PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY, AS ITS PROVISIONS AFFECT YOUR RIGHTS AND LIABILITIES UNDER THE LAW AND SET OUT THE TERMS UNDER WHICH LICENSOR MAKES THE WEB APPLICATION THAT ACCOMPANIES THIS AGREEMENT (“LICENSED WEB APPLICATION”) AVAILABLE TO YOU. THIS AGREEMENT, TOGETHER WITH ALL UPDATES, ADDITIONAL TERMS, WEB APPLICATION LICENSES, THE MERCHANT PROCESSING APPLICATION AND AGREEMENT, AND THE PROGRAM GUIDE, COLLECTIVELY CONSTITUTE THE “AGREEMENT” BETWEEN YOU AND LICENSOR. BY CLICKING THE “I AGREE” BUTTON, DOWNLOADING, INSTALLING, OR OTHERWISE USING THE LICENSED WEB APPLICATION, YOU ARE EXPRESSLY AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE LICENSED WEB APPLICATION.

License. Upon acceptance of the terms and conditions of this End User Agreement (“Agreement”), and subject to your payment of any applicable fees when due, Licensor grants to you, and you accept, a non-exclusive, nontransferable, limited license to install and use the Licensed MX™ Web Application (“Licensed Web Application”) for your internal use in processing card payments. Such use of the Licensed Web Application is in machine-readable form only and is subject to the terms and conditions herein. Licensor expressly reserves any and all other rights with respect to the Licensed Web Application.
License Restrictions. As an express condition of the license granted herein, you shall not do the following: (i) reverse assemble, reverse compile, workaround technical limitations, or otherwise translate the Licensed Web Application, in whole or in part; (ii) create derivative works of the Licensed Web Application or any portion thereof; (iii) transfer, lease, assign or sublicense the license rights granted hereunder to any other person or entity; (iv) perform service bureau work, multiple-user licensing or time-sharing arrangements; (v) copy, distribute, display or otherwise publish the Licensed Web Application or any portion thereof or place the Licensed Web Application or any portion thereof over the internet for use by others. Use of the Licensed Web Application on a mobile device or media device not owned, operated and controlled by you constitutes copyright infringement and exceeds the scope of this license. Furthermore, you shall not use the Licensed Web Application in any manner that violates (i) any intellectual property rights of any person or entity or (ii) any applicable law or regulation. In the event you violate the scope of the license rights granted herein, in addition to any other remedy that may be available to Licensor, your license shall terminate, and you shall uninstall the Licensed Web Application from your device(s).
Title. Title to and ownership of the Licensed Web Application and all related intellectual property including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary information, and all improvements, updates, and modifications thereto, shall remain with Licensor, and you shall have no proprietary rights with respect thereto other than the limited license granted herein, whether by estoppel, implication or otherwise. You agree not to remove or alter any proprietary markings on the Licensed Web Application.
Updates. Licensor reserves the right to make modifications, updates and/or improvements to the Licensed Web Application at any time and without prior notice. In the event that Licensor modifies, updates, or improves the Licensed Web Application, such modifications, updates and/or improvements will be part of the Licensed Web Application and subject to the terms and conditions of this Agreement. You agree that Licensor may use the information you submit to Licensor or through the Licensed Web Application, including without limitation, technical information about your device, to provide its services to you and improve or support the Licensed Web Application. You further agree that Licensor reserves the right to make modifications, amendments, or revisions to this End User License Agreement from time to time. Any such modifications, amendments or revisions shall be posted on the Licensed Web Application or at www.mxmerchant.com/legal/eula.html and any use of the Licensed Web Application following posting of the modifications, amendments or revisions shall constitute your express consent to be bound by the modifications, amendments or revisions and to be bound by the then-current terms.
Connectivity. You understand that connectivity to and use of the functionalities of the Licensed Web Application will require a data network connection. You are solely responsible for acquiring the devices, communication lines and connection to a data network required for operating the Licensed Web Application and any costs associated therewith, including without limitation, data plans, carrier fees or usage costs.
Disclaimer of Warranty and Limitation of Liability.
1. THE LICENSED WEB APPLICATION IS PROVIDED TO YOU “AS-IS”. LICENSOR EXPRESSLY DISCLAIMS, AND YOU HEREBY EXPRESSLY WAIVE, ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. LICENSOR DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE LICENSED WEB APPLICATION WILL CONFORM TO ANY DESCRIPTION, MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED WEB APPLICATION WILL BE UNINTERRUPTED, VIRUS-FREE, ERROR-FREE, FREE OF DEFECTS, THAT DEFECTS IN THE LICENSED WEB APPLICATION WILL BE CORRECTED, OR THAT THE SPEED OF THE SERVICES WILL BE SATISFACTORY TO YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED WEB APPLICATION IS WITH YOU.
2. WITH RESPECT TO ANY THIRD PARTY SERVICES PROVIDED IN CONNECTION HEREWITH, SUCH THIRD-PARTY SERVICES AS PROVIDED ‘AS IS’ AND LICENSOR EXPRESSLY DISCLAIMS, AND YOU HEREBY EXPRESSLY WAIVE, ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. LICENSOR DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE THIRD-PARTY SERVICES WILL CONFORM TO ANY DESCRIPTION, MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE THIRD-PARTY SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE, ERROR-FREE, FREE OF DEFECTS, THAT DEFECTS IN THE THIRD-PARTY SERVICES WILL BE CORRECTED, OR THAT THE SPEED OF THE THIRD-PARTY SERVICES WILL BE SATISFACTORY TO YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE THIRD-PARTY SERVICES IS WITH YOU.
3. Licensor is not responsible for the obsolescence of the Licensed Web Application that may result from changes in your requirements or for the use of superseded, outdated or uncorrected versions of the Licensed Web Application. Further, Licensor shall have no liability for loss of data or documentation, it is understood that you are responsible for reasonable backup precautions.
4. As set forth in Section 4 of the Program Guide, you are responsible for compliance with Payment Card Industry Data Security Standards (“PCI DSS”) in connection with your use of the Licensed Web Application, and Licensor shall not be liable for any fines or other liability incurred by you as a result of non-compliance.
5. LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES. IN ANY EVENT, THE AGGREGATE LIABILITY OF LICENSOR FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM SHALL BE LIMITED TO THE AMOUNT PAID TO LICENSOR BY YOU HEREUNDER FOR THE SPECIFIC PORTION OF THE LICENSED WEB APPLICATION GIVING RISE TO SUCH CAUSE OF ACTION OR CLAIM. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS.
Termination. Your license of the Licensed Web Application shall become effective upon your download, installation or use of the Licensed Web Application and continue until the earliest of (i) the end of the term specified, if any; (ii) immediately upon your failure to comply with any of the terms and conditions herein or (iii) immediately upon notice of termination, with or without cause, by Licensor. You may terminate the license at any time by uninstalling the Licensed Web Application. Sections 2, 3, 4, 5, 6, 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement or the license granted hereunder.
App Store™ Conditions. The following conditions for use of the Licensed Web Application on Apple iPhone® mobile devices and iPod® media devices shall apply and are considered to be accepted by you when you accept the terms and conditions of this Agreement.
1. This Agreement is entered into strictly between you and Licensor, not Apple. Apple shall not be responsible for the Licensed Web Application nor its contents. If this Agreement is more restrictive than or is in disagreement with the conditions of use established in the Apple App store, then the latter shall have precedence over the former.
2. The license granted herein is limited to a nontransferable license, for use of the Licensed Web Application on an iPhone® mobile device or iPod® media device owned by you and, at all times, under the terms authorized by Apple in the conditions of use of its App Store™.
3. Licensor (not Apple) is the only party responsible for the provision of maintenance and support services, if any, relating to the Licensed Web Application.
4. Licensor (not Apple) is the only party responsible for any warranties to which the Licensed Web Application may be subject, to the extent Licensor has not disclaimed such warranties in this Agreement. In the event that the Licensed Web Application does not conform to any applicable warranty, you may notify Apple, and Apple will return the purchase price, if any, of the Licensed Web Application. To the extent permitted by applicable law, Apple does not have any warranty obligation related to the Licensed Web Application, and any complaint, loss, liability, damages, and costs relative to the nonconformance of any applicable warranties shall be the responsibility of Licensor.
5. Licensor (not Apple) is the only party responsible for the management of complaints made by users or third parties relating to the Licensed Web Application, and the possession or use of the Licensed Web Application, including complaints related to (i) product liability; (ii) non-compliance with applicable laws, including laws relating to consumer protection.
6. In the event that a third party claims infringement relating to the Licensed Web Application, Licensor (not Apple) shall be the only party responsible for the investigation, defense, settlement, and discharge of such claims.
7. You warrant to Licensor that: (i) your legal address is not within one of the countries subject to United States embargo or considered by the United States as a supporter of terrorism; (ii) you are not part of any list of entities prohibited by the United States.
8. The contact information of Licensor which you can use for any question and/or complaint relating to the Licensed Web Application is: Priority Payment Systems, LLC, P.O. Box 246, Alpharetta GA 30009-0246.
9. You agree to comply with any applicable third-party agreements in using the Licensed Web Application.
10. You recognize that Apple and its affiliates are considered to be third-party beneficiaries of this Agreement and that Apple may enforce the provisions of this Agreement against you as a third-party beneficiary.
11. Apple®, iPhone® and iPod® are trademarks of Apple Inc., registered in the U.S. and other countries. The App Store™ is a trademark of Apple Inc.
Recurring Billing Services.

The Licensed Web Application includes the “MX™” branded Web Application application and an application to perform recurring billing services (“Recurring Billing Services”) for fees to be set by Licensor from time to time in accordance with the applicable fee schedule. Licensor's Recurring Billing Service is a scheduled payment solution that enables you to automatically bill your customers at regular intervals. The term “Licensed Web Application” includes the term “Recurring Billing Services.”
You must obtain each customer’s consent to bill them on an automated schedule.
To configure a customer to be automatically billed on a schedule, you must define, through the Licensor Web Application, a recurring billing profile for that customer. The profile specifies, among other things, the credit card account to the bill, the associated contact information, the amount to charge each time, the payment period (monthly, weekly, and so on), and the term (the number of payments) of the Agreement. When you submit the data, the Licensor generates the new profile, activates it, and automatically performs the billing on the specified schedule. As time goes on, the profile stores the configuration information that you supplied and the transaction and payment history for the account. When the customer has made all scheduled payments, the profile is mature and no further transactions occur. When defining the profile, you have the option to perform an initial transaction that differs from the recurring transaction. For example, you can perform a no-charge transaction that validates the account information or one to charge an initial fee. In addition, you can specify how to handle declined transactions.
You are responsible for receiving a written agreement between your customer and yourself before beginning the Recurring Billing Services payment period. You shall be solely responsible for obtaining all necessary approvals required from each customer authorizing you to bill such customer’s credit card account and for providing accurate information regarding the credit cards to be billed, the amounts, the billing cycles, billing period and any other information requested by Licensor whether such request is made via the Web Application or otherwise, that is necessary to properly process such Recurring Billing Services transactions. You shall also be solely responsible for complying with all applicable bank and credit card rules with respect to the recurring billing of consumers’ credit cards. You represent and warrant that you have the authorization to bill your customers’ credit card accounts in the manner, for the amounts and for the period of time indicated by you at the time you enroll with Licensor for Recurring Billing Services. You further represent and warrant that you have complied with all applicable bank and credit card rules in billing your customers’ credit cards and in your use of the Licensed Web Application and the Recurring Billing Services.
You acknowledge that Licensor is not a financial or credit reporting institution. Licensor 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 internet service providers (“ISP”), financial institutions, financial processors, 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, your financial processor(s), your financial institution, or any ISP. The Recurring Billing Services present data and information collected from you and data sources other than Licensor and Licensor make no representations or warranties regarding the availability, accuracy, timeliness or completeness of such data and information or any output or results of the Recurring Billing Services based in whole or in part on such data and information. You are solely responsible for the accuracy and completeness of all data you supply.
You acknowledge that it is in the best interests of both parties that Licensor maintains a secure and stable environment; to that end, the Licensor may change the method of access to the Recurring Billing Services at any time. You also agree that, in the event of degradation or instability of the Recurring Billing Services or an emergency, Licensor may temporarily suspend your access to the Recurring Billing Services, any API, and/or any Licensor content under this Agreement in order to minimize threats to and protect the operational stability and security of the Recurring Billing Services. Each party represents, warrants and covenants that it shall at all times comply with applicable Payment Card Industry Data Security Standards, (“PCI DSS”) as such may be amended from time to time, with respect to all card data received by it in connection with this Agreement. Licensor does not guarantee the security of the Recurring Billing Services or transaction data, and Licensor will not be responsible in the event of any infiltration of its security systems if Licensor has used commercially reasonable efforts to prevent any such infiltration.
Your access to use the Recurring Billing Services will commence on the date you accept the terms of this Agreement. If you agreed to monthly billing, this Agreement automatically renews for successive one-month periods, unless terminated or suspended according to the provisions of this Agreement. Renewal is subject to our then-current terms and conditions, including, successful completion of any applicable authentication procedure, and payment of all outstanding fees.
Licensor may terminate the Recurring Billing Services for convenience at any time by providing 30 days prior written a notice to you. Licensor may terminate this Agreement, effective immediately, (i) in the event of insolvency, receivership or voluntary or involuntary bankruptcy, or an assignment for the benefit of your creditors, or in the event that a substantial part of your property is or becomes subject to any levy, seizure, assignment or sale for or by any creditor or governmental agency without being released or satisfied within thirty days thereafter; (ii) if you fail to comply with applicable laws or regulations; (iii) for the conditions set forth in section 9.9; (iv) or if you fail to materially comply with this Agreement. If you purchase separate Recurring Billing Services that are sold together as a "bundled" package, as opposed to your purchasing such Recurring Billing Services separately, termination of any part of the Recurring Billing Services may result in termination of all Recurring Billing Services.
Licensor may suspend your access to the Recurring Billing Services immediately, without prior notice if (i) certain third-party licenses or access to third party components of the Recurring Billing Services are terminated; (ii) you cause or fail to fix a security breach relating to the Recurring Billing Services; (iii) Licensor reasonably believes your breach compromises the security of the Recurring Billing Services; (iv) Licensor reasonably believes fraudulent transactions are being submitted on your account knowingly or negligently; (v) your financial processor or financial institution requires such suspension; (vi) you fail to pay any fees when due; (vii) you fail to upgrade to the most current Web Application version, security updates and/or patches; or (viii) you fail to materially comply with this Agreement.
Licensor will cease providing the Recurring Billing Services and cease charging you for any fees as of the expiration of the billing cycle in which the termination is effective. If termination of this Agreement is due to your default hereunder, you shall bear all costs of such termination, including any reasonable costs Licensor incurs in closing your account. You agree to pay all costs incurred by Licensor in enforcing your compliance with this section. Upon termination, your rights to use the Recurring Billing Services, and any other rights granted hereunder, shall immediately cease, and you shall destroy any copy of the Licensor documentation or other materials licensed to you hereunder and referenced herein. Termination of this Agreement will not relieve either party from any liability arising prior to the termination of this Agreement. To the extent permitted by applicable law, you agree that upon termination, we may delete or retain, in our discretion, information relating to your use of the service.
If Recurring Billing Services are suspended or terminated by Licensor, reinstatement of Recurring Billing Services shall be subject to you paying Licensor (i) new set-up fees, at Licensor's then-current rates; and (ii) all past due to fees.
THE RECURRING BILLING SERVICES AND LICENSED WEB APPLICATION ARE PROVIDED HEREUNDER ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND AND EXCEPT AS EXPRESSLY STATED HEREIN, LICENSOR DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARDS TO THE RECURRING BILLING SERVICES AND WEB APPLICATION. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE RECURRING BILLING SERVICES AND WEB APPLICATION SHALL OPERATE SECURELY OR WITHOUT INTERRUPTION. THE PERFORMANCE OR NONPERFORMANCE OF LICENSOR RECURRING BILLING SERVICES ARE SUBJECT TO ALL APPLICABLE FEDERAL, STATE AND LOCAL HOLIDAYS, BANK HOLIDAYS, BANK CLOSURES, THIRD-PARTY SERVICE PROVIDERS, OR OTHER SERVICE INTERRUPTIONS OR DELAYS THAT MAY CAUSE OR RESULT IN PROCESSING DELAYS OF RECURRING BILLING SERVICES FOR OR ON BEHALF OF YOU OR YOUR CUSTOMER. LICENSOR SHALL NOT BE RESPONSIBLE FOR ANY LOSS, COST, CLAIM, DEMAND, DAMAGE, LIABILITY OR EXPENSE ARISING OUT OF OR RESULTING FROM ANY ACT OF GOD, ACT OF WAR, FORCE MAJEURE EVENT, INTERNET OUTAGE, STORMS, TERRORISM OR THREATS OF TERRORISM, OR ANY OTHER CAUSES BEYOND THE REASONABLE CONTROL OF LICENSOR.
IN NO EVENT WILL LICENSOR'S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO LICENSOR BY YOU HEREUNDER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM FOR DAMAGES. IN NO EVENT WILL LICENSOR OR ITS AFFILIATES HAVE ANY LIABILITY TO MERCHANT OR ANY OTHER PARTY FOR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS 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 LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS SET FORTH ABOVE SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS LICENSOR AND ITS OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, AND AFFILIATES HARMLESS FROM AND AGAINST ANY LOSS, COST, CLAIM, DEMAND, DAMAGE, OR EXPENSE (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATING TO THE RECURRING BILLING SERVICES, INCLUDING WITHOUT LIMITATION CHARGEBACK LOSSES OR CLAIMS MADE BY OR ON BEHALF OF YOU OR YOUR CUSTOMER RELATING TO CLAIMS THAT LICENSOR DID NOT HAVE PROPER RIGHT OR AUTHORIZATION TO PERFORM THE RECURRING BILLING SERVICES; PROVIDED, HOWEVER, THAT NOTWITHSTANDING THE FOREGOING, YOU SHALL NOT BE LIABLE FOR DAMAGES RESULTING FROM LICENSOR’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN THE PERFORMANCE OF ITS RECURRING BILLING SERVICES.

Data Ownership; License Grant. Per Section 3 and other provisions of this Agreement, you acknowledge that Licensor retains all ownership and intellectual property rights to the Licensed Web Application and related programs and services. Licensor retains all ownership and intellectual property rights to anything developed and delivered by Licensor under this Agreement. You retain all ownership and intellectual property rights in and to your data that you or your affiliates, customers, merchants, employees, officers, directors, agents, or contractors submit through the Licensed Web Application (collectively, “Data”). You hereby grant Licensor a royalty-free, worldwide, perpetual right and license to use the Data in performance of the services hereunder and to aggregate, compile, share, use, sell, resell, license, sublicense, distribute and/or publish the Data, internally or externally, for Licensor’s or its affiliates own benefit or the benefit of third parties, provided that any such use of the Data by Licensor shall be performed in such a manner as to remove any personally identifiable information from the Data and that such external use or publication shall be consistent with applicable PCI-DSS standards. Such use of the Data by Licensor may include, but not be limited to, the following circumstances: to aggregate data to show trends about the general use of Licensor’s services, conduct general market analysis, and compile statistics and publish reports.
General.
1. This Agreement shall be governed and construed in accordance with the federal laws of the United States and the laws of the State of Georgia. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods, as amended, shall not apply. Any action relating this Agreement shall be heard in the federal and state courts of the State of Georgia, and you hereby expressly submit to the personal jurisdiction and venue of such courts.
2. No waiver of this Agreement shall be binding unless it is in writing and signed by an authorized representative of Licensor. No written waiver of any provision of this Agreement shall be considered continuing or operate as a waiver of any other provision or subsequent breach of the same provision.
3. The failure of Licensor to enforce any provision of this Agreement shall not be construed as a waiver or limitation of Licensor’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
4. Licensor will not be responsible for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, supplier delays, lockouts, riots, acts of war, epidemics, governmental regulations imposed after the fact, fire, communication line failures, power failures, earthquakes or other disasters.
5. In the event that any of the terms of this Agreement is declared to be invalid or void by any court or tribunal of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from this Agreement and all the remaining terms of this Agreement shall remain in full force and effect.
6. At all times during the term of this Agreement you and Licensor shall be independent contractors.
7. The Licensed Web Application is provided with Restricted Rights. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Web Application – Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Web Application clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement, as applicable. Manufacturer is Licensor.
8. The Licensed Web Application may be subject to U.S. export control laws or regulations or other similar laws or regulations in other countries. You agree to comply with all such laws and regulations, including, without limitation, obtaining any necessary licenses.
9. The Section headings in this Agreement are for identification purposes only and shall not affect the interpretation of this Agreement or any part hereof.
10. The capitalized terms used herein shall have such meanings as set forth in this Agreement. For purposes of this Agreement, “Licensor” means Priority Payment Systems LLC. Licensor is the owner of the Licensed Web Application and reserves the right, in its sole discretion, to grant licenses with rights to sublicense the Licensed Web Application on a non-exclusive basis to merchants, agents, subagents, independent sales organizations (“ISO’s”) and merchant service providers (“MSP’s”).
11. This Agreement is intended to supplement the Merchant Processing Application and Agreement, which incorporates the Program Guide, between you and Licensor. In the event of a conflict between this Agreement and the Merchant Agreement and/or Program Guide, the Merchant Agreement and/or Program Guide shall control.
12. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.11, THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF LICENSOR’S OBLIGATIONS AND RESPONSIBILITIES TO YOU AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF OF LICENSOR RELATING TO THE SUBJECT MATTER HEREOF.

API Terms of Use

THESE TERMS OF USE (“TERMS OF USE”) GOVERN YOUR USE OF THE PRIORITY PAYMENT SYSTEMS LLC (“PRIORITY”) API. BY UTILIZING PRIORITY’S API, YOU AGREE TO BE BOUND BY THESE TERMS OF USE. PRIORITY (“PRIORITY”) RESERVES THE RIGHT TO CHANGE THESE TERMS OF USE AT ANY TIME IN ITS SOLE DISCRETION, WITHOUT NOTICE TO YOU, AND YOU AGREE THAT SUCH CHANGES WILL BE BINDING ON YOU. YOU ARE ENCOURAGED TO REVIEW THESE TERMS OF USE FROM TIME-TO-TIME SO THAT YOU MAY KEEP ABREAST OF ANY CHANGES THERETO. THE TERMS OF USE APPLICABLE TO YOUR USE OF THE PRIORITY API ARE THE THEN-CURRENT API TERMS OF USE. YOU ARE ENCOURAGED TO RETAIN A COPY OF THE PRIORITY API TERMS OF USE FOR FUTURE REFERENCE. PRIORITY MAY DENY ACCESS TO ITS API TO ANYONE IN ITS SOLE DISCRETION FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, FAILURE TO COMPLY WITH THESE API TERMS OF USE.

Intellectual Property Rights. The Priority API is the proprietary intellectual property of Priority and is offered for use subject to these Terms of Use as well as applicable law. Priority’s API may not be copied, reverse engineered, decompiled, disassembled, modified, reposted to other web sites, framed, deep linked to, changed, or otherwise distributed, redistributed, licensed, sublicensed or transferred in any form by you without the prior express written permission of Priority. Any unauthorized commercial use of Priority’s API in violation of these Terms of Use, or of Priority’s intellectual property rights, will be subject to the exercise of Priority’s full legal rights and remedies.
Grant of Limited Right to Use the Priority API. You are hereby granted, a limited, nonexclusive, revocable license to use the Priority API for your own use. You may not grant to others the right to license, sublicense, sell, transfer, assign, republish, distribute, copy, prepare derivative works or make any other unpermitted use of Priority’s API. You may not access or use the Priority API in any way that could, or is intended to, damage or impair the Priority API or other Priority systems, or other third-party systems that the Priority API serves or accesses. You may not use the Priority API in a manner that interferes with, or impedes, other users of the Priority API. Except for the limited rights expressly granted herein, all right, title and interest in the Priority API remain vested in Priority. Your right to utilize the API may be terminated at any time, without notice, in the sole discretion of Priority.
Impermissible Uses. You may not use the Priority API for:
1. Any purpose inconsistent with the permissions granted pursuant to the Priority API Terms of Use.
2. You may not make use of the Priority API for any illegal purpose
Indemnification. You agree to indemnify, defend and hold Priority, the credit card associations, its sponsor bank, and its business partners, and its’ and their staff and affiliates harmless from any liability, loss, damage, claim, and expense, including reasonable attorneys' fees, expenses and costs, related to either your violation of these Terms of Use or your use of the Priority API.
No Representation or Warranty.
1. Priority will undertake reasonable efforts to ensure that the API functions properly; however, such functionality cannot be guaranteed and Priority does not assume any responsibility or liability for the functionality of the API.
2. THE PRIORITY API IS PROVIDED TO YOU “AS IS,” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, QUALITY OF INFORMATION, OR FITNESS FOR A PARTICULAR PURPOSE. NO INFORMATION OR DATA TRANSFERRED OR OBTAINED BY, OR TO, YOU IN CONNECTION WITH YOUR USE OF THE PRIORITY API SHALL BE SUBJECT TO ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITATION, PRIORITY DISCLAIMS ALL WARRANTIES REGARDING THE AVAILABILITY OF THE API, THAT THE API WILL OPERATE ERROR-FREE, THAT DEFECTS IN THE API WILL BE CORRECTED OR THAT THE API IS FREE OF VIRUSES OR OTHER MALICIOUS OR HARMFUL COMPONENTS. YOUR USE OF THE PRIORITY API IS AT YOUR OWN RISK. ANY DATA OR INFORMATION TRANSMITTED VIA, OR OTHERWISE OBTAINED THROUGH, THIS API IS AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEMS OR FOR ANY DATA LOSS, AND THE CONSEQUENCES THEREOF, RESULTING FROM YOUR USE OF THE PRIORITY API, INCLUDING WITHOUT LIMITATION, DAMAGE RESULTING FROM LOST, MISDIRECTED OR INCOMPLETE DATA, COMPUTER VIRUSES OR MALWARE OF ANY TYPE.
Damages Disclaimer and Limitation of Liability IN NO EVENT SHALL PRIORITY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO PROPERTY DAMAGE, LOSS OF USE, LOSS OF BUSINESS, ECONOMIC LOSS, LOSS OF DATA OR LOSS OF PROFITS, WITHOUT REGARD TO THE FORM OF ACTION (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTIONS) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OR ACCESS OF THE PRIORITY API, EVEN IF PRIORITY OR ITS BUSINESS PARTNERS, THE CARD ASSOCIATIONS, PRIORITY’S SPONSOR BANK, OR THE EMPLOYEES, REPRESENTATIVES OR AFFILIATES OF ANY OF THEM, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. IN NO EVENT SHALL PRIORITY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE LESSER OF THE AMOUNT PAID BY YOU FOR ANY SERVICE PROVIDED BY PRIORITY, OR ONE HUNDRED DOLLARS ($100).
Governing Law You agree: (1) that any claims, demands, disputes, and controversies between or among you and Priority, or any persons bound hereby, that arise out of or relate to these Terms of Use or your use of the Priority API (individually and collectively, a “Dispute”), shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to conflict of law principles; (2) to submit yourself and any such Dispute to the exclusive jurisdiction of the state and federal courts located in Fulton County, Georgia; and (3) that you will not commence any action arising out of or related to your use of the Priority API or these Terms of Use in any other court, venue or jurisdiction. The parties agree to submit to the personal jurisdiction of the state and federal courts in Fulton County, Georgia and will not object to any action brought therein on the grounds of lack of jurisdiction, venue, or forum non-conveniens.

Should any part or provision of these Terms of Use be held unlawful, void, invalid or unenforceable, that portion shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.

These Terms of Use constitute the entire agreement between you and Priority pertaining to your use of the Priority API. By utilizing the Priority API, you are hereby deemed to have accepted these Terms of Use, and such acceptance will be binding upon you.

Privacy Notice

Priority Payment Systems LLC (“PPS”) respects your concerns about privacy. This Privacy Notice applies to PPS payment processing services (the “Service”). It describes the types of personal data we collect in connection with the Service, the purposes for which we collect such personal data, the other parties with whom we may share it and the measures we take to protect the security of the data. It also tells you about your rights with respect to your personal data, how you can reach us to update your information or get answers to questions you may have about our privacy practices.

Personal Data We Collect
In connection with your use of Service, we may collect certain personal data from participating Merchants and their respective service providers, developers and/or admins when an account is being created on behalf of the Merchant as part of the enrollment process to the Service. Such personal data includes, but is not limited to, business type, legal name, tax id, business start date, filing state, business address, owner name, owner date of birth, owner phone number, owner mobile phone number, owner social security number, owner address, customer service phone number, bank name, bank routing number, bank account number, username, and password.
How Do We Use Personal Data We Collect
We may use the personal data we obtain about you to:
1. Create and manage your online account, provide the Service to you, and respond to your inquiries;
2. Validate your payment card information;
3. Provide, administer and communicate with you about products, services, and promotions including the display of customized content and advertising;
4. Protect against and prevent fraud, unauthorized transactions, claims, and other liabilities, and manage risk exposure and franchise quality;
5. Operate, evaluate and improve our business (including by developing new products and services; managing our communications; determining the effectiveness of our advertising; analyzing our products, services, and websites; facilitating the functionality of our websites; and performing accounting, auditing, billing, reconciliation and collection activities);
6. Assist third parties in the provision of products or services that you request from third parties;
7. Monitor the use of and improve our interactive assets;
8. Perform data analyses (including anonymization of personal information) to determine, among other measurements, business performance, number of registrants, channels, transaction spend and site performance;
9. Enforce our Terms of Use;
10. Comply with applicable legal requirements and industry standards and our policies; and
11. Perform auditing, research and analysis in order to maintain, protect and improve our services.
Personal Data We Share
We do not sell or otherwise disclose personal data we collect about you, except as described herein or otherwise disclosed to you at the time the data is collected.
We share personal data to perform payment card transactions and to perform the services requested through the Service. We may share the personal data we collect with our affiliates, financial institutions that issue payment cards or process payment card transactions, entities that assist with payment card fraud prevention, and merchants. For example, in this context, we provide financial institutions with information about their cardholders' bank card transactions. We may share aggregated, de-identified and other non-personally identifiable information with participating financial institutions and their customers. For example, we may share data to show trends about the general use of the Service.
We also may share data with our third-party service providers who perform services on our behalf. We do not authorize these service providers to use or disclose such data except as necessary to perform certain services on our behalf or comply with legal requirements. We require these service providers by contract to appropriately safeguard the privacy and security of personal data they process on our behalf.
We also may disclose personal data about you (i) if we are required to do so by law or legal process, (ii) to law enforcement authorities or other government officials, or (iii) when we believe disclosure is necessary or appropriate to prevent physical harm or financial loss, or in connection with an investigation of suspected or actual fraudulent or illegal activity. We also reserve the right to transfer personal data we have about you in the event we sell or transfer all or a portion of our business or assets. Should such a sale or transfer occur, we will use reasonable efforts to direct the transferee to use personal data you have provided to us in a manner that is consistent with this Privacy Notice. Following such a sale or transfer, you may contact the entity to which we transferred your personal information with any inquiries concerning the processing of that information.
How We Protect Personal Data
We restrict access to personal data about you to those employees who need to know that information to provide products or services to you. We maintain reasonable administrative, technical and physical safeguards that comply with state and federal regulations to protect the personal data we have about you. We also take measures to destroy or permanently de-identify personal information when there is no longer a business need to keep the information. The types of measures we take vary with the type of information, and how it is collected and stored.
Updates to Our Privacy Notice
This Privacy Notice may be updated periodically and without prior notice to you to reflect changes in our personal information practices. We will post a prominent notice on our websites to notify you of any significant changes to our Privacy Notice and indicate at the top of the notice when it was most recently updated.
How to Contact Us
Subject to applicable law, you may have the right to request access to and receive information about the personal data we maintain about you, update and correct inaccuracies in your personal data, and have the information blocked or deleted, as appropriate. The right to access personal data may be limited in some circumstances by local law requirements. To update your preferences, ask us to remove your data from our mailing lists or submit an access request, please contact us as specified below. If you have any questions or comments about this Privacy Notice or if you would like us to update the data we have about you or your preferences, you may also contact us by writing to:
[email protected]