TERMS OF USE
 
The use of this online service (the “Services”) offered by Bank (as such term is defined in your Merchant Transaction Processing Agreement) and TSYS Merchant Solutions, LLC (collectively “TMS”) through this Web Site (the “Web Site”) are provided by TMS to you (“you” or “User”) subject to the terms of these Terms of Use, any operating rules or policies of the card associations and any rules or policies that may be published from time to time by TMS (collectively the “Terms and Conditions”). Before you subscribe to and begin participating in or using the Services, TMS requires that you read and accept the following Terms and Conditions BY CLICKING ON THE BUTTON MARKED “I AGREE” AT THE END OF THIS AGREEMENT AND USING THE WEB SITE OR THE SERVICES YOU ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS OF USE AS APPLIED TO YOUR USE OF THE WEB SITE AND THE SERVICES.  If you do not agree to these Terms and Conditions, you may not access or otherwise use the Services.
 
Terms and Conditions
 
General. The Web Site displays information related to the merchant account with Bank and TMS and allows electronic communication between you and TMS. The Services provided by TMS through the Web Site and the use of the Web Site are governed by the Terms and Conditions, all applicable federal, state, and local laws and regulations, and the rules and regulations of the card associations. By accessing or using the Services or the Web Site or by registering as a user of the Web Site, you agree that (1) you have read and familiarized yourself with the Terms and Conditions, (2) you understand the Terms and Conditions, and (3) you are bound by the Terms and Conditions in your use of the Services and the Web Site. If you do not agree to the Terms and Conditions, you may not access or use the Services or the Web Site. The Terms and Conditions, together with the agreement(s) with bank and TMS relating to merchant transaction processing (which may include, but is not limited to, the Merchant Transaction Processing Agreement) and any additional terms and conditions specific to a particular Service or Web Site venue (incorporated herein by reference), constitute the entire agreement (the “Agreement”) between TMS and User regarding its subject matter and supersede and replace any and all prior or contemporaneous agreements between the parties regarding such subject matter
 
Registration and Eligibility. The Services and the Web Site are only available to persons with the legal capacity to enter into this Agreement. TMS may, at its sole and absolute discretion, refuse to accept a person’s (or entity’s) registration, and may, at any time after accepting registration, refuse to permit a person’s (or entity’s) continuing use of the Services and the Web Site for any reason.
 
Changes to Services, Web Site and Terms and Conditions. You acknowledge and agree that TMS may change, modify, amend, suspend or discontinue any aspect of the Services or the Web Site, at any time, without notice and without liability to you or to any third party. TMS reserves the right to impose limits on certain features of the Services or the Web Site, at any time, without notice and without liability to you or to any third party.
 
Further, you acknowledge and agree that TMS may amend any or all of the Agreement (including, but not limited to, the terms set forth in the Merchant Services Agreement and fees for the Services) at any time, at TMS’ sole discretion, by posting such changes to the Web Site. Any amendment of the Terms and Conditions will be reflected on the Web Site at merchantsummary.com. You are encouraged to periodically review the Terms and Conditions posted on the Web Site. Use of the Services and the Web Site constitutes acceptance of the Terms and Conditions, including any amendments thereto. The Web Site may, at logon or other times, require the individual User to indicate his or her agreement with the provisions hereof or other terms as a condition to obtaining access to the Services and the Web Site or data, and such indication shall constitute a legally binding commitment of User
 
Password and Security. TMS will supply You with a User name and a temporary one-time User password. Upon your first access to the Web Site, you will be required to establish a new User password to be utilized to access the Services and the Web Site on subsequent occasions. You are solely responsible for maintaining the confidentiality of your User name and User password. You may not share your User name or your User password with any third parties or use your User name or User password for any unauthorized purposes. You are obligated to complete those transactions that occur using your User name and User password, whether such transactions are authorized or unauthorized. You agree that you shall immediately notify TMS in writing or by electronic mail of any unauthorized use of your User name or User password.
 
If User is a business entity, in certain cases, TMS may permit one or more individuals to be responsible for assigning User names and initial passwords to all persons who are authorized to access the Services and the Web Site on User’s behalf. It is User’s responsibility to remember, and protect the security of, the User names and passwords assigned to User. The person(s) designated by User will be able to designate different levels of access for User’s employees and agents. TMS will provide User with instructions for the available options. User will be responsible for any decision made by User’s designated person(s) establishing access permissions. All actions by User’s designated person(s) with respect to assigning Under names and passwords to users and accessing the Services and the Web Site shall be deemed to be authorized by User. User is responsible for all access and usage of the Services and Web Site by its individual users.
 
User Information. You will provide information to TMS during the registration process and to TMS during the course of the use of the Services and the Web Site (the “User Information”). You represent and warrant: (1) that all User Information is accurate and complete at the time of registration, and (2) that User Information will be continuously updated such that the User Information shall at all times be current, accurate, and complete. You grant to TMS a non-exclusive, worldwide, perpetual, royalty-free and irrevocable license to use the User Information, including any associated intellectual property or proprietary rights you may have in the User Information, for any purposes in connection with the Services or the Web Site.
 
Privacy Policy. The terms of the TMS Privacy Policy are incorporated by reference into these Terms and Conditions. You are encouraged to periodically review the TMS Privacy Policy posted on the Web Site at transactionsummary.com.
 
Grant of License. Subject to the terms and conditions of this Agreement and any other rules or procedures established by TMS from time to time, TMS hereby grants to you a revocable, nonexclusive, nontransferable license, without the right to sublicense, to use this Web Site solely for your internal business purpose in connection with the merchant processing services which are provided to you by TMS. Except as expressly set forth herein, you may not modify, copy, distribute, transmit, reproduce, publish, license, transfer, sell, mirror, frame, or otherwise use any information or content obtained from or through the Services or the Web Site. You represent and warrant to TMS that you will not use this Site for any purpose that is unlawful or prohibited by this Agreement. You are responsible for providing, at your expense, all communications lines, hardware, software, services and other materials and technology necessary for you to access the Web Site. TMS shall have no responsibility for any failure of such items or any failure or limitation of the Internet or other computer hardware or software.
 
User Content. TMS is not responsible for the quality, accuracy, reliability, legality or completeness of any User-provided content, including any User Information. User is solely responsible for verifying the quality, accuracy, reliability, legality and competitiveness of all User-provided content, including any User Information. User acknowledges and agrees that TMS has the right, but not the obligation, to monitor User-provided content, including User Information, and to edit, correct or remove any such content that TMS, in its sole discretion, deems objectionable or in violation of this Agreement.
 
User Conduct. You are solely responsible for all conduct and transmissions that take place under your User name and password. You represent, warrant and covenant that your use of the Services and the Web Site shall not:

  1. violate any applicable local, state, national or international law, statute, ordinance, rule or regulation;
  2. interfere with or disrupt computer networks connected to the Services or the Web Site;
  3. impersonate any other person or entity, or make any misrepresentation as to User’s employment by or affiliation with any other person or entity;
  4. forge headers or in any manner manipulate identifiers in order to disguise the origin of any User Information;
  5. upload, post, transmit, publish, or distribute any material or information for which you do not have all necessary rights and licenses;
  6. upload, post, transmit, publish, or distribute any material which infringes, violates, breaches or otherwise contravenes the rights of any third party, including any copyright, trademark, patent, rights of privacy or publicity or any other proprietary right;
  7. interfere with or disrupt the use of the Services or the Web Site by any other User, nor “stalk”, threaten, or in any manner harass another User;
  8. upload, post, transmit, publish, or distribute any material or information which contains a computer virus, or other code, files or programs intending in any manner to disrupt or interfere with the functioning of the Services, the Web Site, or that of other computer systems;
  9. use or attempt to use the Services or the Web Site in such a manner as to gain unauthorized entry or access to the computer systems of others;
  10. upload, post, transmit, publish or distribute any material or information which constitutes or encourages conduct that would constitute a criminal offense, give rise to other liability, or otherwise violate applicable law;
  11. upload, post, transmit, publish, or distribute any material or information that is unlawful, or which may potentially be perceived as being harmful, threatening, abusive, harassing, defamatory, libelous, vulgar, obscene, or racially, ethnically, or otherwise objectionable; or
  12. reproduce, copy, modify, sell, store, distribute or otherwise exploit for any commercial purposes the Services or the Web Site, or any component thereof (including, but not limited to any materials or information accessible through the Web Site).
System Integrity. TMS makes reasonable commercial efforts to make its Services and Web Site available; however, TMS is not responsible for any service interruptions. TMS will not be liable for any loss resulting from a cause over which it does not have direct control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, or governmental restrictions.
 
Termination. TMS expressly reserves the right to terminate the use of, or to refuse to permit the use of, the Services and the Web Site by any person or entity, at the sole discretion of TMS, for any reason and without notice.
 
No Relationship. User and TMS are independent contractors. Neither party is an agent, representative, broker, employee, partner or joint venture of the other party. This Agreement shall not be interpreted or construed to create an association, joint venture, agency, franchise or partnership between the parties or to impose any partnership obligation or liability upon either party.
 
Links to Third Parties. The Services and the Web Site may provide links to the web sites or services of others (“Third-Party Sites”). Links to such Third-Party Sites do not constitute an endorsement by TMS of such Third-Party Sites, or the products, content, materials or information presented or made available by such Sites. User acknowledges and agrees that TMS is not responsible for any damages or losses caused or alleged to have been caused by the use of any Third-Party Sites, or from the products, content, material, services or information presented by or made available through the Third-Party Sites.
 
Downloading Information/Material. You hereby release TMS, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns from any and all actual or alleged damages which may result from you downloading or using any information or materials from the Web Site.
 
Choice of Law; Consent to Jurisdiction. This Agreement, and all questions with respect to the interpretation of this Agreement, shall be governed by and construed in accordance with the internal laws of the State of Nebraska, without regard for conflict of laws provisions. You expressly consent to personal and exclusive jurisdiction in the courts of the State of Nebraska located in Douglas County.
 
Indemnification. You will defend, indemnify and hold harmless TMS, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns (collectively, “Indemnified Parties”), from and against any claim, loss, damage, liabilities, judgments, fees and expenses related thereto (including, without limitation, reasonable attorney’s fees) incurred by any of the Indemnified Parties arising from or related to: (1) your use of the Services or the Web Site, (2) any breach or violation of the Agreement by User and (3) any breach of any of your representations, warranties and covenants.
 
Disclaimer of Warranties. THE SERVICES AND THE WEB SITE, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS, SERVICES AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICES OR THE WEB SITE, ARE PROVIDED ON AN “AS IS”, “WHERE IS”, “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TSYS DOES NOT WARRANT THAT THE SERVICES OR THE FUNCTIONS, FEATURES OR CONTENT CONTAINED MADE AVAILABLE ON OR ACCESSED THROUGH SERVICES OR THE WEB SITE, INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY SOFTWARE, PRODUCTS OR OTHER MATERIALS USED IN CONNECTION WITH THE SERVICES OR THE WEB SITE, WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. TSYS MAKES NO WARRANTY THAT THE WEB SITE OR THE SERVICES WILL MEET USERS’ REQUIREMENTS. IF USER IS DISSATISFIED WITH THE SERVICES OR THE WEB SITE, USER’S SOLE REMEDY IS TO DISCONTINUE USING THE SERVICES AND THE WEB SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM TSYS OR THROUGH THE SERVICES OR THE WEB SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THE AGREEMENT.
 
Limitation of Liability. IN NO EVENT SHALL TSYS BE LIABLE FOR ANY DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, THE WEB SITE OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, INCLUDING WITHOUT LIMITATION, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, OR LOST GOODWILL. IN NO EVENT SHALL THE TOTAL LIABILITY OF TSYS TO A USER FOR ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THIS AGREEMENT OR THE USE OF THE SERVICES OR THE WEB SITE EXCEED, IN THE AGGREGATE, ONE HUNDRED DOLLARS ($100.00).
 
THE FOREGOING LIMITATION SHALL APPLY AND SURVIVE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
 
Notices. Notices shall be given:
To TMS: To be valid, notices must be sent by email to service@tsys.com and by certified mail, return receipt requested, to TSYS Merchant Solutions, LLC, PO Box 3190, Omaha NE 68103-0190 or to such other address as may be designated from time to time.
 
To User: Notices to User will be sent by email at the email address reflected in User’s registration information.
 
Notices to User shall be deemed to have been received 24 hours after the email is sent. Notices to TMS shall be deemed to have been given three days after the date of mailing by certified mail, return receipt requested.
 
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to effect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect.
 
Waiver. The failure of TMS to exercise or enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision.
 
Intellectual Property Rights. The trademarks, logos and service marks displayed on the Web Site are the property of TMS and other third parties. No display or use of such marks may be made without the express written permission of TMS. Except as expressly set forth in this Agreement, TMS grants no rights whatsoever to you or any user of the Web Site in the patent(s), copyright(s), trademarks, trade names, service marks, trade secrets or other intellectual property rights of TMS, whether created prior to, during or after the performance of this Agreement.
 
Limitation on Actions.  You agree that any cause of action arising out of or related to the Services or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
 
Survival.  All provisions in this Agreement regarding representations and warranties, indemnification, disclaimers and limitations on liability shall survive any termination of this Agreement.



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