2. PREREQUISITES. You are solely responsible for your own access to the World Wide Web and for any fees relating directly or indirectly thereto. Customer shall be responsible for the hardware and software necessary and adequate to access and interact with the Customer Services. ACTIVE Network shall not be responsible for any technical delays, problems, defects, failures or shortcomings relating to your use of the Customer Services (as defined herein below).
3. AUTHORIZATION. You represent and warrant that: (a) you are of legal age to form a binding contract, (b) you are duly authorized to execute this Service Agreement for and on behalf of Customer, (c) Customer has the requisite authority and power to enter into and perform this Service Agreement, and (d) this Service Agreement is a legally binding obligation and agreement of Customer.
ACTIVE Network retains all right, title and interest in and to the Customer Services and any related technology utilized under or in connection with this Service Agreement, including but not limited to all intellectual property rights associated therewith. This Service Agreement does not give you a right to the use of or access to the Customer Services. Without limiting the foregoing, Subscription gives you no property right in the Customer Services or in or to any features or services accessible through this Site. You shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that appear during use of the Customer Services. You shall not reverse engineer, decompile, or disassemble the Customer Services, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
Access to some of the Customer Services may be offered free of monetary charge. Because there may be no monetary charge for access to this Site and use of its features, your acceptance of this Service Agreement constitutes consideration for your use and access.
Customer shall be responsible for complying with, and shall comply with, all laws, rules and regulations applicable to its business, purposes, or activities, and its use of the Customer Services. ACTIVE Network shall have no obligation to notify or advise Customer of the existence of such laws or changes in such laws. ACTIVE Network shall be responsible for its performance of the Customer Services, and shall not be responsible for Customers' responsibilities or third parties' responsibilities except as expressly set forth in this Agreement. Customer hereby authorizes ACTIVE Network to take any and all such action necessary, in ACTIVE Network's sole and absolute discretion, to comply therewith, but this Agreement shall not obligate ACTIVE Network to take such action. This Agreement shall in every respect be subject to the requirements of all applicable laws, rules and regulations, which are incorporated by reference herein to the same extent as if set forth herein verbatim. Customer shall cooperate with ACTIVE Network as necessary to assist or facilitate performance by ACTIVE Network of the Customer Services under this Agreement.
5. ACCURACY OF SUBSCRIPTION INFORMATION. You represent and warrant on the first date of your Subscription and use of the Customer Services by you or a User (hereinafter referred to as “Subscription Date”), and at all times thereafter, that the information you supply to ACTIVE Network, and all information supplied by or relating to Users or Visitors, is truthful, accurate, current and complete in every respect to the best of your knowledge and belief. Without limiting any other provision of this Service Agreement, if ACTIVE Network believes that you have or may have failed, directly or indirectly, to comply with this Paragraph 5, in whole or in part, ACTIVE Network shall have the absolute right to immediately suspend or terminate your service, account, or access to this Site and refuse any future service, account or access. You hereby authorize ACTIVE Network to investigate and confirm the information submitted by you herein.
6. FEES AND OBLIGATION TO PAY.
6.1 FEE SCHEDULE.
Customer agrees to pay ACTIVE Network in accordance with the fee schedule shown on a web page accessible by certain Users of Customer Services (hereinafter referred to as “Fee Schedule”). If Customer elects to add or change the Subscription to any or all of the Customer Services, this Fee Schedule will be updated to show the revised fees. ACTIVE Network reserves the right to modify the Fee Schedule for Customer Services, and ACTIVE Network shall notify Customer via e-mail or otherwise of any changes to the Fee Schedule at least sixty (60) days before the effective date of such changes.
ACTIVE Network shall bill Customer periodically (e.g., on the first day of each month) for any fees owed to ACTIVE Network. ACTIVE Network shall send a statement showing the fees to Customer via e-mail and post the statement on a web page accessible by certain Users of Customer Services.
You authorize ACTIVE Network to charge you for all fees (if any) using your designated payment method, and you agree to pay by the due date all fees that ACTIVE Network charges you for the Customer Services. This authorization will remain in effect until you provide written notice that you have terminated this authorization or wish to change your payment method.
Any amounts due to ACTIVE Network under this Service Agreement and not paid when due will be subject to a finance charge equal to one and one-half percent (1.5%) monthly (or the highest rate allowable by law, whichever is less), determined and compounded daily from the date due until the date paid. If ACTIVE Network receives a notice of non-sufficient funds from your bank, you shall pay to ACTIVE Network a fee for each incident in the amount of $25.00 or the maximum rate allowable by law. If you do not pay amounts due on or before 30 days from the billing date, you will be subject to a late payment fee in the amount of $25.00 or the maximum rate allowable by law. If you have not paid all amounts by the due date, ACTIVE Network may discontinue its performance of the Customer Services for you and/or immediately terminate this Service Agreement. You agree to pay all costs and expenses of whatever nature, including without limitation attorneys’ fees, incurred by or on behalf of ACTIVE Network in connection with the collection of any unpaid charges or fees. You also agree to pay all foreign, federal, state and local taxes applicable to your use of the Customer Services.
You may have purchased the Customer Services through a third party that has been authorized by ACTIVE Network to promote the Customer Services (hereinafter “Affiliate”). In addition to any agreement with Affiliate, the terms and conditions of this Service Agreement govern your use and ACTIVE Network's provision of the Customer Services to you. In the event of any conflict, the terms, provisions and conditions of this Service Agreement shall control. If you purchased the Customer Services from an Affiliate, the Affiliate may bill you directly for fees, in accordance with the terms and conditions of any agreement between you and Affiliate. If your relationship with such Affiliate terminates and you continue using the Customer Services, you agree that ACTIVE Network will begin to bill you for your use of Customer Services and that you will pay amounts due directly to ACTIVE Network. If ACTIVE Network is to be paid for Customer’s Subscription to and use of the Customer Services by an Affiliate, and if ACTIVE Network receives notice from such Affiliate that it has terminated or suspended its relationship with Customer, ACTIVE Network may suspend and/or terminate Customer’s right to access and use the Customer Services and/or this Agreement without notice and without liability.
7. ADDITIONAL TERMS. There are or may be additional terms, conditions and provisions for use of particular Customer Services at this time or in the future (hereinafter referred to as "Supplemental Terms"), including without limitation rules, codes or policies of conduct, participation or operation. Supplemental Terms shall not diminish the rights of ACTIVE Network under this Service Agreement, and shall be incorporated by reference into this Service Agreement therein to the same extent as if set out herein verbatim.
8. ACCESS, PASSWORDS, SECURITY AND CONFIDENTIALITY. You are responsible for the use of the Site by all Visitors and any information or data input into the Site ("Electronic Communications") using your access number(s), password(s) or account number(s). ACTIVE Network will act as though any Electronic Communications it receives under your access number(s), password(s) or account number(s) will have been sent by you. The security of your data may be maintained through the use of data encryption, data security protocols, passwords and other methods which ACTIVE Network may employ, or which ACTIVE Network may suggest or require that you employ. You agree that ACTIVE Network has no responsibility or liability for the deletion or failure to store any Data transmitted by you or anyone else to the Service.
You agree to use software produced by third parties, including, but not limited to, "browser" software that supports a data security protocol compatible with the protocol used by ACTIVE Network. Until notified otherwise by ACTIVE Network, you agree to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by ACTIVE Network and follow ACTIVE Network's log-on procedures for Customer Services that support such protocols. You acknowledge that ACTIVE Network is not responsible for notifying you of any upgrades, fixes, or enhancements to any such software or for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet. You acknowledge that it is possible that Electronic Communications may be accessed by unauthorized third parties when communicated between you and ACTIVE Network using the Internet, other network communications facilities, telephone or any other electronic means.
You acknowledge that certain Customer Services enable you to request information from Visitors. You agree that you will not use Customer Services to request financial account information, including but not limited to credit card or bank account information, from Visitors except as expressly permitted in this Service Agreement.
Customer shall keep confidential (a) all programs, processes, and systems of ACTIVE Network, (b) all confidential data provided to Customer by a Visitor, and (c) security codes, usernames, passwords, or other access devices and procedures which may be furnished or adopted in connection with this Agreement (all collectively referred to hereinafter as the "Confidential Information"). Customer shall be responsible for safeguarding and securing the Confidential Information and shall take all measures necessary to safeguard the confidentiality of all Confidential Information from loss, destruction, or theft and shall notify ACTIVE Network immediately, and promptly confirm such notice in writing, upon discovery that the security thereof has been or may have been compromised.
9. THE WAY WE HANDLE ELECTRONIC COMMUNICATION BETWEEN YOU AND ACTIVE Network. The Customer Services allow you to send Electronic Communications directly to ACTIVE Network and interact within applicable areas of the Service. Electronic Communications include your business and financial data which you send through the Customer Services (the "Data"). You acknowledge and agree to the following with respect to use of Electronic Communications through the Customer Services:
ACTIVE Network shall be entitled, but is not obligated, to review or retain your Electronic Communications for your compliance with the Service Agreement and the security of the Customer Services. ACTIVE Network may also review or retain Electronic Communications (other than Data) for other reasons which ACTIVE Network believes in good faith will improve the quality of the Customer Services.
ACTIVE Network may disclose Electronic Communications if required to by law or in the good faith belief that such disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the Service Agreement; (iii) respond to claims that any Electronic Communications violate the rights of third parties; or (iv) protect the rights, property, or personal safety of ACTIVE Network, its users or others;
You agree to provide ACTIVE Network with your e-mail address, and the e-mail addresses of your Users, and promptly provide ACTIVE Network with any changes to your e-mail address and accept Electronic Communications from ACTIVE Network at the e-mail address you specify. You agree that ACTIVE Network may provide notices, statements, invoices, and other communications to you or Users solely through e-mail, posting on the Site or in the Customer Services, or other electronic transmission.
You agree that ACTIVE Network shall not be responsible for monitoring, censoring, editing, reviewing or controlling any Content by, from or to any Customer or non-Customer, User, or Visitor. ACTIVE Network shall have no responsibility to notify or warn you of any risks associated with your use of the Site or of the Internet, and you assume all risks for use of the Site or the Internet and any and all consequences. ACTIVE Network reserves the right in its sole and absolute discretion, but shall have no obligation, and you hereby expressly authorize, appoint and grant to ACTIVE Network absolute license and freedom, to monitor, review, edit, remove, refuse, or prohibit any Content on this Site without notice for any reason whatsoever. ACTIVE Network may but shall not be obligated to waive some or all of its rights under this Service Agreement in whole or in part, including without limitation its rights set forth herein, but waiver, or non-enforcement or inaction, for any reason whatsoever in ACTIVE Network's sole discretion, of one or more of its rights at any time shall not in any way limit its right to enforce strict compliance herewith.
You agree that any Content other than Confidential Information that you or any User posts or transmits on the Site shall be treated and deemed by ACTIVE Network as non-proprietary and non-confidential, and you assume all responsibility and risk for any and all Content you or any User posts or transmits on the Site. ACTIVE Network does not accept unsolicited content for use or publication in its programming or in other digital, electronic or print media, and ACTIVE Network shall not be responsible for the similarity of any of its content with any content submitted to it including without limitation through or on the Site.
By posting or transmitting any Content other than Confidential Information on the Site by you or any User, you hereby represent and warrant that you are the owner and originator of such Content, or have been granted any and all rights and interests necessary to grant, and you do hereby grant, to ACTIVE Network, its successors and assigns, and its affiliates a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, copy, modify, display, distribute, transmit, publicly display, publicly perform, publish, adapt, create derivative works of or from, transfer, reproduce or sell all such Content in any form, media, software or technology of any kind now existing or hereafter developed for any purpose whatsoever including without limitation a commercial purpose without compensation to you. This license exists only for as long as you elect to include such Content on the Customer Services and will terminate at the time you or ACTIVE Network removes such Content from the Customer Services. You further represent and warrant that use of such Content by ACTIVE Network, its successors and assigns, and its affiliates, will not infringe or otherwise violate the rights, including without limitation the intellectual property rights, of any party or any third party. You also agree to indemnify, defend, and hold ACTIVE Network, its successors and assigns, and its affiliates harmless from and against any liability, loss, damage, claims, costs, expenses, including without limitation attorneys and accounting fees and expenses arising therefrom. Without limiting any of the foregoing, be aware that Content of a personal nature posted or transmitted on the Site may be collected and used by others and may result in unsolicited and unwanted messages or responses from other parties. You have no reasonable expectation or freedom from harm or harassment by using or accessing this Site or the Customer Services. You assume all risk and responsibility for all posts or transmissions by you, Users, or others using your password or the password of any User.
11. LIMITATION OF LIABILITY. ACTIVE Network shall not be liable for, and ACTIVE Network hereby expressly disclaims any and all liability for, any damages, losses, expenses, demands, or claims in connection with this Service Agreement or the Customer Services hereunder, except such as are proximately and directly caused solely by ACTIVE Network's own willful and wanton misconduct. In no event shall ACTIVE Network be liable for, and ACTIVE Network hereby expressly disclaims any and all liability for: (a) indirect, incidental, special, punitive, or consequential damages, even if ACTIVE Network has been advised that such damages will or may be incurred or (b) lost profits, economic injury, damage to business, or damage to reputation. ACTIVE Network’s total aggregate liability for any matter arising from or related to this Service Agreement is limited to the amount of fees actually paid by Customer as consideration for the products, software and services giving rise to such claim during the twelve (12) month period preceding the date on which the cause of action arose.
13. INDEMNIFICATION. Customer shall indemnify, defend and hold ACTIVE Network, its affiliates, directors, officers, employees, agents and contractors harmless from and against any and all liability, loss, judgments, damages, demands, actions, claims, costs and expenses, including but not limited to attorneys’ fees and litigation or other expenses, arising out of or relating directly or indirectly to (a) any acts or omissions of Customer, its employees, agents and contractors, or any third parties, including but not limited to breach by Customer of any provision, term, representation or warranty, in whole or in part, contained in this Service Agreement, or (b) any claim by any person or entity not a party to this Service Agreement asserted against or naming ACTIVE Network, including but not limited to litigation.
14. GENERAL PROVISIONS.
14.1. THIS AGREEMENT. This Service Agreement and any Supplemental Terms, as modified or amended from time to time, all of which are incorporated by reference herein to the same extent as if set forth herein verbatim, sets forth and constitutes the entire agreement of the parties with respect to the subject matter hereof, is binding on the parties hereto, and it supersedes and discharges all prior or contemporaneous oral or written proposals, communications, negotiations, offers, or agreements concerning the subject matter hereof. There are no oral conditions precedent to the effectiveness of this Service Agreement.
14.2. WAIVER. Neither the failure of, nor any delay by, any party to this Service Agreement to enforce any right hereunder or to demand compliance with its terms is a waiver of any right hereunder. No action taken pursuant to this Service Agreement on one or more occasions is a waiver of any right hereunder or constitutes a course of dealing that modifies this Service Agreement. No waiver of any right or remedy under this Service Agreement shall be binding on any party unless it is in writing and is signed by the party to be charged. No waiver of any right or remedy under any term of this Service Agreement shall in any event be deemed to apply to any subsequent breach or default under the same of any other term contained herein.
14.3. MODIFICATION AND TERMINATION. ACTIVE Network shall have the right in its sole and absolute discretion to unilaterally amend or modify this Service Agreement and any Supplemental Terms by posting the amendments or modifications or the amended or modified agreement online without notice. You are responsible for regularly reviewing the terms, conditions, and notices under which ACTIVE Network provides the Customer Services. If ACTIVE Network makes a material change to this Service Agreement, ACTIVE Network will give you notice in accordance with Paragraph 9. Your continued use of the Customer Services after the effective date of such changes constitutes your acceptance of and agreement to such changes.
Unless otherwise provided in this Service Agreement or the Supplemental Terms, this Service Agreement shall commence on the Subscription Date and continue until the last day of the calendar month that includes the Subscription Date and shall automatically renew for successive one (1) month terms.
ACTIVE Network may terminate or suspend this Service Agreement, your Subscription or your use or access to this Site, the Customer Services, or permission to use or access the Site or any features, services or information, including without limitation the Customer Services, in whole or in part, at any time without notice without liability to you or any third party. Customer may terminate Subscription by providing written notice to ACTIVE Network at least thirty (30) days prior to the expiration of the then-current term, in which event Customer acknowledges that amounts already paid to ACTIVE Network shall not be refunded to Customer unless expressly provided in this Service Agreement or the Supplemental Terms.
Upon termination of this Service Agreement for any reason, all rights and obligations of the parties under this Service Agreement shall be extinguished, except that: (a) all accrued payment obligations of Customer hereunder shall survive such termination; and (b) the rights and obligations of the parties under Paragraphs 3, 4, 5, 6, 7, 8, 11, 12, 13, and 14 and any other provisions of this Agreement that should reasonably survive termination shall survive such termination.
14.4. SEVERABILITY. The terms of this Service Agreement are severable, and the invalidity of all or any part of any term of this Agreement shall not render invalid the remainder of this Service Agreement or the remainder of the term. If any term, provision or condition contained in this Agreement shall be for any reason whatsoever held to be invalid, illegal or unenforceable, such provisions shall not invalidate or render unenforceable any other provision of this Service Agreement with respect to which such provision is not otherwise invalid, illegal or unenforceable. To the extent permitted by law, the parties hereto waive any provision of law that prohibits or renders unenforceable any provision hereof, and to the extent that such waiver is not permitted by applicable law, the parties intend that such provision be interpreted as modified to the minimum extent necessary to render such provision enforceable.
14.5. ASSIGNMENT. Neither this Service Agreement nor any of the rights, interests or obligations hereunder shall be assigned in whole or in part by Customer (whether by operation of Law or otherwise) without the prior written consent of ACTIVE Network. This Service Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.
14.6. THIRD PARTIES. Nothing herein expressed or implied is intended or shall be construed to give any person or entity other than the parties hereto any rights or remedies under this Service Agreement. The parties hereto are independent contractors. This Service Agreement is not a partnership or joint venture, and neither party shall be deemed the agent of the other, and neither shall have any authority to act for or on behalf of the other except as expressly set forth in this Service Agreement.
14.7. JOINT PREPARATION. This Agreement shall be deemed to have been prepared jointly by the parties hereto. Any ambiguity herein shall not be interpreted or construed against any party hereto, but shall be interpreted and construed as if each of the parties hereto had prepared this Service Agreement. No party to this Service Agreement shall be considered the draftsman. The parties acknowledge and agree that this Service Agreement has been carefully reviewed, negotiated and accepted by all parties and their attorneys to the extent they deem necessary and shall be construed and interpreted according to the ordinary meaning of the words used so as fairly to accomplish the purposes and intentions of all parties hereto.
14.8. CAPTIONS. The captions and paragraph numbers and letters appearing in this Service Agreement are inserted only as a matter of convenience. They do not define, limit or describe the scope or intent of the provisions of this Service Agreement.
14.9. GOVERNING LAW. This Service Agreement and the validity, terms, performance and enforcement of this Agreement shall be governed by laws of the State of California, excluding its conflict of law rules. Any legal action, including an original complaint or third party claim, by or in the right of any party to this Agreement or any action arising under or in any way related to this Service Agreement, including but not limited to a claim for payment under the Service Agreement, and also including without limitation any non-contract claim (collectively referred to herein as "Claims"), shall be brought and maintained exclusively in a state or federal court of competent subject matter jurisdiction in San Diego County, California, and the parties hereby submit themselves to the personal jurisdiction and venue of those courts for the purpose of any such action and hereby waive any defense related to personal jurisdiction, process or venue.
14.10. ATTORNEYS FEES. Customer shall pay ACTIVE Network's reasonable costs and expenses, including but not limited to attorney fees and expenses, accountants fees and expenses, and court costs, incurred in or arising out of or relating to enforcement of this Service Agreement in whole or in part or any action or proceeding taken, brought, entered or filed to seek redress, relief or damages for breach of this Agreement in whole or in part.
14.11. FORCE MAJEURE. ACTIVE Network shall not be liable for any delay or nonperformance of this Service Agreement, or any term or provision hereof in whole or in part, caused by forces or factors beyond its reasonable control, including but not limited to wars, insurrections, rebellions, revolutions, civil wars, usurped power, action taken by government authority in hindering, combating or defending against such occurrence, or confiscation by order of any government or public authority, strikes, lockouts, labor disputes or disturbances, riots, authority of law, acts of God, severe weather, computer hardware or software problems of any kind or any other cause.
These Supplemental Terms (as defined in the Service Agreement) are applicable to Customers who have a Subscription to certain of the Customer Services.
This TERM AGREEMENT (hereinafter the “Term Agreement”) is entered into as of the date of execution of a written Term Commitment (hereinafter “Term Commitment”) between Customer and ACTIVE Network.
1. Customer desires to access certain on-line services of ACTIVE Network accessible via the Internet (the services as defined in the Service Agreement and referred to in the Service Agreement and hereinafter as the “Customer Services”).
2. Customer desires to receive a specified price for the Customer Services for a specified time period and shall submit or has submitted to ACTIVE Network or an Affiliate a Term Commitment, which is incorporated by reference herein to the same extent as if set forth herein verbatim, and the parties desire to more particularly express their agreement in a written agreement.
Now, therefore, for and in consideration of the above Preliminary Statements, and the mutual terms, covenants and conditions set forth in this Term Agreement, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, do hereby agree as follows:
The initial term of the Subscription shall be the time period as specified on the Term Commitment (hereinafter the “Initial Term”). Upon expiration of the Initial Term, the Subscription shall automatically renew at the then-current pricing as specified on the ACTIVE Network Website for successive renewal terms, with each renewal term having a duration of one year.
The Subscription may be terminated in accordance with the provisions set forth in Paragraph 14.3 of the Service Agreement.
C. THIS AGREEMENT.
This Term Agreement, together with the Term Commitment and the Service Agreement, all of which are incorporated by reference herein to the same extent as if set forth herein verbatim, sets forth and constitutes the entire agreement of the parties with respect to the subject matter hereof, is binding on the parties hereto, and it supersedes and discharges all prior or contemporaneous oral or written proposals, communications, negotiations, offers, or agreements concerning the subject matter hereof. There are no oral conditions precedent to the effectiveness of this Term Agreement. The terms of this Term Agreement are in addition to the terms and provisions of the Service Agreement by and between Customer and ACTIVE Network and any other agreement. In the event of a conflict between this Term Agreement and any other agreement by and between Customer and ACTIVE Network, including but not limited to the Service Agreement, the terms and provisions of this Term Agreement shall control with respect to the term of the Subscription.
PAYMENT SERVICES AGREEMENT
This PAYMENT SERVICES AGREEMENT (hereinafter the “Payment Services Agreement”) is entered into as of the Subscription Date by Customer and The Active Network, Inc., a Delaware corporation (hereinafter “ACTIVE Network”).
1. Customer and ACTIVE Network have entered into a Service Agreement (hereinafter the “Service Agreement”) pursuant to which Customer accesses certain on-line services of ACTIVE Network accessible via the Internet (the services as defined in the Service Agreement, and referred to in the Service Agreement and hereinafter as the “Customer Services”)
2. ACTIVE Network offers payment processing services to Customers of certain of the Customer Services (hereinafter the “Payment Services”).
3. Customer desires to use the Payment Services of ACTIVE Network, and the parties desire to more particularly express their agreement in a written agreement.
Now, therefore, for and in consideration of the above Preliminary Statements, and the mutual terms, covenants and conditions set forth in this Payment Services Agreement, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, do hereby agree as follows:
1. Payment Services. ACTIVE Network shall engage a third party or parties to perform payment processing (hereinafter “Processors”) in connection with Customer’s online transactions. Processors may engage one or more credit card, debit card or check processing networks or associations of banks or institutions (hereinafter “Associations”) to execute transactions. Customer expressly appoints, authorizes, approves, and consents to ACTIVE Network engaging Processors and their underlying Associations to process all electronic check, credit card, debit card, and other payment transactions including credits, debits, authorizations, and declines (hereinafter “Transactions”) of Customer or its customers or users who make any payment processing request to Customer or ACTIVE Network through the Site (hereinafter “Payors”). Customer shall comply with all requirements of Processors relating thereto, including but not limited to obtaining authorization from ACTIVE Network or its Processors for each Transaction. Customer hereby authorizes ACTIVE Network to make reports concerning Customer’s Transaction history to Associations or Processors. ACTIVE Network shall request financial account information from Payors on the Site on web pages that are hosted by ACTIVE Network, and Customer shall not request financial account information from Payors on any other pages hosted by ACTIVE Network.
2. Disputes with Payors. All disputes between Customer and any Payor, including but not limited to disputes relating to Transactions, shall be settled exclusively between Customer and Payor and shall not involve ACTIVE Network. Customer shall, in accordance with the Service Agreement, indemnify ACTIVE Network and Processors from any claim or suit brought by Payor relating to any Transaction with Customer.
3. Execution of Transactions. ACTIVE Network and its Processors shall have no obligation to accept and execute a Transaction request, despite any custom or practice to the contrary, and shall be entitled to make a decision on a case-by-case basis for each request. ACTIVE Network may reject or delay processing of any Transaction at any time without prior notice, despite any custom or practice to the contrary, for, among other reasons, ACTIVE Network’s belief that the Transaction may cause ACTIVE Network to violate any regulatory or internal risk control program or any applicable law or regulation. ACTIVE Network or its Processors will not be liable for any dishonor of any item as a result of actions taken hereunder. ACTIVE Network will not have any liability in connection with any unauthorized interception or use of data relating to Customer or the Payment Services or any inability by Customer to use or access the Site or Payment Services for any reason. Customer acknowledges that an electronic check Transaction initiated or executed hereunder may be debited or credited to an account based solely on the account number, without reference to any discrepancy in the account name, and Customer shall be solely responsible for any error resulting from the Transaction. Customer understands, acknowledges, and agrees that ACTIVE Network may be required from time to time, or may determine it appropriate in its own discretion, to comply with rules or requirements of Processors or Associations, and shall fully cooperate with ACTIVE Network as appropriate in ACTIVE Network’s sole and absolute discretion to permit or facilitate ACTIVE Network’s compliance.
Customer shall be responsible for and shall pay promptly when due any and all sales, use, excise, income, and any other taxes (including without limitation interest, penalties and additions to tax) imposed by any federal, state or local government authority upon ACTIVE Network, Processors, or Customer arising out of or relating directly or indirectly to Transactions and Payment Services provided under this Payment Services Agreement and all goods or services purchased by customers or users on the Site. ACTIVE Network shall have no responsibility of any kind whatsoever to collect or pay any of the taxes.
C. REPRESENTATIONS AND WARRANTIES.
Customer authorizes ACTIVE Network to collect, use, process, and transfer personal, non-public information about Payors, including credit card numbers and other financial account information, which shall be considered Confidential Information as defined in the Service Agreement, relating to Transactions.
Customer makes the following representations and warranties regarding Transactions: (1) ACTIVE Network’s processing of each Transaction request in accordance with its terms shall not, to the best of the knowledge, information and belief of Customer, give rise to any claim or defense which may be asserted by any Payor or other person against ACTIVE Network; (2) the Transaction represents a bona fide transaction between Customer and Payor, in Customer’s ordinary course of business.
Customer is solely responsible for the security of data residing on server(s) owned or operated by Customer, or a third party designated by Customer (e.g., a web hosting company, processor, or other service provider), including credit card numbers and other financial account information. Customer shall comply with all laws, rules and regulations governing the collection, retention or use by Customer of credit card and other financial information. Customer shall provide notice to Payors on Customer’s web site that discloses how and why personal and financial information is collected and used, including but not limited to uses governed by this Payment Services Agreement.
D. CUSTOMER INITIATED TRANSACTIONS. The Payment Services may allow Customer to initiate Transactions on behalf of Payors (all such Transactions hereinafter referred to as “Customer Initiated Transactions”). Customer shall submit Customer Initiated Transactions only if (a) the Customer Initiated Transactions have been encrypted by a means acceptable to ACTIVE Network and (b) Payor information is protected by Customer by firewalls or on servers inaccessible to third parties. Encryption is not a guarantee of payment to Customer and will not waive any provisions of this Payment Services Agreement. The Payment Services provide a history of all Customer’s Transactions, however if Customer chooses to store cardholder account numbers, expiration dates, and other personal cardholder data, Customer shall follow Association guidelines on securing such data.
For Customer Initiated Transactions, the following additional provisions shall apply: (1) Customer shall not submit duplicates of any Customer Initiated Transaction. (2) To the best of Customer’s knowledge, each Customer Initiated Transaction was placed by a person who is an authorized cardholder or check writer or authorized user of a credit card or check. (3) Customer shall comply with all applicable rules, regulations and procedures of any Processor or Association, as they may exist or be amended from time to time.
E. TERMINATION. This Payment Services Agreement may be terminated in accordance with the terms and provisions set forth in Paragraph 14.3 of the Service Agreement. Notwithstanding the foregoing, ACTIVE Network may suspend and/or terminate the Payment Services and/or this Payment Services Agreement without notice and without liability. This Payment Services Agreement may be terminated by ACTIVE Network immediately without prior notice by delivering written notice of termination to Customer upon the occurrence of any of the following: (1) failure of Customer to comply with any term, provision or condition of this Payment Services Agreement, (2) in the event any representation or warranty by Customer shall be untrue or misleading in any material respect, (3) Customer’s financial condition or ability to perform hereunder is impaired in ACTIVE Network’s sole and absolute determination, (4) the Service Agreement is terminated for any reason whatsoever, (5) Customer shall become insolvent or file for bankruptcy or for other relief from creditors generally, (6) in the event of chargebacks or Transaction reversals deemed excessive by ACTIVE Network, (7) failure of Customer to make timely payment of money owed to ACTIVE Network after notice of such non-payment, or (8) Processor notifies ACTIVE Network that Customer is no longer entitled to send an authorization message, settlement message, or other message or payment data related to a Transaction to Processor. Termination of this Payment Services Agreement shall in no manner whatsoever impair or affect ACTIVE Network’s rights or remedies in connection with the Payment Services or the Transactions initiated or requested prior to the date of the termination, and the provisions of this Payment Services Agreement survive termination with respect to the Transactions.
F. THIS AGREEMENT. This Payment Services Agreement, together with the Service Agreement and the rules, regulations, procedures and requirements of any Processor or Association, as modified or amended from time to time, all of which are incorporated by reference herein to the same extent as if set forth herein verbatim, sets forth and constitutes the entire agreement of the parties with respect to the subject matter hereof, is binding on the parties hereto, and it supersedes and discharges all prior or contemporaneous oral or written proposals, communications, negotiations, offers, or agreements concerning the subject matter hereof. Without limiting the foregoing, violation of Association or Processor’s rules, regulations, procedures or requirements shall be deemed a violation of this Payment Services Agreement. There are no oral conditions precedent to the effectiveness of this Payment Services Agreement. The terms of this Payment Services Agreement are in addition to the terms and provisions of the Service Agreement by and between Customer and ACTIVE Network and any other agreement. In the event of a conflict between this Payment Services Agreement and any other agreement by and between Customer and ACTIVE Network, including but not limited to the Service Agreement, the terms and provisions of this Payment Services Agreement shall control with respect to the Payment Services.