICATING THAT YOU AGREE TO PAYTRACE’S TERMS AND CONDITIONS OR BY USING THE SERVICES DEFINED BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY (AND THAT YOUR COMPANY WILL BE BOUND BY) ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL DOCUMENTS INCORPORATED BY REFERENCE. IF YOU ARE USING THE SERVICE ON BEHALF OF ANY ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT THESE TERMS AND CONDITIONS ON SUCH ENTITY’S BEHALF. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU AGREE NOT TO CHECK THE BOX INDICATING THAT YOU AGREE TO PAYTRACE’S TERMS AND CONDITIONS AND WILL NOT USE THE PAYTRACE SERVICES. 

THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION IN SECTION 13.5 THAT AFFECTS YOUR RIGHTS. PLEASE REVIEW IT CAREFULLY. If you have a dispute with that cannot be resolved informally, the arbitration provision requires resolution of the dispute in an individual arbitration or small claims court proceedings. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court.

1. INTRODUCTION

1.1 Introduction. In this Agreement (“Agreement”), “Merchant”, “you” and “your” refer to you the customer (and your designated agents, including your administrative contact) and “PayTrace”, “we”, “us” and “our” refer collectively to PayTrace, Inc. and its wholly owned subsidiaries. PayTrace and Merchant are each individually, a “Party” and collectively, the “Parties”. This Agreement explains our obligations to you, and your obligations to us in relation to the Service(s) you purchase. When you use your account or permit someone else to use your account to purchase or otherwise acquire access to additional PayTrace Service(s) or to modify or cancel your PayTrace Service(s), you are bound by the actions of such individuals. Acceptance of your requests for Services and the performance of our Services will be deemed to occur at our offices in Spokane Valley, Washington. 

1.2 License and Restrictions. PayTrace and its licensors grant you a limited nonexclusive, non-transferable license to use the Software in the course of using the Services for the purposes stated herein.  You may not rent, lease or otherwise transfer your rights to use the Software to a third party. You must comply with the implementation and use requirements contained in all PayTrace documentation accompanying the Services. If you do not comply with PayTrace’s implementation and use requirements, you will be liable for all resulting damages suffered by you, PayTrace and third parties.

2. DEFINITIONS 

2.1 “Financial Institution” shall mean banks, trust companies and other entities that deal with financial transactions having business relationships with one or more Financial Processors that have agreed to evaluate or provide merchant accounts and payment authorization services to merchants. 

2.2 “Financial Processor” shall mean an entity with which PayTrace has established a relationship that performs the back-end authorization and processing of Transactions between your Financial Institution and the cardholder’s bank. 

2.3 “Services” shall mean the PayTrace Virtual Terminal services used by you and any add-on services offered by PayTrace. Current descriptions of PayTrace’s payment processing software or PayTrace Virtual Terminal services can be found at the URL: https://PayTrace.com. 

2.4 “Software” shall mean the code included in PayTrace’s client applications (such as, but not limited to, HTML and JavaScript code), mobile applications (such as, but not limited to, PayTraceGO), printer drivers, distributed binaries related documentation, code samples and other client software or code which PayTrace provides to you, including updates, to enable PayTrace to provide the Services to you.

2.5 “PayTrace Virtual Terminal” means PayTrace’s online account management tools for merchants using PayTrace’s payment processing software and / or PayTrace Virtual Terminal add-on Services that are part of the Services. 

2.6 “Transaction” shall mean purchases/sales and refunds/credits.  

3. MERCHANT OBLIGATIONS

3.1. General Service Requirements. You shall be solely responsible for:

1. Establishing, and maintaining a connection to the internet and running software, such as, without limitation, operating systems and browsers that are actively supported and regularly updated with current updates.
2. Updating to the most current Software version and security updates and patches necessary to properly operate the Services.
3. Providing PayTrace with all information necessary to provide the Services you have purchased. You must keep your information current and updated on the PayTrace Virtual Terminal.
4. Fulfilling all orders for products and services placed through the Services that are sold by you to your customers.
5. Transmitting your Transaction data to PayTrace servers or via the PayTrace Virtual Terminal and ensuring that any data stored or transmitted by you in conjunction with the Services is accurate, complete, in the form requested by PayTrace, and is securely collected and is not corrupted due to your systems. 
6. Reviewing the Transaction records in your account on a regular basis and notifying PayTrace promptly of suspected unauthorized activity through your account. 
7. Establishing and maintaining a merchant service account with one or more Financial Institutions and maintaining PCI compliance as prescribed by said Financial Institution. The terms of such relationship shall be determined solely by you and the Financial Institution. 
8. Keeping your login name and password confidential. You must notify PayTrace immediately upon learning of any unauthorized use or disclosure of your user name or password. You shall be solely responsible for (i) periodically updating your passwords for access to the Services, and (ii) creating passwords that are reasonably “strong” and compliant with PayTrace’s requirements. A “strong” password is at least seven characters long, does not contain all or part of the users account name, and contains at least three of the four following categories of characters: uppercase characters, lowercase characters, base 8 digits, and symbols found on the keyboard (such as !, @, #). Strong passwords should be generated in such a way that knowledge of one does not lead to knowledge of another. You are solely responsible for maintaining all necessary security and control of all user names, passwords, and any other credentials issued in connection with the Services, and you acknowledge and agree that PayTrace will not be liable to you or any third parties for any fraud, negligent acts, or any unintended use of the Services that may occur as a result of your breach of your security and control obligations regarding the usernames, passwords, and other credentials. 
9. Managing users to whom you provide access to your PayTrace Services and eliminating such access when they are no-longer authorized to have access.
10. Maintaining commercially reasonable business practices in conjunction with use of the Services, collecting, storing and transmitting your customer data in a secure manner and protecting the privacy of your customer data. You shall comply with PayTrace’s requests for reasonable action on your part, to the extent necessary, to maintain security and integrity of the Services.
11. Using the Services in accordance with the applicable user guides and other documentation; and not using or permitting others to use information obtained through the use of the Services for any purpose other than as intended. 
12. Ensuring that your storage of any data through the Services complies with all applicable laws, regulations, rules (e.g., any PCI compliance requirements), policies, and is consistent with Section 5.

3.2. Proprietary Rights. Except as otherwise set forth herein, all right, title, and interest in and to all, (i) registered and unregistered trademarks, service marks, and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, and software; and (vi) all other intellectual property, proprietary rights, or other rights related to intangible property, which are used, developed, comprised by, embodied in, or practiced in connection with any of the Services identified herein (“PayTrace Intellectual Property Rights”) are owned by PayTrace or its licensors, and you agree to make no claim of interest in or ownership of any such PayTrace Intellectual Property Rights. You acknowledge that no title to the PayTrace Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Services or any other service of PayTrace or that of its licensors, other than the rights expressly granted in this Agreement. To the extent that you create any Derivative Work (i.e., any work that is based upon one or more preexisting versions of a work provided to you by PayTrace, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation, or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by PayTrace and all right, title and interest in and to each such Derivative Work shall automatically vest in PayTrace. PayTrace shall have no obligation to grant you any right in any such Derivative Work. Except to the extent permitted by applicable law, you shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Services or any components thereof, or otherwise apply any procedure or process to the Services or components thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings or any algorithm, data, process, procedure or other information contained therein. You shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Software, Services, or components thereof.

 

3.3. Code of Conduct.  You agree that you will not at any time conduct your business in any manner that directly or indirectly offers, sells, leases, licenses or displays, delivers, advertises, recommends, or promotes any product(s), service(s), data, information, image(s), text and/or any content which:

1. is unlawful or violates any applicable local, state, federal, national or international law, statute, regulation, rule (including any rule specific to PCI compliance), or policy.
2. infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of PayTrace or any third party.
3. contains harmful content, including, without limitation, software viruses, Trojan horses, worms, time bombs, cancel bots, spy-ware, or any other files, software programs, or technology that is designed or intended to disrupt, damage, surreptitiously intercept, or expropriate the Services or any system, program, data, or personal information, or limit the functioning of any software, hardware, or equipment or to damage or obtain unauthorized access to any data or other information of any third party.
4. violates any U.S. export or import laws, including, without limitation, the Export Administration Act and the Export Administration Regulations maintained by the Department of Commerce.
5. offers or disseminates fraudulent goods, services, schemes, or promotions (i.e., make money fast schemes, chain letters, pyramid schemes) or engage in any unfair deceptive act or practice.
   
   

The foregoing list is a non-exhaustive list of prohibited goods and services.

 

3.4. Enforcement.  PayTrace reserves the right and has absolute discretion to terminate or suspend your access to the Services and Software if it determines that your activities violate this Agreement. Without limitation, PayTrace also reserves the right to report any activity (including, but not limited to, the disclosure of any Data, as defined below) that it suspects may violate any applicable law, regulation, rule, or policy to appropriate law enforcement officials, regulators, or other appropriate third parties. PayTrace also may cooperate with appropriate law enforcement agencies to assist in the investigation and prosecution of any illegal conduct. If you want to report any violations of these guidelines, please contact abuse@PayTrace.com.

 

4.1 Services. Subject to the terms in this Agreement and, where applicable, your compliance with your obligations to any reseller of the Services, PayTrace agrees to provide you the Services for which you enroll, including (i) transmission of Transaction information to Financial Processors, (ii) access to standardized reports regarding your Transactions processed using the Services, and (iii) access to certain reporting tools to assist you in accounting activities. PayTrace hereby grants to you the right to access and use the Services in accordance with this Agreement.

 

4.2 Modification of Terms; Changes to Services. Except as otherwise provided in this Agreement, you agree that PayTrace may: (i) revise the terms and conditions of this Agreement, or (ii) change the Services provided under this Agreement at any time. In such case, you shall be notified of said change(s) through electronic or written means at least thirty (30) days in advance of the effective date of such change in accordance with Section 13.7.  If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice as set forth in this Agreement. Notice of your termination will be effective upon our receipt and processing of the notice. In the event of your termination, any fees paid by you that are with us will be nonrefundable (except as otherwise expressly stated herein or as required by law). However, unless otherwise provided under this Agreement, you will not incur any additional fees from us for the Service following your termination. By continuing to use Services or Software after any revision to this Agreement or change to the Services, you agree to abide by and be bound by any such revisions or changes.

 

4.3 Secure Transactions. PayTrace has implemented and will maintain industry standard security systems for the transmission and storage of information regarding your Transactions. PayTrace does not guarantee the security of any Data, and PayTrace will not be responsible in the event of any infiltration of its security systems, provided that PayTrace has used commercially reasonable efforts to prevent any such infiltration. PayTrace protects data by controlling both physical and electronic access to all sensitive data. Access is limited to individuals with specific business justification to access and manage the data, and their access is closely monitored and controlled. PayTrace is currently and will continue to be compliant with industry requirements such as the PCI Data Security Standard.

 

The Services allow for you to store Transaction data on PayTrace’s network.  In the event that you store Transaction data externally to PayTrace’s servers, you acknowledge and agree that you, and not PayTrace, are responsible for the security of Transaction data or any other information stored by you, and that PayTrace is not responsible for any losses due to vulnerabilities or other matters related to a third party’s storage of your Transaction data or other information.

 

4.4 Technical Support for Services. PayTrace shall provide the technical support services to you. Details of PayTrace support services may be found at help.paytrace.com and paytrace.net/contact.  Support for financial related items may be provided by a Financial Institution.

 

5. PRIVACY

5.1 Data Collection and Consent. You acknowledge and agree that in the course of providing the Services, PayTrace will capture and process certain Transaction and user information (collectively, the “Data”), which may include personal data. As between the Parties, PayTrace shall act as a service provider (or processor) of personal data. You agree to provide to PayTrace only the Data that is required in order to provide the Services. You represent and warrant that you have complied with all applicable laws with respect to Data provided to PayTrace, including but not limited to providing notice to, and obtaining consent from, any individuals whose personal data may be processed by PayTrace in the course of providing our Services to you. You assume all liability for compliance with applicable privacy and data protection laws with respect to Data that PayTrace may process to provide you the Services. 

5.2 PayTrace Data Processing. PayTrace shall process Data (i) as it deems reasonable to perform the Services contemplated in this Agreement (including disclosing Data to third parties providing services requested by Merchant); (ii) to maintain the Data in accordance with applicable law, regulation, rules, or policy, and/or as necessary for record keeping, internal reporting, and support purposes; (iii) to calculate merchant averages by region or industry; (iv) to provide Merchant with analytic products and services; (v) for research and development purposes; (vi) to provide additional or enhanced products and services; and/or (vii) if required by law or court order or other legal process, or to defend PayTrace’s rights in a legal dispute. Except as otherwise provided in this Agreement, PayTrace will have no obligation to store, retain, report, or otherwise provide any copies of, or access to, any records of Data or of other information PayTrace may create or process in the course of performing the Services. 

5.3 Security. You are solely responsible for the security of Data residing on servers owned or operated by you, or a third party designated by you. You must comply with all applicable laws, regulations, rules, and policies governing the security, privacy, collection, retention and use of the Data. 

5.4 Security Incidents. If you become aware of any suspected or actual unlawful or unauthorized access to any systems, credentials, or Data related to the Services, including misappropriation, loss, or other compromise of the security, integrity, availability, or confidentiality of Data related to the Services (a “Security Incident”) you will: (i) take immediate steps to address the Security Incident and mitigate potential harm that may result from the Security Incident; (ii) promptly notify PayTrace in writing of the Security Incident, providing a description of what occurred including the date and time you became aware of the Security Incident; (iii) comply with all applicable laws regarding notification of the Security Incident to any affected parties and/or regulatory authorities; and (iv) undertake all appropriate remedial efforts and other actions to eliminate identified vulnerabilities and prevent any further Security Incidents. If written notification of the Security Incident to individuals or authorities is required, you will coordinate and cooperate with PayTrace with respect to the content, wording, and timing of such notification.

6. FEES 

If you have purchased your Services through a reseller, all fees are governed by your Agreements with such reseller.   If you purchased your Services directly from PayTrace, a separate agreement regarding fees governs payments to PayTrace. 

7. WARRANTY; DISCLAIMER  

7.1 PayTrace represents and warrants that (i) it has all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (ii) all corporate action on the part of PayTrace, its officers, board of directors and stockholders necessary for the performance of its obligations under this Agreement has been taken. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PAYTRACE AND IT LICENSORS, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, AND ASSIGNS, AS APPLICABLE, MAKE NO OTHER WARRANTY, EXPRESS, IMPLIED OR STAUTORY, REGARDING THE SOFTWARE OR SERVICES, AND NOTHING CONTAINED IN THE AGREEMENT WILL CONSTITUTE SUCH A WARRANTY. PAYTRACE DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. PAYTRACE FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR WITHOUT COMPROMISE OF THE SECURITY SYSTEMS RELATED TO THE SERVICES, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. PAYTRACE FURTHER EXPRESSLY DISCLAIMS ANY LIABILITY FOR UNAUTHORIZED ACCESS OF FACILITIES, TO DATA, OR PROGRAMS DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND PAYTRACE’S REASONABLE CONTROL. ANY SUCH WARRANTIES ARE DISCLAIMED.

7.2 Merchant represents and warrants that it shall comply with all applicable privacy, consumer and other laws, regulations, rules, and policies with respect to its (i) provision, use, and disclosure of data, including the Data; (ii) dealings with the users providing such data; and (iii) use of the Services. Additionally, Merchant represents and warrants that (a) it has all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (b) all corporate action on the part of Merchant, its officers, board of directors and stockholders necessary for the performance of its obligations under this Agreement has been taken; (c) this Agreement constitutes its valid and legally binding obligation, enforceable against it in accordance with the terms hereof; (d) if Merchant is a corporation, then it is a corporation in good standing in its jurisdiction of incorporation; (e) it has read and understands the entire Agreement and desires to be bound thereby, and it has been represented by counsel of its own choosing; and (f) it represents and warrants that, except as expressly set forth herein, no representations of any kind or character have been made to induce it to execute and enter into this Agreement.

7.3 In the event that any Transactions are eligible for interchange incentive pricing, PayTrace does not warrant or guaranty that Transactions will qualify for any such structured pricing. Merchant acknowledges that such interchange reporting, data, calculations, adjustments, or determination of a Transaction’s qualifications for interchange discount pricing are not generated or determined by PayTrace but are generated and determined by card payment networks and/or other third-parties. 

7.4 The Services may operate in conjunction with or be provided through software, hardware, or services provided by third parties. PayTrace will have no obligation with regard to, and makes no representation or warranty related to, such third party services or any third party terms, conditions, or agreements. Merchant will look solely to the providers of such third party services with regard to warranty, maintenance, or other support. NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO THIRD PARTY PRODUCTS OR SERVICES. MERCHANT’S USE OF THIRD PARTY PRODUCTS AND SERVICES IS AT MERCHANT’S OWN RISK. PAYTRACE ASSUMES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM ANY THIRD PARTY PRODUCT OR SERVICE.

8. INDEMNIFICATION. 

8.1 Mutual Indemnification Obligations. Each Party shall defend, indemnify, save and hold harmless the other Party and its officers, directors, members, employees, agents, representatives, successors, and assigns from any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from the indemnifying Party’s material breach of any duty, representation or warranty of this Agreement. 

8.2 Customer’s Indemnification Obligations.  Merchant shall defend, indemnify, save and hold harmless PayTrace and its parent company, affiliates, licensors, officers, directors, members, employees, agents, representatives, successors, and assigns from any and all third party claims, demands, liabilities, costs or expenses, including, but not limited to, reasonable attorneys’ fees and fines, resulting from (i) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Merchant or any of Merchant’s employees, agents or customers; (ii) the reliability, accuracy, or legitimacy of Data, or other data or information submitted by Merchant to PayTrace; (iii) Transactions submitted by Merchant to Customer; (iv) any alleged infringement of a patent, copyright, trademark, or other intellectual property right resulting from Merchant’s actions; (v) any Merchant actions or omissions in regards to its customers and/or end users; (vi) any alleged or actual violation by Merchant of any applicable laws, regulations, rules, or policies.

8.3 Indemnification Procedure. A Party’s right to indemnification under the Agreement is conditioned upon the following: (i) prompt written notice to the Party obligated to provide indemnification of any claim, action, or demand for which indemnity is sought; (ii) control of the investigation, preparation, defense and settlement thereof by the indemnifying Party; and (iii) such reasonable cooperation by the indemnified Party, at the indemnifying Party’s request and expense, in the defense of the claim. The indemnified Party shall have the right to participate in the defense of a claim by the indemnifying Party with counsel of the indemnified Party’s choice at the indemnified Party’s expense. The indemnifying Party shall not, without the prior written consent of the indemnified Party, settle, compromise or consent to the entry of any judgment that (a) makes any admissions in the indemnified Party’s name, (b) imposes any liability upon the indemnified Party, or (c) interferes with or disrupts the indemnified Party’s business operations in any manner.

8.4 Limitations. This Section is subject to the terms of Section 9. 

9. LIMITATIONS ON LIABILITY 

You acknowledge that PayTrace is not a financial or credit reporting institution. PayTrace is responsible only for providing data transmission to effect or direct certain payment authorizations for you and is not responsible for the results of any credit inquiry, the operation of web sites of Financial Institutions or any third party, the availability or performance of the internet, or for any damages or costs you suffer or incur as a result of any instructions given, actions taken or omissions made by you, a Financial Processor, your Financial Institution, or any third party. IN NO EVENT SHALL PAYTRACE’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO PAYTRACE BY MERCHANT HEREUNDER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. IN NO EVENT SHALL PAYTRACE OR ITS LICENSORS HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE SOFTWARE OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT PAYTRACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 

Notwithstanding the above, the limitations set forth above shall be enforceable to the maximum extent allowed by applicable law. YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF NOT KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

10. TERM AND TERMINATION 

Either Party may terminate the Services at any time for any reason by providing written or email notification to the other, and if you purchased your Services through a reseller, you should notify your reseller. Upon termination of this Agreement, PayTrace shall discontinue providing Services to you. In the event of termination, PayTrace shall retain records of Transactions for one year from date of Transaction creation.

11. CONFIDENTIALITY 

11.1 Confidential Information. “Confidential Information” means any confidential, trade secret, or proprietary information (which may be business, financial, or technical information) disclosed by one Party to the other under this Agreement that is marked confidential or if disclosed orally designated as confidential at the time of disclosure, or that should be reasonably understood to be confidential. 

11.2 Confidentiality Obligations. Except as set forth below, each Party (i) shall not disclose to any third Party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement and for purposes of performing this Agreement, and (ii) shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance. Each Party further agrees to use the other Party’s Confidential Information only for the purpose of its performance under this Agreement. In addition, the receiving Party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects which embody Confidential Information and which are provided to the receiving Party hereunder. 

11.3 Limitation of Confidentiality. The Obligations set forth in Section 11.2 (“Confidentiality Obligations”), above, do not apply to information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving Party knew prior to receiving such information from the disclosing Party or develops independently without access or reference to the Confidential Information, or (iv) is disclosed with the written approval of the disclosing Party. 

11.4 Exceptions to Confidentiality. Notwithstanding the Confidentiality Obligations set forth in Section 11.2 above, each Party may disclose Confidential Information of the other Party as permitted by law (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, but only after alerting the other Party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other Party a reasonable period of time within which to seek a protective order against the proposed disclosure; or (ii) on a “need-to-know” basis under an obligation of confidentiality substantially similar in all material respects to those Confidentiality Obligations in this Section to its legal counsel, accountants, contractors, consultants, banks, and other financing sources. 

12. FEEDBACK

PayTrace may provide Merchant with a mechanism to provide feedback, suggestions, and ideas about the Services or Software (“Feedback”). Merchant agrees that PayTrace may, in its sole discretion, use the Feedback in any way, including in future modifications of the Software or Services and any related advertising and promotional materials. Merchant grants PayTrace a perpetual, worldwide, fully transferable, non-revocable, royalty free license to use, reproduce, modify, create derivative works from, perform, distribute, and display for any purpose any information Merchant provides to Servicers in the Feedback. 

13. MISCELLANEOUS TERMS 

13.1 Force Majeure. Neither Party shall be deemed in default hereunder, nor shall it hold the other Party responsible for, any cessation, interruption, or delay in the performance of its obligations hereunder, except for your payment obligations hereunder, due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the Party relying upon this Section shall give the other Party written notice thereof promptly and, in any event, within five (5) business days of discovery thereof, and  shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided, however, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, either Party may immediately terminate the Agreement. 

13.2 Entire Agreement and Modification. The terms in this Agreement, together with any information provided by you, constitute the entire agreement between PayTrace and you regarding the subject matter and such terms supersede any prior or simultaneous agreement, terms, negotiations, whether written or oral, or whether established by custom, practice, policy or precedent, between the Parties hereto. You acknowledge and agree that in the event that you propose additional terms, provisions, or language to this Agreement, those terms shall be null and void and the terms of this Agreement shall prevail. 

13.3 Severability. In the event that any provision of this Agreement is unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

13.4 No Assignment. You may not assign or delegate this Agreement or any of your rights or obligations hereunder without the prior written consent of PayTrace. 

13.5 Dispute Resolution; Waiver of Jury Trials; Class Action Waiver.  

BY ENTERING INTO THIS AGREEMENT THE PARTIES AGREE TO RESOLVE ALL DISPUTES (EXCEPT FOR SMALL CLAIMS, DESCRIBED BELOW), THROUGH MANDATORY, FINAL, BINDING ARBITRATION ADMINISTERED BY, AND PURSUANT TO THE RULES PRESCRIBED BY, THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). THE PARTIES EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY. MERCHANT EXPRESSLY WAIVES ANY RIGHT TO FILE, ASSERT, OR PARTICIPATE IN A CLASS ACTION AGAINST PAYTRACE OR ITS LICENSORS. MERCHANT WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH A CLASS OR REPRESENTATIVE ACTION. CONSISTENT WITH THIS AGREEMENT, ANY CLAIM BY MERCHANT MUST BE BROUGHT IN MERCHANT’S INDIVIDUAL CAPACITY.

This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, not state arbitration law, will govern the interpretation and enforcement of this Arbitration Provision as well as the arbitrability of all disputes. However, applicable federal law or Washington law, as applicable, shall apply to and govern the substance of any disputes. Any state statutes pertaining to arbitration shall not be applicable under this Arbitration Provision.

With the exception of any claim that is otherwise eligible to be filed as a small claim in the respective Party’s local jurisdiction, all disputes or claims arising out of or relating to this Agreement, or the breach thereof, or any claim or dispute between the Parties to this Agreement, shall be settled by arbitration administered by American Arbitration Association (“AAA”) in accordance with the expedited procedures of its Commercial Arbitration Rules (“AAA Rules”). Arbitration(s) shall be conducted by a single, neutral arbitrator. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction for purposes of enforcement of such award. All in-person obligations shall be conducted in King County, Washington. Notwithstanding the option for in-person arbitration proceedings, the Parties consent to conduct arbitration proceedings remotely, including by telephone, video conference, or on written submissions, upon mutual agreement or at the discretion of the arbitrator. Consistent with the Party’s intent for expedited resolution of disputes, pre-hearings shall only be required in the event of matters of a complex nature. Any pre-hearing information required to be exchanged shall be limited to the reasonable production of relevant, non-privileged documents.

Disputes under this Agreement include any dispute regarding whether a particular controversy is subject to arbitration, including any claim as to the enforceability of this arbitration provision. As used in this arbitration provision, PayTrace and Merchant includes each Party’s officers, directors, employees, members, affiliates, agents, successors, and assigns, and any other Party that you may contend is jointly or severally liable with any such persons or entities. If there is a conflict between this arbitration provision and the rest of this Agreement, this arbitration provision shall govern. Conflicts with AAA Rules. Any conflict between the AAA Rules and these arbitration provisions shall be resolved in favor of these arbitration provisions.

13.6  Venue and Jurisdiction. The validity of this Agreement and the rights, obligations, and relations of the Parties hereunder shall be construed and determined under and in accordance with the laws of the State of Washington, without regard to conflicts of law principles. In the event that any matter is litigated rather than arbitrated, each Party consents to the exclusive venue and jurisdiction of the appropriate state or Federal courts for King County, WA for any dispute arising out of or related to this Agreement.

13.7 Notice. Except as otherwise expressly stated in this Agreement, all notices to PayTrace shall be in writing and delivered, via courier or certified or registered mail, to PayTrace, LLC, c/o NorthAB, LLC Attention: Legal Department, with a copy to 12709 Mirabeau Parkway STE #11, Spokane Valley, WA 99216 250 Stephenson Hwy, Troy, MI 48083, or any other address provided by PayTrace. All notices to you shall be delivered to your mailing address, FAX number, or e-mail address as provided by you in your account information, as updated by you pursuant to this Agreement. 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. Unless you choose to opt-out of receiving marketing notices, you authorize PayTrace to notify you as our customer, via commercial e-mails, telephone calls and other means of communication, of information that we deem is of potential interest to you, including without limitation, communications describing upgrades, new products and Services or other information pertaining to the Services. You acknowledge that you have access to the internet through your own service provider and download or print electronic communications. Notwithstanding the above, you shall not have the right to opt-out of service or support notices relating to the Services, including without limitation, notices of service modifications, security, performance issues or technical difficulties.  

13.8 Consent for Recording. Merchant acknowledges, agrees and consents to PayTrace monitoring and recording any customer service telephone conversations or internet chat communications with Merchant at any time, without PayTrace providing any additional notice to the Merchant prior to such recordings.

13.9 Consent to be Contacted. MERCHANT HEREBY AUTHORIZES AGENT TO SEND, AND MERCHANT CONSENTS TO THE RECEIPT OF,”SMS” (I.E., “TEXT”) ALERTS, FOR THE FOLLOWING DESIGNATED PURPOSES: (I) TO NOTIFY MERCHANT WHEN ITS MERCHANT APPLICATION IS APPROVED OR ACTIVATED, OR WHEN ITS EQUIPMENT IS SHIPPED OR REPAIRED; (II) TO NOTIFY MERCHANT THAT PAYTRACE NEEDS ADDITIONAL INFORMATION TO COMPLETE THE MERCHANT APPLICATION, TO SECURE APPROVAL, OR TO AUTHENTICATE THE MERCHANT APPLICATION OR MERCHANT; (III) TO NOTIFY MERCHANT OF NEW PRODUCTS OR FEATURES OFFERED BY PAYTRACE; (IV) TO NOTIFY MERCHANT THAT PAYTRACE IS TRYING TO REACH IT; AND (V) TO NOTIFY MERCHANT OF CUSTOMER SERVICE ISSUES; (VI) TO NOTIFY MERCHANT OF SERVICE OUTAGES. MERCHANT UNDERSTANDS THAT IT WILL RECEIVE FUTURE SMS ALERTS FOR THE AFOREMENTIONED PURPOSES BY OR ON BEHALF OF PAYTRACE TO THE WIRELESS PHONE NUMBER DESIGNATED IN THE MERCHANT APPLICATION (AS WELL AS ANY WIRELESS PHONE NUMBER MERCHANT ASSOCIATES WITH THE ACCOUNT) AND, HAVING RECEIVED AND REVIEWED THESE DISCLOSURES, MERCHANT UNAMBIGUOUSLY AUTHORIZES PAYTRACE TO DELIVER OR CAUSE TO BE DELIVERED, AND AGREES TO RECEIVE, VOICE AND SMS ALERTS USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR AN ARTIFICIAL OR PRERECORDED VOICE. MERCHANT ACKNOWLEDGES THAT THE WIRELESS PHONE 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 PRODUCTS OR SERVICES FROM PAYTRACE OR ITS AFFILIATED COMPANIES IN ACCORDANCE WITH THIS MERCHANT AGREEMENT, AND THAT MERCHANT HAS THE RIGHT TO WITHDRAW THIS CONSENT AT ANY TIME BY PROVIDING PAYTRACE WITH WRITTEN NOTICE OF SUCH WITHDRAWAL IN ACCORDANCE WITH SECTION 13.7 ABOVE. THIS CONSENT IS BEING PROVIDED ELECTRONICALLY.

13.10 Headings. The section headings appearing in the Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect such section. 

13.11 Independent Contractors. Neither Party nor their employees, consultants, contractors, or agents are agents, employees, or joint ventures of the other Party, nor do they have any authority to bind the other Party by contract or otherwise to any obligation. Each Party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise. 

13.12 Non-Disparagement; Publicity. During the term of the Agreement, Merchant will disparage PayTrace or PayTrace’s trademarks, web sites, Software or Services, or display any such items in a derogatory or negative manner on any web site or in any public forum or press release. Unless otherwise stated herein, Merchant shall not issue a press release or otherwise advertise, make a public statement or disclose to any third party information pertaining to the relationship arising under this Agreement, the existence or terms of the Agreement, the underlying Transaction data without PayTrace’s prior written approval. 

13.13 Costs. Except as expressly stated in the Agreement, each Party shall be solely responsible for its costs and expenses of performing its obligations hereunder.

13.14 Non-Waiver.  The failure of either Party to exercise any of its rights under this Agreement or to require the performance of any term or provision of this Agreement, or the waiver by either Party of such breach of this Agreement, shall not prevent a subsequent exercise or enforcement of such right or be deemed a waiver of any subsequent breach of the same or any other term or provision of this Agreement. Any waiver of the performance of any of the terms or conditions of this Agreement shall be effective only if in writing and signed by the Party against which such waiver is to be enforced.

13.15 Audit. PayTrace may, during the term of this Agreement and for a period of twelve (12) months thereafter, conduct an audit of Merchant’s books, records, and operations to verify Merchant’s proper use of the Services and Sfotware, and compliance with this Agreement. PayTrace will use reasonable efforts to provide at least five (5) business days’ advance notice of any such audit, and PayTrace will use reasonable efforts to ensure that the audit does not unreasonably disrupt Merchant’s business. Merchant will provide all reasonable cooperation with any such audit and will provide all requested information and records and reasonable access to Merchant’s premises, computer systems, databases, equipment, and personnel. Each Party will bear its own costs in connection with any such audit, except that if an audit reveals a breach of this Agreement by Merchant, Merchant will reimburse PayTrace for its costs incurred in connection with such audit. 

13.16 Survival.  Sections 1.1, 2, 3.2-3.4, 5-13, as well as any other terms which by their nature should survive, will survive the termination or expiration of this Agreement.