The CardFellow Web site is as an online venue where Merchants and Service Provider may locate and connect with each other. The Web site features Merchants in need of professional services for electronic bankcard processing. CardFellow provides Service Provider with an online venue where Service Provider may post a Quote to offer Merchants electronic bankcard processing services. CardFellow only provides the venue for Service Provider to find and contract with Merchants. CardFellow provides no other services to Service Provider and is not involved in the contracting between Merchants and Service Provider.
As used throughout the Agreement:
“Agreement” means the terms of service.
“Quote” means the rates, fees, and terms offered to a Merchant by a Service Provider that the Merchant would be expected to pay and agree to if they choose to utilize the Service Provider’s products and/or services.
“Account” means the CardFellow Account you open when you register to become a Member and use the Services.
“Merchant” means a Member that investigates, purchases, or utilizes Provider Services.
“Service” means any of the above Services that are delivered by CardFellow.
“Member” means a person or legal entity that registers for an Account.
“Service Provider” means a Member that offers and delivers Provider Services.
“Provider Services” means any and all Services delivered by Service Provider including but not limited to electronic bankcard processing services and the sale and servicing of electronic bankcard processing equipment and software.
“User” means (1) a person who is a Member, using the Site on his or her own behalf, or (2) a person who is using the Site on behalf of a Member that is a company or organization.
“Markup” means the total fees paid by a Merchant to a Service Provider above and beyond the sum of interchange, assessments and debit network charges.
3. RELATIONSHIP WITH CARDFELLOW
CardFellow has no control over and does not guarantee the ability of Merchants to pay for Provider Services, or that a Merchant can or will actually complete a transaction. CardFellow is not required to and does not verify any information given to us by Merchants, nor does CardFellow perform background checks on Merchants. All rights and obligations for Provider Services are solely between Merchant and Service Provider. Service Provider must look solely to Merchant for enforcement of any rights and obligations arising from contracts with or quotes submitted to Merchants. Nothing in this Agreement shall be deemed to create an agency, partnership, joint venture, or employee-employer relationship with Service Provider or Merchant.
4. SERVICE PROVIDER REPSONSIBILITIES
Service Provider shall:
- a) Keep Merchant and Service Provider profile information updated to include:
- Marking all approved Merchants as “Active” in CardFellow;
- Marking all closed Merchants as “Cancelled;” and
- Keeping Service Provider profile updated and accurate.
- b) Be a registered Independent Sales Organization (ISO) with Visa & MasterCard and be listed on Visa’s published ISO list, or be able to provide satisfactory documentation that they have been registered but not yet added to the list.
- c) Abide by all terms of this Agreement.
- d) Abide by all CardFellow Web site Policies.
5. SERVICE PROVIDER REPRESENTATIONS
Service Provider represents and warrants the following:
- a) User for Service Provider has full authority to execute and perform this Agreement.
- b) Service Provider’s execution and performance of these terms will not violate any law or breach any other agreement.
- c) Service Provider will verify the accuracy and completeness of all data provided to CardFellow.
- d) Service Provider will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure.
- e) Service Provider will not interfere or attempt to interfere with the proper operation of the Web site or any activities conducted on the Web site.
- f) Service Provider agrees to the terms of this Agreement and Service Provider will not use CardFellow’s Services if Servicer Provider does not agree to the terms of this Agreement.
During the course of Service, Service Provider acknowledges and agrees that it may have access to Proprietary Information. “Proprietary Information” means, collectively, Confidential Information and Trade Secrets of CardFellow and includes, but is not limited to the following: Web site, Web site features, Web site look, feel and design; Web site programming, coding, formulas, or processes; trademarks; trade names; business model, pricing, and services; data of any kind on Merchants or Service Providers; or any other confidential or proprietary matter.
Except as agreed in writing by an authorized representative of CardFellow, Service Provider shall not do any of the following with respect to Proprietary Information: (a) disclose, duplicate or publish at any time; (b) use for the benefit of Service Provider directly or indirectly in competition with CardFellow; (c) misappropriate for Service Provider’s use; or (d) use unfairly causing financial harm or the threat of financial harm.
Service Provider further agrees not to: (e) dissemble, decompile or reverse engineer any Proprietary Information; (f) attempt any unauthorized access to or compilation of Proprietary Information; and (g) duplicate or reproduce any Proprietary Information; (h) use any robot, spider, scraper or other automated means to access the Web site for any purpose without our express written permission; (i) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Web site) from the Web site without the prior express written permission of CardFellow and the appropriate third party, as applicable; (j) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site.
The nondisclosure and confidentiality obligations set forth herein shall survive termination of this Agreement for any reason and shall remain in effect for as long as the owner of such information is entitled to protection thereof.
Service Provider acknowledges that unauthorized use of Proprietary Information will diminish the value of such information and will cause substantial and irreparable damage to the CardFellow, and that the remedies generally available at law may be inadequate. Accordingly, Service Provider agrees that a breach of this Section shall permit CardFellow to obtain equitable relief to protect its interest herein, including injunctive relief (without posting bond), as well as money damages, costs, and attorney’s fees.
7. DISCLAIMER OF ALL WARRANTIES
NO WARRANTIES ARE GIVEN BY CARDFELLOW, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULARPURPOSE. ALL SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WHERE IS” AND CARDFELLOW DISCLAIMS ALL WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. CARDFELLOW DOES NOT WARRANT THAT THE SERVICES, SERVICE DELIVERABLES, OR ANY THIRD PARTY PRODUCTS ARE ERROR-FREE, OR WILL OPERATE IN AN UNINTERRUPTED MANNER OR IN COMBINATION WITH OTHER SOFTWARE PRODUCTS. CARDFELLOW MAKES NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, IDENTITY OR RELIABILITY OF ANY THIRD PARTY, OR AS TO THE ACCURACY OF THE POSTINGS MADE ON THE WEB SITE BY ANY THIRD PARTY, INCLUDING MERCHANTS AND SERVICE PROVIDERS.
8. LIMITATION OF REMEDY
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL CARDFELLOW FACE LIABILITY TO YOU FOR ANY ACTION OR CLAIM RELATED TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, WARRANTY, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY FOR ANY AMOUNT.
SERVICE PROVIDER ACKNOWLEDGES THAT THE LIMITATION OF LIABILITIES AND DISCLAIMERS OF WARRANTY CONTAINED HEREIN CONSTITUTE AN AGREED UPON ALLOCATION OF RISK BETWEEN THE PARTIES.
Service Provider agrees to defend and indemnify and hold CardFellow, its affiliates, subsidiaries, officers, shareholders, employees, and agents harmless from and against any damages, judgments, claims, liability, loss, cost or expense, or attorney’s fees, (including, but not limited to expenses and fees incident to proceedings or investigations or the defense of any claim) arising out of, resulting from, or related to (i) any failure by Service Provider to perform or observe any term or provision of this Agreement; or (ii) any breach of this Agreement by Service Provider; or (iii) any claims of any kind made against CardFellow arising out of Service Provider’s use of CardFellow Web site or Service Provider’s contract(s) or dealings with Merchants; or (iv) your obligations to any Merchant. Service Provider shall honor and accept a request for defense and indemnification pursuant to this Section. CardFellow reserves the right to participate in any such defense through use of its own attorney at its own cost and expense. This obligation to defend and indemnify survives termination of this Agreement for any reason.
10. MERCHANT REVIEWS AND SERVICE PROVIDER CONTENT
a. Merchant Reviews. CardFellow permits Merchants to post reviews of Service Providers on the Web site after acceptance of Quotes. Service Provider acknowledges and understands that Merchant reviews are not the responsibility of CardFellow.
b. Service Provider Content. At its discretion, CardFellow may permit Service Provider to post tutorials and articles authored by Service Provider on the Web site. CardFellow reserves the right and may, at any time, edit such tutorials or articles. However, at all times, Service Provider remains the author of such materials. Although CardFellow does not claim ownership of content that Service Provider may be permitted to post, Service Provider automatically grants, and Service Provider represents and warrants that it has the right to grant, to CardFellow an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, and distribute said content and to prepare derivative works of, or incorporate into other works, said content, and to grant and authorize sublicenses (through multiple tiers) of the foregoing. Furthermore, by posting content to any public area of the Web site, you automatically grant CardFellow all rights necessary to prohibit any subsequent aggregation, display, copying, duplication, reproduction, or exploitation of the content by any party for any purpose.
11. TERM AND TERMINATION
This Agreement shall become effective as of the earliest date the Service Provider uses CardFellow’s Web site, Services, or signs up with CardFellow.
Without limiting CardFellow’s rights or remedies under this Agreement, CardFellow may issue a warning, temporarily suspend, indefinitely suspend or terminate any or all Services under this Agreement at any time and for any reason, or if: (a) you breach any terms and conditions of the Agreement or the linked policies and information incorporated herein by reference, including our written policies and procedures posted on the Web site; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe in our sole discretion that your actions may cause legal liability for you, Merchants or for CardFellow or are contrary to the interests of the Web site or the CardFellow user community. Once temporarily suspended, indefinitely suspended or terminated, you may not continue to use the Web site under the same Account, a different Account or reregister under a new Account without the written authorization of an authorized representative of CardFellow.
Service Provider will not transfer, assign or delegate any rights or obligations under this Agreement to anyone without the express written permission of CardFellow, and any attempt to do so will be null and void. CardFellow may assign this Agreement in its discretion and any such assignee shall succeed to all of CardFellow’s rights and obligations hereunder. Any attempt to assign this Agreement in contravention of this Section shall be void and of no force and effect.
If any one or more of the provisions contained herein shall for any reason be held to be unenforceable in any respect, such unenforceability shall not affect any other provision of this Agreement, but this Agreement shall then be construed as if such unenforceable provision or provisions had never been contained herein. All provisions necessary to CardFellow’s enforcement of this Agreement will survive termination of this Agreement.
14. NO WAIVER
A waiver of a breach or default under this Agreement shall not be waiver of any subsequent breach or default hereunder. Failure of either party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition.
Service Provider agrees to pay all costs and attorney’s fees incurred by CardFellow to enforce this Agreement or if CardFellow is successful in whole or in part in any proceeding arising out of Service Providers use of CardFellow’s Web site.
16. ENTIRE AGREEMENT
This Agreement together with all posted policies on the Web site related to Terms of Service constitute the entire agreement between the parties concerning CardFellow’s Web site and Services and supersedes any prior or contemporaneous oral or written representations with regard to the subject matter hereof.
CardFellow may make changes to any aspect of the Web site, including, without limitation, any Content, any activities available on this Web site, and any products or services offered through the Web site. CardFellow may revise this Agreement by updating or revising this Agreement WITHOUT notice of changes to you. Service Provider agrees that continued use of the Web site or CardFellow’s Services constitutes agreement by Service Provider to any such revisions or modifications.
18. LAW, JURISDICTION AND VENUE
All suits, proceedings and other actions relating to, arising out of or in connection with this Agreement will be submitted to the exclusive, in personam jurisdiction to the courts of the State of Connecticut. Venue for all such suits, proceedings and other actions will be exclusively in Connecticut. Service Provider hereby waives any claims against or objections to such in personam jurisdiction and venue. Service Provider agrees that the law of the State of Connecticut will apply to any actions or proceedings arising out of this Agreement or use of CardFellow’s Web site without regard to conflicts of law.
Any notices or demands to CardFellow must be sent to:
PO BOX 221
East Berlin, CT 06023