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General Terms and Conditions

The use of services from AceraTechnologies.com [hereafter referred to as "ACERA" or "The Company" constitutes agreement to these terms.

Welcome to our website. If you continue to browse and use this website you are agreeing to comply with and be bound by the following terms and conditions of use, which together with our privacy policy govern Acera Technologies' relationship with you in relation to this website.

The term "Acera Technologies" or "Acera" or "The Company" or "us" or "we" refers to the owner of the website whose registered address is PO Box 1095, Gaylord, MI 49734. The term "you" refers to the user or viewer of our website.

The use of this website is subject to the following general terms of use:

  • The content of the pages of this website is for your general information and use only. It is subject to change without notice.
  • Neither we nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.
  • Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements.
  • This website contains material which is owned by or licensed to us. This material includes, but is not limited to, the design, layout, look, appearance and graphics. Reproduction is prohibited other than in accordance with the copyright notice, which forms part of these terms and conditions.
  • All trademarks reproduced in this website, which is not the property of, or licensed to the operator, are acknowledged on the website.
  • Unauthorized use of this website may give to a claim for damages and/or be a criminal offense.
  • From time to time, this website may also include links to other websites. These links are provided for your convenience to provide further information. They do not signify that we endorse the website(s). We have no responsibility for the content of the linked website(s).
  • Any abuse of our staff in any medium or format will result in the suspension or termination of your services we provide without refund. Abuse includes coercion, foul language, yelling, pushiness, and any other behavior considered to be unprofessional. Any tactic used to manipulate a particular result will be construed as a reason for the cancellation of services without refund.
  • Your use of this website and any dispute arising out of such use of the website is subject to the laws of Michigan and the United States.

Copyright Notice

© Acera Technologies 1997-2016
All Rights Reserved
No part of this website or any of its contents may be reproduced, copied, modified or adapted, without the prior written consent of the author, unless otherwise indicated for stand-alone materials.

You may share this website by any of the following means:

  1. Using any of the share icons available on each page (Facebook, Twitter, LinkedIn, Google+, Pinterest, or Share);
  2. Providing a back-link or the URL of the content you wish to disseminate; and
  3. You may quote extracts from the website with attribution to http://www.aceratechnologies.com

For any other mode of sharing, please contact the author at the following email: support@aceratechnologies.com

Commercial use and distribution of any part or all of the contents of the website is prohibited without express and prior written consent of the author with the following exceptions:

  • you may print or download to a local hard disk extracts for your personal and non-commercial use only
  • you may copy the content to individual third parties for their personal use, but only if you acknowledge the website as the source of the material

You may not, except with our express written permission, distribute or commercially exploit the content. Nor may you transmit it or store it in any other website or another form of electronic retrieval system.

General Disclaimer

The information contained in this website is for general information purposes only. The information is provided by Acera Technologies and while we endeavour to keep the information up-to-date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

In no event will we be liable for any loss or damage including without limitation, indirect or consequential loss or damage, or any loss or damage whatsoever arising from loss of data or profits arising out of or in connection with the use of this website.

Through this website, you are able to link to other websites which are not under the control of Acera Technologies. We have no control over the nature, content and availability of those sites. The inclusion of any links does not necessarily imply a recommendation or endorse the views expressed within them.

Every effort is made to keep the website up and running smoothly. However, Acera Technologies takes no responsibility for and will not be liable for the website being temporarily unavailable.

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Following are terms of use regarding specific services provided by Acera:

WEBSITE DESIGN - Terms and Conditions

The use of web design services from Acera Technologies [hereafter referred to as "Acera" or "The Company"] constitutes agreement to these terms.

1. Authorization.

The Client authorizes Acera Technologies at PO Box 1095, Gaylord, MI 49734 (herein referred to as "The Company" or "Acera") to develop a website for their Organization (herein referred to as "The Client") for a specified domain. The Client authorizes The Company to access Client's web host server to upload and download files as needed from the Client directory for the purposes of creating a website. The Client authorizes the use of Client's logo and all brand identification in the creation of the website. If hosting with Acera and as necessary, the Client authorizes The Company to purchase a domain, stock photography, and any other services or materials required for the express purpose of the creation of the Client's website.

2. Fees.

Full payment is required up front for all projects/services under $10,000.00. Projects above this amount require a minimum 70% downpayment, with the remaining 30% due upon project completion. Occasionally, special payment arrangements may be made upon Client request.

3. Term.

The Agreement will come into force on the Date of Payment (A. Full payment on all projects under $10,000.00; B. 70% Downpayment upon request for any projects over $10,000.00; or C. Other special payment arrangement) and will continue in force until the acceptance of the Website by The Client.

Project will not commence until The Client provides all materials required by The Company which may include any or all of the following: textual content, photos/images, logos, links, design preferences, valid hosting information and access, valid domain, and for online storefronts, product information, valid payment gateway, and shipping information. Depending on the site, other information or details may be required as well at the discretion of Acera Technologies.

Once a project has commenced, most website projects generated from a custom website design package are scheduled for completion within 15 business days. Projects not started based on a purchase directly through this website will be completed in as timely manner as possible and we will usually tell you a time frame before purchase or during construction of your project. Depending on the complexity of your project, project time may be extended for any reason whatsoever including but not limited to our current work load or opportunity with more profitable projects. We make every effort to deliver in a timely manner as it is good for the client and for The Company. The more complex the project, the more additional time we may require. The Company will normally inform The Client if their project is expected to take additional time; however, we invite the client to check in on their project at any time using email to request an update.

4. Add-Ons and Mods.

Should The Client request design services including any add-ons, mods, scripts, or special website functionality outside the parameters of a website package that have not been purchased either with or after initial website purchase, Acera will invoice The Client for these items. These add-ons or mods will be included with initial delivery only after they have been purchased by the client.

5. Project Completion

Project is deemed complete and accepted by the client the moment it becomes visible for the first time on their selected domain. We use a computer screen shot of the website appearing in a browser as proof of our delivery of the website to your domain. The Client will be notified upon site completion via email.
 

6. Changes.

The Client shall be responsible for making additional payments for changes in original assignment.

After delivery to Client domain, Client has no more than 30 days from the date of delivery to review the website and submit basic changes or tweaks and to report any errors or ommissions. Tweaks and changes are granted if and only if a free pass of changes is indicated on the exact package purchased or if a pass of changes is indicated on the invoice used for purchase. Not all packages or projects include a pass of changes so please check your project parameters before inquiring about changes. Change requests are reviewed by The Company and completed at The Company's sole discretion. The Client may be invoiced for any and all services requested regardless of any pass of changes indicated. If we consider the request to be a change of direction or if changes requested cannot be concluded in less than a 2 hour period, the request will be returned with an appropriate invoice for the work involved in bringing satisfaction to the Client. Change requests involving less than 2 hours of work will normally be conducted within 3-5 business days of acknowledgment of the change requests. After 30 days from delivery to The Clients' domain, any and all passes of changes will be considered concluded. All future requests will be billable at our regular rates of $125.00 per hour. The Company is not obligated for any reason to perform additional services or passes of changes while there is a past due balance on The Clients account.

Acera requires each pass of changes to be submitted as a single list of changes. This list should be submitted via email to webdesign@aceratechnologies.com. Multiple emails may be considered as multiple passes and may be billed as such at the discretion of Acera Technologies. Acera will review each pass of changes and determine which items are valid in accordance with what we consider to be tweaks as the client may not understand the coding or programming involved in any particular request they might make. Programming changes that seem small to the client may, in fact, be a huge undertaking and vice versa. Acera alone will decide which items may be considered new billable items.

The initial pass of changes must be submitted within 30 days of initial delivery of the project. After 30 days, any changes submitted will be considered new work and billable at our regular rates.

Acera expects change requests to coincide with the initial design preferences stated by the client. These can include changes to the text, basic changes to images, and basic or trivial layout changes. New information or complete changes in direction are not included. For example, if The Client initially requests for the site to be pink, then upon review decides they would rather have the site be blue, Acera considers this to be a complete change of direction and subject to our regular rates. Client requests for change that involve special scripting or programming to complete will be considered an add-on or change of direction and will be subject to our regular rates.

7. Default in Payment.

The Client shall assume responsibility for all collection of legal fees necessitated by default in payment.

8. Deadlines.

The Company agrees to have Client's website completed in as timely manner as feasible and as indicated by The Company. The Company shall not be held responsible for delays of any kind. Site development arising out of Client's delays in providing graphics, text, and logins to The Company may result in extra fees. If the website is not completed due to lack of Client assistance, The Company may a) Extend the project deadline indefinitely or b) Create a website using all content that has been provided and deliver "AS IS". c) issue a reinstatement fee of no less than $75.00 or 10% of the project value whichever is greater

9. Copyright.

The Client represents that all website content including logos, trademarks, photos, illustrations, audio, video, and written content provided to The Company are owned by the Client, or the Client has received explicit permission for use and does not violate United States copyright law.

Client has also received permission from all individuals photographed to be shown on the web. Each person in photos going online understands that their face will be seen on the Internet. Any names and contact information placed on the website also have been provided with consent from each individual.

Client agrees to indemnify and hold Acera Technologies harmless against all claims, including but not limited to claims of copyright or trademark infringement, violations of the rights of privacy or publicity or defamation, arising out of use of the work.

10. Ownership of Copyright.

Copyright to the finished web design site produced by The Company will be owned by The Company. The Company acknowledges and agrees that the Client retains all rights to copyright in the subject material for their own purpose. Client will own rights to use the entire website itself and may use the website in any way that Client desires and for as long as Client desires with the exception of reselling or remanufacturing. The Client will be assigned rights to use the Web Design Project as a web site, once final payment under this agreement and any additional charges incurred have been paid. Rights to photos, graphics, source code, scripts, work-up files, and computer programs specifically are not transferred to the Client and remain the property of their respective owners. Acera Technologies and its subcontractors retain the right to display graphics and other web design elements as examples of their work in their respective portfolios. All Web Design Projects will contain a copyright/legal statement with a link to Acera Technologies web site must remain on the website at all times.

11. Ownership and Return of Artwork.

All content created by The Company and/or her subcontractors for the Client are the property of the Client. Client hereby grants to The Company the right to use the work for demonstration of past work performed via portfolio or advertising/marketing purposes.

12. Cancellation of Work.

In the event of cancellation of this assignment, ownership of all copyrights and any original artwork shall be retained by The Company.

By Client: Client may cancel work on the website at any time by submitting notice to The Company via certified mail. The Company will halt work upon receipt of certified letter from Client requesting cancellation. At that time, Client will be responsible for paying for all work completed prior to The Company's receipt of cancellation request. Work completed shall be billed at our regular rates of a minimum of $125.00 per hour for each individual service, regardless of price breaks offered in package purchases. If, at the time of request for refund, work has been completed beyond the amount of work paid for by the initial payment, the Client shall pay for all work completed immediately.

By The Company: The Company reserves the right to refuse service and cancel a website project if necessary for any reason whatsoever, in which case, the balance of the initial payment will be returned to Client after all applicable fees have been deducted for work completed.

13. Internet Access.

Access to the internet will be provided by a separate Internet Service Provider (ISP) to be contracted by the Client and who will not be a party to this agreement.

14. Other Electronic Commerce Business Relationships.

The Client understands that the web host, credit card processing services, and any other businesses not owned by The Company are not parties to this contract and are separate business entities from The Company. The Client understands that The Company has no control over functionality or availability of website due to the actions or inaction of the web host server, credit card processing, online banking, and any other business services the Client uses to transact business over the Internet outside of The Company. The Company makes no representations, warranties or guarantees for any recommendations of other third party Internet business partners.

15. Progress Reports.

The Company shall initiate with the Client as deemed necessary by The Company to report tasks completed, problems encountered, and or recommended changes relating to the development and testing of the web site. At no time may The Client demand a report at any particular before the completion of the project, however, The Company will receive update requests and attempt to keep The Client informed satisfactorily.

16. Program Use.

Upon written request, the Company agrees to attempt to notify the Client of any licensing and/or permissions required for art-generating/driving programs, add-ons, or mods that may need to be used in a project.

17. Testing and Acceptance Procedures.

The Company will make every good-faith effort to test all elements of the web site thoroughly and make all necessary corrections as a result of such testing prior to handing over the deliverables to the Client.

The Client is also responsible to examine and test the site for any errors or ommissions, and inform The Company of such within 30 days of delivery. The Company will fix these errors at no additional charge, and they are not considered to be part of the pass of changes.

All errors submitted more than 30 days after delivery, may be considered billable changes at the discretion of the Company.

18. Sole Agreement and Amendment.

These terms constitute the sole agreement between The Company and the Client and hereby voids any prior agreements, written or verbal. This agreement may be amended, in writing at any time by The Company.

19. No Guarantees - Liability and Warranty Disclaimer.

The Company makes no representations or guarantee of any kind as to the usability or possible profitability of anything we create nor to the amount of traffic to the Client's site or interest generated at the Client's site. The Company makes no representations and does not guarantee Client sales, nor does The Company promise top listing in any search engine or directory. The Company will use their best efforts to perform their creative and technological duties in accordance with what they have been paid but makes no representation or guarantee that the site will be accessible by all browser and operating systems or that all requests of The Client can be translated into a working website in the online world.

The Company provides their website and the contents thereof on an ‘as is’ basis and makes no warranties with regard to the site and its contents, or fitness of services offered for a particular purpose. The Company cannot guarantee the functionality or operations of their website or that it will be uninterrupted or error free, nor does it warrant that the contents are current, accurate or complete.
 
The Client agrees that the Company is not liable for any bugs, performance issues or failure of their website software.
 
The Company endeavours to provide a website within given delivery time scales to the best of its ability. However, the Client agrees that the Company is not liable for any claims, losses, costs incurred or compensation due to any failure to carry out services within a given delivery time scale.
 
The Client agrees that the Company is not liable for any failure to carry out services for reasons beyond its control, including but not limited to acts of God, telecommunication problems, software failure, hardware failure, third party interference, Government, emergency on a major scale or any social disturbance of extreme nature such as industrial strike, riot, terrorism and war or any act or omission of any third party services.
 
The Company is not liable for any consequences or financial losses such as, but not limited to, loss of business, profit, revenue, contract, data or potential savings, relating to services provided.
 
On handover of files from Company to Client, the Client shall assume entire responsibility in ensuring that all files are functioning correctly before use.
 
While every effort is made to make sure files are error free, the Company cannot guarantee that the display or functionality of the web design or the website will be uninterrupted or error free. If, after handover of files, errors are found in code the Company has created and the standard development platform, domain name set-up and hosting set-up are the same as when work began, then the Company can correct these errors for the Client free of charge for a period of 30 days, after acceptance of the work. After the 30-day period, the Company reserves the right to quote separately for any work involved in correcting an error.
 
If, after handover of files, errors are found in code the Company has created and the standard development platform, or the domain name set-up or hosting set-up have been changed, the Company can correct errors and reserves the right to quote separately for any additional work needed as a result of changes to the browser software, domain name set-up or hosting set-up.
 
Should the Client go into compulsory or involuntary liquidation or bankruptcy or cannot pay its debts in the normal course of business, the Company reserves the right to cancel forthwith any projects and invoice the Client for any work completed.
 
The Company shall have no liability to the Client or any third parties for any damages, including but not limited to claims, losses, lost profits, lost savings, or other incidental, consequential, or special damages arising out of the operation of or inability to operate these web pages or website, even if the Company has been advised of the possibility of such damages.
 
There are sometimes laws and taxes that affect Internet eCommerce. The Client agrees that it is their responsibility to comply with such laws and will hold harmless, protect, and defend the Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Client’s exercise of Internet eCommerce.
 
The Company may from time to time recommend to the Client that updates are needed to their site, including but not limited to new legislation compliance, software compatibility and web standards. The Company reserves the right to quote for any updates as separate work. The Client agrees that the Company is not liable for any failure to inform or implement these updates to their site. The Client agrees that it shall defend, indemnify, save and hold the Company harmless from any and all demands, liabilities, costs, losses and claims arising from omission to inform or implement these updates.
20. Electronic Commerce Law.

The Client agrees that the Client is solely responsible for compliance with federal and/or state laws regarding any electronic commerce conducted through their website and will hold harmless The Company and her subcontractors from any claim, causes of action, penalty, tax, and/or tariff arising from the Client's use of electronic commerce.

21. Confidentiality.

The Company understands that she will be working with confidential Client information and will only release this information to parties directly involved in website creation. Client authorizes Acera to release information to third parties requiring access for site creation. This includes, but is not limited to, website and email address user ids and passwords, trade information, and banking information should the Client request online shopping. Upon website completion, Client will change any banking passwords The Company has had access to. If Client chooses not to retain Acera Technologies for website maintenance, Client will change FTP, email, and any other passwords The Company has had access to. Client will hold The Company harmless should breach of security occur if Client has not changed business passwords.

22. Security.

Acera Technologies will make reasonable attempts to protect the integrity of the Client website. This includes patching any third party software, such as Content Management Systems, used on the Client’s site during initial installation. However, as no software or server is 100% safe from security breach, the Client understands that the designer can not be held accountable for any security breaches should they occur. Further, The Company is not held accountable for patching any software that has been installed to the site without The Company’s knowledge. The Client is 100% responsible for all security concerning their website.

The Company will provide information regarding the website to the Client and up one other Client’s designee (herein referred to as the “points of contact”). Should any other employee or member of the Client’s organization contact Acera Technologies regarding the website, the designer will contact one or all of the designated points of contact with the issue. Client shall notify The Company of Client’s designees in writing, and shall identify them by name, email address, and phone number. Any email requesting changes to the site or information from the site that is not from a point of contact email on file will be referred to a current point of contact. Points of contact may be changed at any time during the maintenance of the site, provided notice is made to the designer in writing from a designated contact email.

The Client will also provide an emergency contact and phone number should there be an emergency requiring input from the Client.

23. Accessibility, Usability, Cross-Platform Issues.

The Company will do their best to make sites as accessible, usable, and cross-platform as possible. Client understands that some site features will cause a website to not meet these standards 100%. The Client understands that no website will look and function identically all browsers and operating systems and that any attempt to do so is futile.

Client may or may not be informed if features or lack of features requested by the Client will negatively impact website accessibility, usability, and cross-platform use. Client agrees to indemnify and hold Acera Technologies harmless against any and all claims with regard to these matters.

24. Continuing Website Maintenance and Promotion.

No agreement for continuing website maintenance and promotion is contained in these terms. No website maintenance, website hosting, or website promotion will be performed by the Company unless the Client purchases a separate website maintenance or website promotion plan.

Utilizing Acera Technologies for service constitutes Client agreement to these terms on behalf of his or her organization or business.

25. Unauthorized Use and Program License.

The Client will indemnify The Company against all claims and expenses arising from uses for which the Client does not have rights to or authority to use. The Client will be responsible for payment of any special licensing or royalty fees resulting from the use of graphics, scripts, mods, add-ons, or third-party programs that require such payments.

26. Originality.

For all custom-designed website projects not created using a design template purchased or otherwise legally obtained for such use at the request of the Client, the following shall apply:

The Company represents that, to the best of her knowledge, the design work assigned hereunder is original and has not been previously published, or that consent to use has been obtained on an unlimited basis; that all work or portions thereof obtained through the undersigned from third parties is original or, if previously published, that consent to use has been obtained on an unlimited basis; that The Company has full authority to make this agreement; and that the work prepared by The Company does not contain any scandalous, libelous, or unlawful matter. This warranty does not extend to any uses that the Client or others may make of The Company's product that may infringe on the rights of others. CLIENT EXPRESSLY AGREES THAT IT WILL HOLD THE COMPANY HARMLESS FOR ALL LIABILITY CAUSED BY THE CLIENT'S USE OF THE COMPANY'S PRODUCT TO THE EXTENT SUCH USE INFRINGES ON THE RIGHTS OF OTHERS.

27. Acceptance of Terms.

The purchase and use of any website design service, project, add-on, or mod provided by the Company by the Client constitutes acceptance of these terms.

28. Assignment of Web Design Project.

Acera reserves the right, and the Client hereby agrees, to assign subcontractors to this Web Design Project to ensure that the terms of this agreement are met as well as timely completion.

29. Web Hosting.

The Client understands that Acera Technologies does not provide any hosting services" in connection" with this Web Design Project. Hosting Services by Acera Technologies will be considered a separate purchase even if listed on the website design invoice. Web hosting will normally have its own line item indicating its value. Hosting services require a separate contract with the hosting service of the Client's choice. The Client agrees to select a hosting service which allows Acera Technologies full access to the Client's account via FTP (File Transfer Protocol) and the hosting control panel. The Client will be solely responsible for any and all hosting service charges.

30. Legal Notice.

Notwithstanding anything to the contrary contained in this contract, neither Acera Technologies nor any of its employees or agents or subcontractors, warrants that the functions contained in the Web Design Project will be uninterrupted or error-free. The entire risk as to the quality and performance of the Web Design Project is with the Client. In no event will Acera Technologies be liable to the Client or any third party for any damages, including, but not limited to, service interruptions caused by Acts of God, the Hosting Service or any other circumstances beyond our reasonable control, any lost profits, lost savings or other incidental, consequential, punitive, or special damages arising out of the operation of or inability to operate this Web Design Project, failure of any service provider, of any telecommunications carrier, of the Internet backbone, of any Internet servers, your or your site visitor's computer or Internet software, even if Acera Technologies has been advised of the possibility of such damages.

31. The Services.

The Designer will:

  1. design and create the Website;
  2. incorporate the client-provided content, together with any purchased third-party scripts, mods, or add-ons, into the Website;
  3. keep the Client informed of the progress of the Website's development; and
  4. deliver the Website and the files comprising the Website to the Client in accordance with our Completion policies.
32. Customer Obligations.

The Customer will provide the Designer with:

  1. such co-operation as is required by the Company (acting reasonably) to enable the performance by the Company of its obligations under the Agreement; and
  2. all information and documents required by the Company (acting reasonably) in connection with the provision of the Services; and
  3. list of requested changes (if applicable) and/or error/ommision reports within 30 days of delivery.
33. Right of Refusal.

Acera Technologies reserves the right to accept or reject any project at any time for any reason whatsoever. We do not do projects for adult, pornography, gambling, or psychic services. By purchasing an item from us, The Client acknowledges this stipulation. If we receive an order for a project including but not limited to these services, the Client will be immediately issued a full refund, and The Client will consider the matter closed. We reserve the right to refuse service to anyone. Any project material that, in our judgment, is obscene or threatening is prohibited and will be rejected with or without notice.

34. Site Acceptance/Project Completion.

Website is considered to be accepted and complete the moment it is delivered to the domain chosen by the client. By viewing the website created, the client agrees that the website project as a whole has been delivered and is complete.  We offer no warranty, expressed or implied including but not limited to warranties of fitness for any particular purpose, correctness, quality, or usefulness. We assume no responsibility for errors or omissions, or for damages that may result from the use of information contained herein.

35. Indemnification.

Customer agrees that it shall defend, indemnify, save and hold Acera harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorney's fees asserted against Acera, its agents, its customers, officers, and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless Acera against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with Acera; (2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products sold to customers from Acera's server.

36. Arbitration.

By using any Acera services, you agree to submit to binding arbitration. If any disputes or claims arise against Acera or its subsidiaries, such disputes will be handled by an arbitrator of Acera's choice. An arbitrator from the American Arbitration Association or the National Arbitration Forum will be selected in the state of Michigan. Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. All decisions rendered by the arbitrator will be binding and final. The arbitrator's award is final and binding on all parties. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this Arbitration Clause. You are also responsible for any and all costs related to such arbitration.

37. Search Engine Optimization.

Acera Technologies is not responsible for the optimization of your website. The ranking of websites on search engines is controlled by the search engines alone. Our sites are designed to allow the Client to modify the browser title, meta keywords, meta descriptions, and content of the website we create. If Client requires Search Engine Optimization services, we offer a variety of SEO services that you may purchase for additional fees.

38. General Matters.

This Agreement shall be governed by the laws of the state of Michigan and shall be construed in accordance therewith.

No provision of this Agreement may be waived, except by an agreement in writing by the waiving party. A waiver of any term or provision shall not be construed as a waiver of any other provision.

This Agreement shall be binding upon the parties, their successors, and assigns.

This Agreement may be amended, altered, or revoked at any time, in whole or in part, by the written agreement of the parties hereto.

Throughout this Agreement, the singular shall include the plural, the plural shall include the singular, and the masculine and neuter shall include the feminine, wherever the context so requires.

The headings of Paragraphs are included solely for convenience of reference. If any conflict between the headings and the text of this Agreement exists, the text will control.

If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid for any reason, such invalidity shall not affect any other provision of this Agreement. On the contrary, such remaining provisions shall be fully severable, and this Agreement shall be construed and enforced as if such invalid provision had never been inserted in this Agreement.

Any notice required to be in writing under this Agreement shall either be sent by certified mail, return receipt requested, or by personal delivery, or by fax, or by email and shall be considered as received from the party delivering such notice as of the date of the signing of the return receipt in the case of certified mail or upon the date of the signing of a receipt upon delivery in the case of personal delivery.

The Client agrees to these terms on behalf of his or her organization or business. The Client represents that he/she is fully authorized to enact this agreement on behalf of the organization or business represented and that the business entity represented is bound by this agreement.

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WEBSITE HOSTING - Terms and Conditions

The use of web hosting services from Acera Technologies [hereafter referred to as "Acera" or "The Company"] constitutes agreement to these terms. You may view our Privacy Policy here.

1. Account Setup / Email on File.

We will setup your account after we have received payment and we and/or our payment partner(s) have screened the order(s) in case of fraud. It is your responsibility to provide us with an email address which is not @ the domain(s) you are signing up under. If there is ever an abuse issue or we need to contact you, the primary email address on file will be used for this purpose. It is your responsibility to ensure the email address on file is current or up to date at all times. If you have a domain name registered with Acera, it is your responsibility to ensure that the contact information for your domain account and your actual domain name(s) is correct and up-to-date. Acera is not responsible for a lapsed registration due to outdated contact information being associated with the domain. If you need to verify or change this information, you should contact our sales team via email. Providing false contact information of any kind may result in the termination of your account. In high-risk transactions, it will be necessary to provide government issued identification and possibly a scan of the credit card used for the purchase. If you fail to meet these requirements, the order may be considered fraudulent in nature and be denied.

Ownership

The credit card holder or owner of the PayPal e-mail address which is utilized for payment on the account is designated as the authorized owner of the account.

 

Transfers

Our transfers team will make every effort to help you move your site to us. However, transfers are provided as a courtesy service, and we can not make guarantees regarding the availability, possibility, or time required to complete an account transfer. Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make it extremely difficult if not impossible to migrate some or all account data. We will try our best, but in some cases, we may be unable to assist you in a transfer of data from an old host.

The free transfer services are available for 30 days from your sign up date. Transfers outside of the 30-day free period will incur a charge; please contact a member of the transfers department with specific details to receive a price quote.

 

Dedicated IP Address Allocation

Any dedicated IP order in addition to ones provided with a hosting package may be subject to IP Justification. Justification practices are subject to change to remain in conformity with policies of American Registry for Internet Numbers (ARIN). We reserve the right to deny any dedicated IP request based on insufficient justification or current IP utilization.

 

Third Party Providers

All transactions with third party providers are solely between the visitor and the individual provider. Acera is not the agent, representative, trustee or fiduciary of you or the third party provider in any transaction. Some products provided by Acera are provided under license with vendors, and the use of any such third party products will be governed by the applicable license agreement, if any, with such third party.

All discounts, promotions, and special third party offers may be subject to additional restrictions and limitations by the third party provider. All transactions with third party providers are subject to the terms and conditions under which the provider agrees with you to provide the goods or services. You should confirm the terms of any purchase and/or use of goods or services with the specific provider with whom you are dealing.

We do not make any representations or warranties regarding, and are not liable for, the quality, availability, or timeliness of goods or services provided by a third party provider. You undertake all transactions with these providers at your own risk. We do not warrant the accuracy or completeness of any information regarding third party providers.

2. Content.

All services provided by Acera may only be used for lawful purposes. The laws of the State of Michigan, the State of Texas, the State of Florida, and the United States of America apply.

The customer agrees to indemnify and hold harmless Acera from any claims resulting from the use of our services.

Use of our services to infringe upon any copyright or trademark is prohibited. This includes but is not limited to unauthorized copying of music, books, photographs, or any other copyrighted work. The offer of sale of any counterfeit merchandise of a trademark holder will result in the immediate termination of your account. Any account found to be in violation of another's copyright will be expeditiously removed, or access to the material disabled. Any account found to be in repeated violation of copyright laws will be suspended and/or terminated from our hosting. If you believe that your copyright or trademark is being infringed upon, please email support@aceratechnologies.com with the information required. A list of required information may be found below under Copyright Complaint Steps. If the request is of a licensing issue, we may require further documentation.

Using a shared account as a backup/storage device is not permitted, with the exception of one cPanel backup of the same account. Please do not take backups of your backups.

Examples of unacceptable material on all Shared and Reseller servers include:

  • Topsites
  • IRC Scripts/Bots
  • Proxy Scripts/Anonymizers
  • Pirated Software/Warez
  • Image Hosting Scripts (similar to Photobucket or Tinypic)
  • AutoSurf/PTC/PTS/PPC sites
  • IP Scanners
  • Bruteforce Programs/Scripts/Applications
  • Mail Bombers/Spam Scripts
  • Banner-Ad services (commercial banner ad rotation)
  • File Dump/Mirror Scripts (similar to Rapidshare)
  • Commercial Audio Streaming (more than one or two streams)
  • Escrow/Bank Debentures
  • High-Yield Interest Programs (HYIP) or Related Sites
  • Investment Sites (FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi, MLM/Pyramid Scheme)
  • Sale of any controlled substance without prior proof of appropriate permit(s)
  • Prime Banks Programs
  • Lottery/Gambling Sites
  • MUDs/RPGs/PBBGs
  • Hacker focused sites/archives/programs
  • Sites promoting illegal activities
  • Forums and/or websites that distribute or link to warez/pirated/illegal content
  • Bank Debentures/Bank Debenture Trading Programs
  • Fraudulent Sites (Including, but not limited to sites listed at aa419.org & escrow-fraud.com)
  • Push button mail scripts
  • Broadcast or Streaming of Live Sporting Events (UFC, NASCAR, FIFA, NFL, MLB, NBA, WWE, WWF, etc)
  • Tell A Friend Scripts
  • Anonymous or Bulk SMS Gateways
  • Bitcoin Miners
  • PayDay Loan Sites (including any site related to PayDay loans, PayDay loan affiliate programs, etc)

Acera services, including all related equipment, networks, and network devices are provided only for authorized customer use. Acera systems may be monitored for all lawful purposes, including to ensure that use is authorized, for management of the system, to facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security. During monitoring, information may be examined, recorded, copied and used for authorized purposes. Use of Acera system(s) constitutes consent to monitoring for these purposes.

Any account found connecting to a third party network or system without authorization from the third party is subject to suspension. Access to networks or systems outside of your direct control must be with expressed written consent from the third party. Acera may, at its discretion, request and require documentation to prove access to a third party network or system is authorized.

We reserve the right to refuse service to anyone. Any material that, in our judgment, is obscene, threatening, illegal, or violates our terms of service in any manner may be removed from our servers (or otherwise disabled), with or without notice.

Failure to respond to email from our abuse department within 48 hours may result in the suspension or termination of your services. All abuse issues must be dealt with via email and will have a response within 48 hours.

Sites hosted on AceraTechnologies.com's service(s) are regulated only by U.S. law. Given this fact, and pursuant to Section 230(c) of the Communications Decency Act, we do not remove allegedly defamatory material from domains hosted on our service(s). The only exception to this rule is if the material has been found to be defamatory by a court, as evidenced by a court order. AceraTechnologies.com is not in a position to investigate and validate or invalidate the veracity of individual defamation claims, which is why we rely on the legal system and courts to determine whether or not material is indeed considered defamatory. In any case in which a court order indicates material is defamatory, libelous, or slanderous in nature; we will disable access to the material. Similarly, in any case in which a US Court has placed an injunction against specified content or material; we will comply and remove or disable access to the material in question.

The language of Section 230(c) of the Communications Decency Act fundamentally states that Internet services providers like AceraTechnologies.com and many of AceraTechnologies.com's other web hosting services and brands are republishers and not the publisher of content. Our service merely provides a hosting platform and space on which to host content, and any creation or publication of content on our services is the sole responsibility of the third-party user which creates or publishes the content. Therefore, AceraTechnologies.com should not be held liable for any allegedly defamatory, offensive or harassing content published on sites hosted under AceraTechnologies.com's web hosting service(s).

If in doubt regarding the acceptability of your site or service, please contact us at abuse@aceratechnologies.com and we will be happy to assist you.

Potential harm to minors is strictly forbidden, including but not limited to child pornography or content perceived to be child pornography (Lolita):

Any site found to host child pornography or linking to child pornography will be suspended immediately without notice.

Resellers: we will suspend the site in question and will notify you so you may terminate the account. We will further monitor your activity; more than one infraction of this type may result in the immediate termination of your account.

Direct customers: Your services will be terminated with or without notice.

Violations will be reported to the appropriate law enforcement agency.

It is your responsibility to ensure that scripts/programs installed under your account are secure and permissions of directories are set properly, regardless of installation method. When at all possible, set permissions on most directories to 755 or as restrictive as possible. Users are ultimately responsible for all actions taken under their account. This includes the compromise of credentials such as user name and password. It is required that you use a secure password. If a weak password is used, your account may be suspended until you agree to use a more secure password. Audits may be done to prevent weak passwords from being used. If an audit is performed, and your password is found to be weak, we will notify you and allow time for you to change/update your password.

 

HIPAA Disclaimer

We are not “HIPAA compliant."

Users are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. Users acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. Acera.com does not control or monitor the information or data you store on or transmit through our Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”). Customers requiring secure storage of “protected health information” under HIPAA are expressly prohibited from using this Service for such purposes. Storing and permitting access to “protected health information,” as defined under HIPAA is a material violation of this Terms of Service, and grounds for immediate account termination. We do not sign “Business Associate Agreements” and you agree that Acera is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA. If you have questions about the security of your data, you should contact support@aceratechnologies.com

 

Copyright Complaint Steps

Acera Technologies requires DMCA notices to be filed via fax or letter. The complaint must include full contact information in the complaint (including phone number). We will call and verify. Email (unless digitally signed by a verified and trusted third party) is not an acceptable medium for legal complaints. Be sure your DMCA complaint is not missing one or more of the following: (a) the complaint does not contain sufficient information (b) the format of the complaint is inconsistent with the requirements of the DMCA (c) the complaint has been submitted via email without proper authentication (d) full contact information is missing. We will need you to re-submit your claim, using the proper format, including sufficient details, via postal mail or fax. Instructions on how to do so follow.

It is our policy to respond to clear notices of alleged copyright infringement. This response describes the information that should be present in these notices. It is designed to make submitting notices of alleged infringement to us as straightforward as possible while reducing the number of notices that we receive that are fraudulent or difficult to understand or verify. The form of notice specified below is consistent with the form suggested by the United States Digital Millennium Copyright Act (the text of which can be found at the U.S. Copyright Office Web Site, http://www.copyright.gov) but we will respond to notices of this form from other jurisdictions as well.

To file a notice of infringement with us, you must provide a written communication that sets forth the items specified below. Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing your copyrights. Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney.

To expedite our ability to process your request, please use the following format (including section numbers):

  1. Identify in sufficient detail the copyrighted work that you believe has been infringed upon (for example, "The copyrighted work at issue is the text that appears on http://www.thewebsite.com/tos") or other information sufficient to specify the copyrighted work being infringed (for example, "The copyrighted work at issue is ?Intellectual Property: Valuation, Exploitation, and Infringement Damages? by Gordon V. Smith, published by Wiley, ISBN #047168323X").

  2. Identify the material that you claim is infringing the copyrighted work listed in item #1 above. You must identify each web page that allegedly contains infringing material. This requires you to provide the URL for each allegedly infringing result, document, or item.
    An example:

    Infringing Web Pages:
    http://www.thewebsite.com/directory/
    http://www.thewebsite.com/something/blah.html

  3. Provide information reasonably sufficient to permit us to contact you.

  4. Provide information, if possible, sufficient to permit us to notify the owner/administrator of the allegedly infringing web page or other content (email address is preferred).

  5. Include the following statement: "I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law."

  6. Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

  7. Sign the paper.

  8. If via postal mail, send the written communication to the following address:

    Acera Technologies
    Attn: Abuse Department, DMCA Complaint
    PO Box 1095
    Gaylord, MI 49734
    United States of America

    OR fax to:
    (800) 754-7101, Attn: Abuse Department, DMCA Complaint

Regardless of whether we may be liable for such infringement under local country law or United States law, we may respond to these notices by removing or disabling access to material claimed to infringe and/or terminating users of our services. If we remove or disable access in response to such a notice, we will make a good-faith attempt to contact the owner or administrator of the affected site or content so that the owner or administrator may make a counter notification.

We may also document notices of alleged infringement on which we act. As with all legal notices, a copy of the notice may be made available to the public and sent to one or more third parties who may make it available to the public.

In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)]

If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]

If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the OSP for any damages that resulted from the improper removal of the material. [512(f)]

3. Zero Tolerance Spam Policy.

We take a zero tolerance stance against sending of unsolicited e-mail, bulk emailing, and spam. "Safe lists", purchased lists, and selling of lists will be treated as spam. Any user who sends out spam will have their account terminated with or without notice.

Please read our generalized mail policy below.

Sites advertised via SPAM (Spamvertised) may not be hosted on our servers. This provision includes, but is not limited to SPAM sent via fax, phone, postal mail, email, instant messaging, or Usenet/newsgroups. No organization or entity listed in the ROKSO may be hosted on our servers. Any account which results in our IP space being blacklisted will be immediately suspended and/or terminated.

Acera reserves the right to require changes or disable as necessary any web site, account, database, or other components that do not comply with its established policies, or to make any such modifications in an emergency at its sole discretion.

Acera reserves the right to charge the holder of the account used to send any unsolicited e-mail a clean up fee or any charges incurred for blacklist removal. This cost of the clean up fee is entirely at the discretion of Acera.

 

Mail Policy

500 Hourly Maximum Outgoing Email Limit

This policy is applicable on a per domain basis, meaning that each subdomain gets its own separate 500 outgoing emails per hour limit. This also applies to mailing lists. If a user sends over 500 emails in any hour, the emails will fail and may bounce back with an undeliverable error.

If you receive a bounceback indicating that your email has been flagged as spam due to exceeding the 500 email per hour limit, wait until the next hour to continue sending emails. If the problem does not go away, please contact us.

Each Connecting IP is Limited to 30 POP Checks per Hour

Users who attempt to go over the 30 check limit will likely get a password error indicating that the login is incorrect. The login error will subside within an hour and the email check will automatically unlock. The best way to prevent this occurrence is to disable email settings that automatically send and receive or set the email check to a higher time interval, such as checking once every 10 minutes.

Mailing Lists Over 900 Email Addresses Only Allowed During Off Peak Times

Any mailing list containing over 900 email addresses is only allowed to be sent during off-peak hours to prevent high server loads. Acera Technologies defines off-peak times as all day Saturday and Sunday, and 1AM - 8AM Eastern Standard Time, Monday through Friday.

Any mailing list larger than 5,000 email addresses is not allowed. This means that users cannot send 12,000 emails a day (500 emails an hour x 24 hour period). Please note that dividing one large list into smaller lists to get below this limit is not allowed. Please use an alternate sending solution.

CAN-SPAM Rules

All online businesses that use email marketing must follow and understand all of the CAN-SPAM rules listed below:

  • Message must be identifiable as an advertisement
  • Message must include an unsubscribe mechanism
  • Message must include a valid physical postal address.

Note: Deceptive subject lines and false headers are outlawed and taken very seriously. You will be held responsible if anyone sends emails on your behalf.

Mailing Lists Rules

1. Any time you're sending a message no matter how large your e-mail list is you must throttle it. We recommend you throttle it to at the very least sending 1 email every 8 seconds. (Sending 1 every 8 seconds would send 450 emails within 1 hour, keeping you below the 500 outgoing email limit.) If the mailing list software you're using does not allow you to throttle you must switch to an application or script that will.

IMPORTANT: If you do not throttle and you try sending 500 emails, the server will try sending all 500 in 1 second which is not possible on our servers. This will cause a very high load on the server and the entire server will be sluggish, potentially affecting your sites and service, until this sending process is completed. It is our job to keep the server up and running without being sluggish or experiencing issues. Anyone who causes the server's load to go high will be suspended and the process will be terminated. If you choose not to throttle, you will most likely be suspended for crashing the server.

2. Any mailing list over 900 email addresses is only allowed to be sent to during off-peak times to prevent high server loads. Off peak times qualify as all day Saturday and Sunday, and 1AM - 8AM Eastern Standard Time, Monday through Friday.

3. The list must be a Double Opt-In list. This means a user has subscribed for a newsletter or other email marketing messages by explicitly requesting it and confirming the email address to be their own. Confirmation is usually done by responding to a notification/confirmation email sent to the email address the end user specified. The double opt-in method eliminates the chance of abuse where somebody submits someone else's email address without their knowledge and against their will. You will not be permitted to mail any mailing list that you were given or purchased. In doing so, this will also be considered spamming and may result in termination of the offending account.

Email Scripts must be able to handle and document all information from a double opt-in list. This includes processing opt-outs (via web or email) and list removal on bounce backs. All opt-outs or bounce back removals must be handled in a timely manner, and outbound mail must be throttled to a maximum of five hundred (500) emails per hour. If your account is found to be using a script that does not meet these requirements, Acera Technologies reserves the right to suspend, terminate, or deactivate your script or account.

4. Any unsolicited e-mail being sent will result in suspension or termination of the offending account. We take a zero tolerance stance against sending of unsolicited e-mail and other forms of spam.

5. Any mailing list MUST comply with all guidelines set forth by the United States government. These can be found at:
http://www.business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business .

6. No direct SMTP mailers are allowed. An example of this would be a Darkmailer or The Bat!. Any mail should be sent through the local mail server/MTA for further delivery by the server and not done directly by scripts.

4. Payment Information.

You agree to supply appropriate payment for the services received from Acera, in advance of the time period during which such services are provided. Subject to all applicable laws, rules, and regulations, all payments will apply to the oldest invoice(s) in your billing account. You agree that until and unless you notify Acera of your desire to cancel any or all services received, those services will be billed on a recurring basis.

Cancellations must be done in writing via email. Once we receive your cancellation and have confirmed all necessary information with you via e-mail, we will inform you in writing (typically email) that your account has been canceled. If you do not hear back from us within 24-48 hours of submitting your cancellation, please contact us via our contact form. We require that cancellations of service are done through email to (a) confirm your identity, (b) confirm in writing you are prepared for all files/emails to be removed, and (c) document the request. This process reduces the likelihood of mistakes, fraudulent/malicious requests, and ensures you are aware that the files, emails, and account may be removed immediately after a cancellation request is processed.

As a client of Acera, it is your responsibility to ensure that your payment information is up to date and that all invoices are paid on time. You agree that until and unless you notify Acera of your desire to cancel any or all services received (by the proper means listed in the appropriate section of the Terms of Service), those services will be billed on a recurring basis unless otherwise stated in writing by Acera. Acera reserves the right to bill your credit card or billing information on file with us. Acera provides a 10 day grace period from the time the invoice is generated and when it must be paid. Any invoice that is outstanding for 10 days and not paid will result in a $45 late fee and/or an account suspension until account balance has been paid in full. The $45 late fee is applied in addition to whatever else is owed to Acera for services rendered. Access to the account will not be restored until payment has been received.

It is the customer's responsibility to notify our Billing department via an email after paying for a domain. Domain renewal notices and invoices are provided as a courtesy reminder and Acera cannot be held responsible for failure to renew a domain or failure to notify a customer about a domain's renewal.

Subsequently, domain renewals are billed and renewed 30 days before the renew date. It is the customer's responsibility to notify our Billing department via email for any domain registration cancellation. No refunds can be given, once a domain is renewed. All domain registrations and renewals are final.

Invoices that have been paid more than once with multiple Paypal Subscriptions can only be added as credit towards the account and cannot be refunded via PayPal.

Acera reserves the right to change the monthly payment amount and any other charges at any time.

First-month free hosting offers apply to first-time buyers only.

Monthly hosting is billed at a prorated rate for the first calendar month, with subsequent months billed on the first of the month. If the first of the month falls on a weekend or holiday, billing will be run on the first business day following the weekend or holiday.

If your payment is declined, Acera Technologies, may at its discretion, notify the Client and request updated payment information or suspend the account. If the account is suspended and payment is received within 30 days, the account may be recovered and a $45 late fee may be applied. If payment is not received within 30 days, the account may be deleted from our hosting servers.

5. Backups and Data Loss.

Your use of this service is at your sole risk. Our backup service runs once a week, overwrites any of our previous backups made, and only one week of backups are kept. This service is provided to you as a courtesy. Acera is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on Acera servers.

6. Cancellations and Refunds.

Acera reserves the right to cancel, suspend, or otherwise restrict access to the account at any time with or without notice.

Any abuse of our staff in any medium or format will result in the suspension or termination of your web hosting or web development services or any other services we provide without refund. Abuse includes coercion, foul language, yelling, pushiness, and any other behavior considered to be unprofessional. Any tactic used to manipulate a particular result will be construed as reason for cancelation of services without refund.

Exchange rate fluctuations for international payments are constant and unavoidable. All refunds are processed in U.S. dollars, and will reflect the exchange rate in effect on the date of the refund. All refunds are subject to this fluctuation and Acera is not responsible for any change in exchange rates between time of payment and time of refund.

Customers may cancel at any time via email. Acera gives you an unconditional 45-day money back guarantee on managed shared hosting for any customer who paid the first invoice with a credit card or with PayPal.

Cancellations requested after the initial 45 days for Shared accounts will go into effect on the renewal date for that particular hosting package. Unless specifically requested, the account will remain active until the period expires. If the account is eligible, any request for a refund outside of the initial 45 day period will be given on a prorated basis with any previous extended term discount withheld. Refunds are to be determined once the account has been canceled. Payments older than 60 days may require a refund via PayPal or mailed check due to our merchant account policies and procedures.

The following methods of payments are non-refundable, and refunds will be posted as credit to the hosting account:

  • Bank Wire Transfers
  • Western Union Payments
  • Checks
  • Money orders

There are no refunds on administrative fees and install fees for custom software. Any domain name purchases are non-refundable. Please note that domain refunds will only be considered if they were ordered in conjunction with a hosting package. Eligibility of said refunds will be determined at the time of cancellation.

Only first-time accounts are eligible for a refund. For example, if you've had an account with us before, canceled and signed up again, you will not be eligible for a refund or if you have opened a second account with us.

Violations of the Terms of Service will waive the refund policy.

7a. Resource Usage.

User may not:

  1. Use 25% or more of system resources for longer than 90 seconds. There are numerous activities that could cause such problems; these include CGI scripts, FTP, PHP, HTTP, etc.
  2. Run stand-alone, unattended server-side processes at any point in time on the server. This includes any and all daemons, such as IRCD.
  3. Run any type of web spider or indexer (including Google Cash / AdSpy) on shared servers.
  4. Run any software that interfaces with an IRC (Internet Relay Chat) network.
  5. Run any bit torrent application, tracker, or client. You may link to legal torrents off-site but may not host or store them on our shared servers.
  6. Participate in any file-sharing/peer-to-peer activities
  7. Run any gaming servers such as counter-strike, half-life, battlefield1942, etc.
  8. Run Cron entries with intervals of less than 15 minutes.
  9. Run any MySQL queries longer than 15 seconds. MySQL tables should be indexed appropriately.
  10. When using PHP include functions for including a local file, include the local file rather than the URL. Instead of include("http://yourdomain.com/include.php") use include("include.php")
  11. To help reduce usage, do not force HTML to handle server-side code (like PHP and SHTML).
  12. Only use https protocol when necessary; encrypting and decrypting communications is noticeably more CPU-intensive than unencrypted communications.
7b. INODES.

The use of more than 250,000 inodes on any shared account may potentially result in a warning first, and if no action is taken future suspension. Accounts found to be exceeding the 100,000 inode limit will automatically be removed from our backup system to avoid over-usage, however, databases will still be backed up. Every file (a webpage, image file, email, etc) on your account uses up 1 inode.

Sites that slightly exceed our inode limits are unlikely to be suspended; however, accounts that constantly create and delete large numbers of files on a regular basis, have hundreds of thousands of files, or cause file system damage may be flagged for review and/or suspension. The primary cause of excessive inodes seems to be due to users leaving their catchall address enabled, but never checking their primary account mailbox. Over time, tens of thousands of messages (or more) build up, eventually pushing the account past our inode limit. To disable your default mailbox, login to cPanel and choose "Mail", then "Default Address", "Set Default Address", and then type in: :fail: No such user here.

7c. Backup Limit.

Any shared account using more than 20 gigs of disk space will be removed from our off site weekly backup with the exception of Databases continuing to be backed up. All data will continue to be mirrored to a secondary drive which helps protect against data loss in the event of a drive failure.

8. Bandwidth Usage.

Hosting accounts are allowed unlimited bandwidth; however, due to server parameters, each account is allocated a monthly bandwidth allowance. Throughout any given calendar month, Acera monitors bandwidth usage and adjusts accounts accordingly. Should your account pass the allocated amount, the account is automatically suspended by the server. Should this happen, simply send an email to support@aceratechnologies.com and we will adjust the allotment. In the event you project a sudden increase in bandwidth usage, perhaps due to a new advertising or marketing campaign, please let us know 1 week in advance so that we can make the proper adjustments to your allotment. Any account using greater than 25% of a server's bandwidth resources may be required to switch to an expanded hosting plan.

9. Money back Guarantee.

Each of Acera's managed shared servers carry a 45-day unconditional money back guarantee on them. If you are not completely satisfied with our services within the first 45 days of your service, you will be given a full refund of the contract amount. This is only for monthly shared packages and does not apply to administrative fees, install fees for custom software, website development services, or domain name purchases of which no money back guarantees are made.

Acera will not activate new orders or activate new packages for customers who have an outstanding balance with Acera. For a new order to be setup or a new package to be activated, you must have a balance of $0.00 unless otherwise stated by Acera in writing.

10. Uptime Guarantee.

If your shared server has a physical downtime that is not within the 99.9% uptime you may receive one month of credit on your account. Approval of the credit is at the discretion of Acera dependent upon justification provided. Third party monitoring service reports may not be used for justification due to a variety of factors including the monitor's network capacity/transit availability. The uptime of the server is defined as the reported uptime from the operating system and the Apache Web Server which may differ from the uptime reported by other individual services. To request a credit, please visit our contact page and request the credit via our contact form providing your justification.

11. Shared Servers.

Shared accounts may not resell web hosting to other people. If you wish to resell hosting you must use a reseller account. Shared servers are not backed up. You must maintain your own backups.

12. Price Change.

The amount you pay for hosting will never increase from the date of purchase. We reserve the right to change prices listed on aceratechnologies.com, and the right to increase the amount of resources given to plans at any time.

13. Coupons/Discounts.

Discounts and coupon codes are reserved for first-time accounts *or first-time customers* only and may not be used towards the purchase of a domain registration unless otherwise specified. If you have signed up using a particular domain, you may not resign up for that domain using another coupon at a later date. Any account found in violation of these policies will be reviewed by our sales department and the appropriate invoices will be added to the account. Coupon abuse will not be tolerated and may result in the suspension or termination of the account. Coupons or discounts are only valid towards the initial purchase and do not affect the renewal or recurring price.

14. Indemnification.

Customer agrees that it shall defend, indemnify, save and hold Acera harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorney's fees asserted against Acera, its agents, its customers, officers, and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless Acera against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with Acera; (2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products sold to customers from Acera's server.

15. Arbitration.

By using any Acera services, you agree to submit to binding arbitration. If any disputes or claims arise against Acera or its subsidiaries, such disputes will be handled by an arbitrator of Acera's choice. An arbitrator from the American Arbitration Association or the National Arbitration Forum will be selected in the state of Michigan. Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. All decisions rendered by the arbitrator will be binding and final. The arbitrator's award is final and binding on all parties. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this Arbitration Clause. You are also responsible for any and all costs related to such arbitration.

16. Disclaimer.

Acera shall not be responsible for any damages your business may suffer. Acera makes no warranties of any kind, expressed or implied for services we provide. Acera disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, no deliveries, wrong delivery, and any and all service interruptions caused by Acera and its employees.

17. Disclosure to Law Enforcement.

Acera may disclose any subscriber information to law enforcement agencies without further consent or notification to the subscriber upon lawful request from such agencies. We will cooperate fully with law enforcement agencies.

18. Changes to the TOS.

Acera reserves the right to revise its policies at any time without notice.

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SEARCH ENGINE OPTIMIZATION - Terms and Conditions

The use of search engine optimization services from Acera Technologies [hereafter referred to as "Acera" or "The Company"] constitutes agreement to these terms.

1. Definitions.

To bring clarity to these terms and conditions, we are going to define some SEO terms/jargons which we have used. Our goal is to develop an agreement in plain English which is mutually understood by all the parties entering into the contract and which minimizes erroneous beliefs. However, we make no warranty/guarantee of accuracy and completeness of the SEO terms described below. Our definitions should not be considered as be all and end all of SEO terminology. For the purposes of this agreement:

  • The Client - refers to you, the individual, organization or business that is purchasing SEO services from Acera Technologies
  • The Company - "Acera Technologies" or "Acera" or "The Company" or "us" or "we" refers to the owner of this website.
  • Deliverable - It is a term used in project management to describe a tangible or intangible object produced as a result of the project that is intended to be delivered to a customer (either internal or external). A deliverable could be a report, a document, a server upgrade or any other building block of an overall project [source: http://en.wikipedia.org/wiki/Deliverable]
  • SEO –Search engine optimization (SEO) is the process of improving the volume or quality of traffic to a web site from search engines via “natural” or un-paid (“organic” or “algorithmic”) search results as opposed to search engine marketing (SEM) which deals with paid inclusion. [source: http://en.wikipedia.org/wiki/Search_engine_optimization]
  • Social Media Optimization - a set of methods which are used to generate publicity through social media.
  • Search Engines – a computer program which is used to retrieve documents from a computer network. Three popular search engines are Google, Yahoo and Bing.
  • Client’s Competitor – It is an individual or a company which is in the same exact niche as the client and is targeting same/identical keywords in same/near by geographic location(s).
  • Keyword – Keyword or keyword phrase is a search term(s) which is used to retrieve information through search engines.
  • Keyword Research – It is a practice used by search engine optimization professionals to find and research actual search terms people enter into the search engines when conducting a search.
  • Keyword Stuffing – It is considered to be an unethical search engine optimization (SEO) technique. Keyword stuffing occurs when a web page is loaded with keywords in the meta tags or in content. [source: http://en.wikipedia.org/wiki/Keyword_stuffing]
  • Keywords Cannibalization – Several web pages targeting same keyword(s)
  • URL - It is the address of the web page on the Internet.
  • URL Canonicalization – It is the process of picking the best URL when there are several choices, and it usually refers to home pages. [source: http://www.mattcutts.com/blog/seo-advice-url-canonicalization/]
  • Link Building – It is a Search Engine Optimization technique which is used to get backlinks (or votes) for a website.
  • Link Bait - Link bait is any content or feature within a website that somehow baits viewers to place links to it from other websites. Matt Cutts defines link bait as anything “interesting enough to catch people’s attention. [source: http://en.wikipedia.org/wiki/Link_bait]
  • Website Usability - It means how easy it is for visitors to use your website.
  • Website Accessibility - It means how accessible your web pages are to your visitors and search engines.
  • User Engagement - It refers to the degree to which a visitor has been positively influenced by the website and is engaged to it.
  • Conversions - Also known as goals. They can be orders, leads, downloads, page views, sign ups, traffic etc.
  • Conversion Rate - It is the percentage of visits which result in goal conversions.
  • KPI - KPI or Key Performance Indicator is used to measure how well an organization or individual is accomplishing its goals and objectives.
  • Link popularity - It is the measure of the quantity and quality of inbound links (back links) to your website.
  • Confidential Information - It includes but is not limited to, any and all fees, services, documents, recommendations, reports, e-mails, postal mail, courier or phone/skype consultation for the purpose of reporting, recommending or educating the client by Acera Technologies for carrying out search engine optimization services.
2. Representations and Warranties.

Acera Technologies agrees to provide Client with Search Engine Optimization and Reporting Services (hereinafter referred to as “SEO”) as described in this agreement for the period designated by their SEO package purchase. We are authorized to use the specific keywords and/or phrases for developing and improving the ranking of the Client’s site(s), in the search engines (Google, Yahoo, and Bing).

3. Deliverables.

Acera Technologies is committed to providing the following deliverables when purchased either in a package or individually by a client:

  1. Website Audit Report - If website audit is purchased as a separate service by the client we charge a one time fee. It provides (but it not limited to):
    1. Review of the competitiveness of the client’s industry and the targeted keywords.
    2. Review of the current ranking potential of the client’s site and back link profile analysis.
    3. Review of issues related to website usability, website credibility, websites accessibility, user engagement, legal issues and suggestions regarding how to fix them.
    4. Recommendations for avoiding/fixing negative SEO issues (keyword stuffing, duplicate contents, URL canonicalization, hidden text, hidden links, sneaky redirects, keywords cannibalization etc)
    5. Recommendations regarding content development. What type of contents and contents categories can attract additional traffic and links and can help in improving conversions (goals).
    6. Suggestions regarding link building- From where and how you can acquire/request/buy links.
    7. Review of the client’s site traffic – how visitors find your website, where they come from and how they use it. How keywords and advertising campaigns are performing. How the site is performing in comparison to hundreds of other sites in the comparable industries.
  2. Competitive Analysis Report- It provides vital information regarding competitors like who are your competitors, which keywords they are targeting, what are they doing to attract traffic and links. From where they have got their back links. We also determine the current ranking potential of your competitors in search engines and help in establishing KPIs. If Competitive Analysis is purchased as a separate service by the client we charge a one-time fee.
  3. Keyword Research Report – It provides list of keywords that can bring the highest volume of relevant traffic to the website along with their search volume. It also provides suggestions regarding how keywords should be used on site to attract additional traffic. If keyword Research is purchased as a separate service by the client we charge a one-time fee.
  4. Website Optimization – We try to fix all the issues we have identified during website audit so that the website works for the client’s business and is able to convert relevant traffic into sales or leads.
  5. On-page optimization - We modify the title tags, meta tags, contents, HTML code, naming conventions and other on-page factors of client’s website to make it relevant to search engines (Google, Yahoo, and Bing) for targeted keywords. We do keywords positioning/placement to attract additional traffic to the site.
  6. Link Building – We acquire/request/buy links from vast array of websites to improve the ranking potential of your website in search engines and to rank for targeted keyword phrases.
  7. Link Bait/Viral Content Development- We develop and promote contents (press releases, articles, blogs, link baits etc) which help in getting additional traffic and links to your site and also helps in improving the conversion rate.
  8. Social Media Optimization - We develop methods to generate publicity through social media like blogs, forums, social networking sites (facebook, linked-in, Orkut etc), meet-up groups, industry events etc.
  9. SEO Analysis – We continuously monitor the effectiveness of our SEO campaign and send you traffic and rankings reports on regular basis.
  10. SEO Training- We provide SEO training through phone/online consultation or on-site consultation (visiting client’s premises) or both. In this training, you will learn the basics of search engine optimization, how search engine works, what are Google webmaster guidelines and why they are important. How to interpret the Google analytics data, how to conduct usability test, how to attract links, traffic, and many more things. If ‘SEO Training’ is purchased as a separate service by the client, we charge a one-time fee.
4. Payment Terms.

The Total Price of a Full-Service SEO Plan would be $900.00 for the first month and $300.00 per month thereafter.
Fees for Self-Managed SEO Plan are priced on a per item basis.

Client agrees to pay us a fee as stated in “agreement.” Fee must be received prior to the start of any services provided. All payments shall be made in USD (United States Dollar) and by credit card or PayPal. Any incidental costs related to the SEO Services provided to the Client such as Pay-Per-Click advertising, social network promotion, or other third party service fees are the responsibility of the Client.

If the client decides to end the project for lack of funds, change in focus or for any other reason other than which violates any term of this agreement, then the client is required to pay for all the work Acera Technologies has done up to the time that Client notifies Acera Technologies not to continue with the project at hourly rate of $125.00. If the client doesn’t want Acera Technologies to work for any of the client’s competitor (as defined in the ’definitions’ section above) for a period of 6 months, then the client has to pay additional fees of $900.00.

5. Project Timeline.

The total time estimated for a full-service SEO plan is a minimum of 7 months but continues after the 7th month until canceled by the Client.

6. Assignment of Specific Rights.

For the purposes of receiving professional SEO services, Client agrees to provide the following:

  • Provide Acera Technologies with FTP and hosting control panel and other back-end access to the web site for uploading new web pages, and making changes on the web pages for the purpose of on-page optimization.
  • Permission to communicate directly with any third parties, e.g., your web designer, if necessary.
  • Full access to existing website traffic statistics for analysis and tracking purposes.
  • Permission to use client official email address for the purposes of requesting links (something like contact@client-company.com)
  • Client authorizes Acera Technologies to use of all client's logos, trademarks, contact information, Web site images, content etc., for use in creating informational pages and any other uses as deemed necessary by Acera for search engine optimization and social media optimization.
  • Provide access to any existing social network accounts, analytics accounts, or other webmaster tools accounts for optimization, analysis, and social media marketing purposes. Alternately, if such accounts do not currently exist, Client authorizes creation of social network accounts, analytics accounts, or other webmaster tools accounts.

    In addition, Acera Technologies requires assurances by the client to the following:

    - No other SEO company or Submission Company is working on Client Site while we are.
    - Neither client nor any other third will use any "black hat" techniques, including but not limited to exchanging links with link farms, use spamming or SEO techniques, or otherwise do any online activities that may cause Your Site's - Google search engine ranking to drop.
    - No duplicate sites, duplicate content or pages, redirects or doorway pages have been created for Client Site.
    - Client Site is not hosted with a free hosting service but on paid hosting such as for instance a shared server, VPS or dedicated server.
7. Non-Disclosure Agreement.

At any time during or subsequent to contract period, client agrees to keep in strictest confidence and trust all of the Acera Technologies confidential information to which the client has access. The client will not use or disclose the Acera Technologies confidential information without the written consent of Acera Technologies.

Client agrees not to attack/criticize Acera Technologies and any of its employees, associates, partners, or subcontractors publicly (on public forums, blogs, social networks, etc.) at any time during or subsequent to contract period. Similarly, the Client agrees not to seek for SEO advice on SEO forums, blogs, community groups, or any social media in a way which brings bad name to the Company or any of its employees, associates, partners, or subcontractors. In case of breach of non-disclosure agreement, client agrees to pay $300 per incident to Acera Technologies as damages.

Acera Technologies agrees in accordance with our Privacy Policy to never divulge your details to any third party other than law enforcement.

8. Disclaimer.

Client acknowledges the following with respect to SEO services from Acera Technologies:

  1. All fees are non-refundable.
  2. Acera Technologies has no control over the policies and ranking algorithms of search engines with respect to the type of sites and/or content that they accept now or in the future. Client's web site may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory.
  3. Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, Acera Technologies does not guarantee No.1 positions or consistent top 10 positions for any particular keyword, phrase, or search term. Acera Technologies makes no guarantee of reaching any particular search engine ranking for any specific keyword.
  4. Google has been known to hinder the rankings of new websites (or pages) until they have proven their viability to exist for more than "x" amount of time or have enough back link strength - a process known as Sandboxing. Acera Technologies assumes no liability for ranking, traffic, indexing issues related to such penalties. Consequently, the Client understands that ranking new websites is much more difficult than ranking old and established sites and he should not have unrealistic expectations about rankings, traffic, and revenues.
  5. New website may get temporary boost in ranking for some targeted keywords for few days, but then it settles down to its real place. This is known as 'new site boost effect' and it is quite common. Consequently, the Client understands that his new site has not really gotten top rankings within a month and soon it will go down to its actual position.
  6. Occasionally, search engines will drop listings for no apparent reason. Often, the listing will reappear without any additional SEO efforts.
  7. A website search engine ranking can fluctuate any day, any time because of on-going changes in the ranking algorithm, SEO efforts made by competitors, or both.
  8. Acera Technologies makes no guarantee/warranty of project timeline or added expenses (like charging additional fees, etc.) if the SEO work is destroyed either wholly or in part, either knowingly or unknowingly by any party other than Acera Technologies or without the prior consultation of Acera Technologies. SEO work is considered to be destroyed either wholly or in part if any of the following changes (including but not limited to) are made to a website by any party other than Acera Technologies or without first consulting Acera Technologies:
    1. Changes in the file(s) or folder(s) name
    2. Putting a file in a different folder or putting a folder in another folder or sub domain
    3. Making changes in the head section of a document like changing the text in the title tag, removing certain HTML tags required for site authentication.
    4. Deleting a link, folder, file, web document or sub domain.
    5. Modifying text on a web document like changing the formatting of the text or repositioning the text.
    6. Removing analytics code from the web page which is used to track website traffic.
    7. Linking out to any website without prior consultation of the Acera Technologies. Linking to “bad neighborhoods” or getting links from “link farms” can seriously damage all SEO efforts. Acera Technologies does not assume liability for the Client’s choice to link to or obtain a link from any particular website without prior consultation.
    8. Adding a file, folder, web document, widget or any functionality.
    9. Renaming URLs of existing web documents.
    10. Taking down the website or part of the website.
    11. Renaming, relocating, adding or removing any file, folder or sub domain on a web server including web documents, robots.txt, .htacess file, sitemap.xml, rss.xml, etc
    12. Changes in the site architecture
    13. Changes in the anchor text
    14. Making any changes on an optimized web page
  9. Acera Technologies makes no guarantee/warranty of project timeline or added expenses (like charging additional fees, etc.) if:
    1. The client fails to resolve Acera Technologies queries on time.
    2. Make delays in providing required access, documents, permissions or any support for Search Engine Optimization purpose
    3. Fail to make necessary changes on the website as and when advised by Acera Technologies for carrying out the Search Engine Optimization services.
    4. Failing to forward pertinent emails or postal mail messages to Acera Technologies from third party services to the Client's validated address or email address.
    5. There is a server outage for prolonged time on client's site.
    6. Acera Technologies is not responsible for the Client overwriting SEO work. The Client will be charged an additional fee for re-constructing, re-optimizing content/web pages, based on the hourly rate of $125.00 per hour.
  10. Client guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Acera Technologies for inclusion on the website above are owned by Client, or that Client has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Acera Technologies and its subcontractors from any liability or suit arising from the use of such elements.
9. When this agreement comes to an end.

This agreement comes to an end when everything specified in the agreement has been completed. For maximum results, we recommend a minimum of 7 months for the Full-Service SEO plan and suggest continuing service indefinitely either at the standard monthly rate with continued optimization or at a reduced maintenance and monitoring rate since the SEO landscape is constantly changing.

It can also end if there is a breach of contract and either party decides to cancel it. The contract can also be ended by mutual agreement of the parties involved in contract or when it becomes impossible to carry out the obligations specified in the contract like due to man-made calamities (riots, acts of terrorism, war, etc.) or natural calamities (like flood, hurricane, earthquake, volcanic eruption, etc.)

10. Governing Law and Jurisdiction.

Governing law means which country's rule of interpretation and legal remedies apply in case of any dispute arising out of the contract. Jurisdiction means the place where your dispute will be heard. This Agreement shall be governed by the laws of the United States and the State of Michigan and the parties submit to the exclusive Jurisdiction of the courts of the State of Michigan in respect of any dispute or difference between the client and Acera Technologies arising out of this Agreement. If any disputes or claims arise against Acera or its subsidiaries, such disputes will be handled by an arbitrator of Acera's choice. An arbitrator from the American Arbitration Association or the National Arbitration Forum will be selected in the state of Michigan. Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. All decisions rendered by the arbitrator will be binding and final. The arbitrator's award is final and binding on all parties. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this Arbitration Clause. You are also responsible for any and all costs related to such arbitration.

11. Work Performance Guarantee.

Acera Technologies offers a work performance guarantee on all SEO services we offer. We will perform all tasks purchased in a timely fashion (normally less than 12 months on larger packages). This does not constitute a guarantee of search engine ranking to be attained by the performance of such service.

12. Right of Refusal.

We reserve the right to accept or reject any project at any time for any reason whatsoever. We do not do SEO projects for adult/pornography/gambling/psychic services. By purchasing an item from us, client acknowledges this stipulation. If we receive an order for a project including but not limited to these services, client will be immediately issued a full refund, and client will consider the matter closed. We reserve the right to refuse service to anyone. Any project material that, in our judgment, is obscene or threatening is prohibited and will be rejected with or without notice.

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SOCIAL NETWORK MARKETING - Terms and Conditions

The use of social network marketing services from Acera Technologies [hereafter referred to as "Acera" or "The Company"] constitutes agreement to these terms.

1. Social Network Sites.

By investing in one or more of our social network marketing services, you are stating your intent for Acera Technologies to conduct a marketing campaign which involves the use of social networking sites we do not own, nor operate. You agree that by purchasing any service involving a third party social media site, that these sites have their own sets of terms which may differ from our own, and you agree it is up to you to read and understand any and all terms on those sites.

2. Third-Party Account Termination.

As a result of using our service, Client agrees that any terminations of your third-party accounts as a result of using Acera Technologies services are at Client's own risk and in no way the responsibility of Acera Technologies or any of its affiliated parties or organization. Client understands that any and all of accounts, whether paid or free, may be closed at the discretion of each third-party site. Client accepts all risk for this and Acera may not be held responsible for any terminations. While Acera takes extreme care and our methods are not considered spam, Client understands the potential for this occurrence.

3. Pricing, Currency and Exchange Rates.

All prices stated on AceraTechnologies.com are in United States Dollars (USD) and will be charged in this currency regardless of your location, situation, or current foreign exchange rates. If you are unsure of exchange rates, we recommend you locate relevant information before placing any order through our site.

4. Use of the Services.
  1. Client shall abide by all applicable state and local laws and regulations and the terms of services of all third party social media providers in connection with your use of the Social Media Sites. Client may not use the Social Media Sites to:
    • send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
    • send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights;
    • send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;
    • spoof, redirect or traffic from other websites in an effort to gain traffic;
    • violate the CAN-SPAM Act of 2003;
    • interfere with, disrupt or harm the Service or attempt to gain unauthorized access to the Service or its related systems or networks or interfere with or disrupt the data contained therein;
    • screen or database scrap or engage in any other activity for the purpose of obtaining user lists or other information;
    • upload, post, reproduce or distribute any information, software, or other material protected by copyright or any other intellectual property right without first obtaining the permission of the owner of such rights;
    • sell, distribute, disseminate or link to any sites for marketing, sales, or distribution of firearms, explosives, ammunition, tobacco products and any other products or services that you cannot legally sell and/or, if sold via your account, could cause Acera Technologies to violate any applicable law, statute or regulation; or
    • encourage, permit or enable any of your representatives, agents, employees, affiliates, customers or any other third party to do any of the foregoing.
  2. Client understands that the technical processing and transmission of the Social Network Marketing services, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. You understand that the Social Network Marketing services and software embodied within the Social Network Marketing services may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by Acera Technologies and/or third party content providers who provide content to the Social Network Marketing services. You may not attempt to override or circumvent any of the usage rules embedded into the Social Network Marketing services. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Social Network Marketing services, in whole or in part, is strictly prohibited. If, in our sole discretion, we reasonably conclude that you are or may be in breach of any of the above, we reserve the right to immediately terminate your account and your access to and use of the Social Network Marketing services.
  3. Notice applicable to all social media services.
    1. Best Practices. Please note that content created and submitted via social media channels can be viewed by others through third party services and websites. It is advisable to be cautious when giving out your information online, especially your private address, location, credit card number, or telephone number. You can control who sees your content by adjusting your account settings with your third party social media provider, e.g. Facebook, Twitter, LinkedIn. Please keep in mind that any content that was posted before you changed your privacy settings is deemed to have been displayed publicly and, therefore, may be available in search or through third party sites.
    2. Rights to User Information. If you choose to gather information from users of your social media pages, e.g. Facebook, you agree that all such user information will be subject to your privacy policy and agree to prominently post such policy or a link to it at the information entry point. If you do not have a privacy policy, you agree to include and abide by the following statement instead:
      "Your contact information will be used only to provide the information you requested. We will not sell your information to third parties."
    3. Upon termination or cancellation of the Social Network Marketing services the custom social media tabs we create for you will be deleted and are not recoverable. Your basic business social media account, e.g. Facebook and any of Your Content posted there remains intact. We disclaim all liability in connection with the loss of any such content due to your subscription cancellation or termination. If you cancel the Service before the end of your current month, your cancelation will remain in effect until the end of the current subscription period and you will not be charged again.

 

5. Third Party Information and Links to Other Websites.

Client understands our Services rely on the availability of third-party sites like Facebook, LinkedIn, Twitter, etc. to provide the necessary, software, networking, storage and related technology required to provide Client with any of our social media services. These third parties may include advertisements or other links on Client's social media page and may make material changes to their websites or services that could significantly impact Client's own social media page. Moreover, Acera does not offer technical support to assist Client's use of third party vendors. Acera is therefore not responsible for, makes no representations or warranties for and disclaims all liability associated with Client's use of our social network marketing services relative to any such third party including, without limitation, data failures, network compromises or the speed or availability of the third party service.

6. Materials Provided by Client.

In connection with Client's use of the Site and the purchase of products or Social Network Marketing Services made available through the Site, Client may provide Acera with text, images, photographs, graphics, sound, video and other information for inclusion ("User Content"). The client may also have the ability to view, post, publish, share, store or manage User Content via the Site or the Social Media Services. All such comments and postings are public, not private, communications.

Client warrants and represents that they have all necessary right to provide User Content and that it does not violate the intellectual property rights or any other rights of any third party. Client grants us a worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display User Content in order to provide products and Social Network Marketing Services to Client or in connection with Client's use of our website or third-party social media sites.

Although Acera is not obligated to pre-screen User Content, we reserve the right to do so or to refuse or remove any of User Content that, in our sole discretion, violates these Terms of Use or is otherwise objectionable.

Client agrees to backup all of your User Content so that you can access and use it when needed. Acera Technologies does not warrant that it backs-up User Content, and Client agrees to accept as a risk the loss of any and all of your User Content. Client agrees to indemnify and hold Acera Technologies and its subsidiaries and affiliates and its and their officers, directors, employees, partners and agents, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of our use of User Content.

7. Fees and Payments.

By signing up for our social media services, Client is agreeing to pay us the fees indicated. Payments will be charged upon purchase and will cover Client's use of that service. All fees and payments are non-refundable unless otherwise expressly noted, even if Client's Services are suspended, terminated, or transferred prior to the end of the Services term. Acera Technologies expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications will be posted online at this Site and effective immediately without further notice to you.

Unless otherwise stated, Client may pay for Services by providing a valid credit card or via PayPal. Client acknowledges and agrees that it is their sole responsibility to modify and maintain the Account settings, including but not limited to (i) setting renewal options and (ii) ensuring that credit card information is current and valid. Failure to do so may result in the interruption or loss of Services. Acera Technologies will not be liable to Client or any third party regarding these Services loss or interruptions.

If we are unable to charge Client's credit card for the full amount owed for the Services provided or if we incur a chargeback for any fee we previously charged to Client's credit card, you acknowledge that Acera Technologies may pursue all available lawful remedies in order to obtain payment including, immediate cancellation without notice to Client of any domain names or Services registered or renewed on Client's behalf.

Acera Technologies reserves the right to charge Client reasonable additional fees for, e.g. (i) service upgrades (one-time non-recurring charge) to be invoiced to you prior to upgrade, (ii) tasks we may perform for you that are outside the normal scope of our Services, (iii) additional time and/or costs we may incur in providing our Services to you, and/or (iv) your noncompliance with this Agreement as determined by us in our sole discretion. These additional fees will be billed to the credit card or another payment method you have on file with us.

Late Fees and Penalties. Acera Technologies reserves the right to charge late fees for amounts not timely paid.

NOTE: Service availability often depends on the availability of third-party service providers over which we have no control. Credit is not provided for periods where service is unavailable or reduced due to the unavailability or interruption of those third-party services.

8. Disclaimer of Warranties.

The Site and the products and services available via the Site are provided by use on an "AS IS" and "AS AVAILABLE" basis. Therefore, Client understands that your use of the Site and the products and services is at your sole risk. To the fullest extent permissible pursuant to applicable law, Acera Technologies and its subsidiaries and affiliates and its and their officers, directors, employees, agents, partners and licensors expressly disclaim all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.

Acera Technologies and its subsidiaries and affiliates and its and their officers, directors, employees, agents, partners and licensors do not warrant or make any representation regarding the use or the results of the use of the products or services in terms of effectiveness, accuracy or reliability, that they will produce any guaranteed or stated result, meet your stated requirements or expectations or be provided in an uninterrupted, timely, secure or error-free manner.

Acera Technologies is not responsible or liable for the deletion, correction, destruction, damage, loss or failure to store or maintain any of Client Account data or Client Materials. In states where the limitations on implied warranties or the exclusion or limitation of certain damages are not allowed, some or all of the above disclaimers, exclusions or limitations may not apply to you and you may have additional rights. In such cases, Acera Technologies' liability will be limited to the fullest extent permitted by applicable law.

9. Limitation of Liability.

Acera Technologies and its subsidiaries and affiliates and its and their officers, directors, employees, agents, partners and licensors will not be liable to Client for any special, direct (with respect to Client's use of the Site only) indirect, incidental, consequential, punitive, reliance or exemplary damages (including without limitation losses or liability resulting from loss of data, loss of revenue, anticipated profits, or loss of business opportunity) that result from Client's use or inability to use the Site or the products or Services made available through the Site, even if advised of the possibility of such damages. For any product or Service we provide to Client, the aggregate liability of Acera Technologies its subsidiaries and affiliates and its and their officers, directors, employees, agents, partners and licensors, whether in contract, tort or any other theory, will not exceed the amount actually paid by Client to us for accessing the Services during the previous six months preceding the date that gave rise to the claim, or five hundred dollars ($500.00), whichever is less. In states where the limitation or exclusion of liability or incidental or consequential damages is not allowed, the above limitations or exclusions may not apply to you. In such cases, Acera Technologies' liability will be limited to the fullest extent permitted by applicable law.

10. Indemnification.

Client shall indemnify, defend and hold Acera Technologies, its officers, directors, employees, shareholders, agents, affiliates, licensors and subcontractors harmless from any claim, costs, losses, damages, liabilities, judgments and expenses (including reasonable attorneys fees), arising out of or in connection with any claim, action or proceeding (collectively, "Claims") arising out of or related to any act or omission by Client in using the Site or any product or Service ordered via the Site including but not limited to Client violation of the Agreements or policies found on the Site or infringement of any third party proprietary rights by Client.

11. Jurisdiction and Governing Law.

Unless otherwise noted in any applicable Agreement, this Agreement, the Services and all matters arising out of or relating thereto will be governed by the laws of the State of Michigan without regard to its conflict or choice of law provisions. Any legal action or proceeding relating to this agreement or the provision of the products or services offered via the Site will be brought in the state or federal courts located in Michigan. You hereby submit to the jurisdiction of and agree that venue is proper in those courts in any such legal action or proceeding.

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MERCHANT ACCOUNTS - Terms and Conditions

The use of merchant account services from Acera Technologies [hereafter referred to as "Acera" or "The Company"] constitutes agreement to these terms.

1. Agent Status and Indemnification.

Client understands that with regard to Merchant Account services, Acera Technologies serves as an agent for a third party merchant service provider. Acera serves as an intermediary between Client and provider during the application process. Services are provided by third party provider and rejection or acceptance of the Client merchant is at the discretion of that third party provider. Client shall indemnify, defend and hold Acera Technologies, its officers, directors, employees, shareholders, agents, affiliates, licensors and subcontractors harmless from any claim, costs, losses, damages, liabilities, judgments and expenses (including reasonable attorneys fees), arising out of or in connection with any claim, action or proceeding (collectively, "Claims") arising out of or related to any act or omission by Client with regard to such Merchant Processing services.

2. Merchant Fees.

Each client is responsible for paying for all of his or her fees associated with the operation of their merchant account to the processing bank on a monthly basis including a $10.00 per month service fee, $10.00 gateway fee (if applicable), $25.00 monthly minimum, 2.40 % + .35 cent transaction fee and any applicable taxes. All fees are listed on the physical merchant application that the Client is required to sign and return to Acera for submission to the merchant processor.

*Rates listed are for Master Card and Visa only, American Express and Discover are handled separately and charge their own fees based on usage.

3. Restricted and Prohibited Merchant Types.

The following business types are Prohibited by the merchant processor and Acera Technologies will not attempt to submit a merchant processing application if Client's business appears on this list:

  • Adult Sexually Oriented Materials
  • Adult Book Stores
  • Adult Telephone Conversations
  • Companion Services
  • Dating Services
  • Massage Parlors
  • Topless Bars
  • Home Based Parties
  • Air/Water Purification Systems – MLM Business Opportunities
  • Airlines/Travel Agencies (other than services fees under $50.00)
  • Attorneys/Law Firms engaged principally in the practice of Bankruptcy Law
  • Auto Rentals
  • Auto Warranties
  • Business/Investment Opportunities/Business Consulting
  • Businesses with Door to Door Sales (examples: vacuums)
  • Buying/Shopping/Discount Club
  • Cellular/Telephone airtime
  • Charter/Tours
  • Check Cashing Services
  • Collection Agencies/Firms Involved in Recovering Past Due Receivables
  • Computer Bulletin Boards
  • Consulting Firms or Companies Operating for "Get Rich Schemes"
  • Credit Repair/Restoration
  • Cruise Lines
  • Currency Exchanges
  • Direct Outbound Telemarketing
  • Drug Paraphernalia
  • Escort Services
  • Firearms, Alcohol, Tobacco sales – MOTO/Internet
  • Free Trials, consumer pays for shipping but is later billed for product
  • Future Services exceeding 1 Year
  • Gambling - Racing, Car, Dog, Horse, Sports
  • Hair Restoration Products, wigs and hair replacement treatments - MOTO/Internet
  • Immigration Consulting/Non-Attorney
  • Import/Export Businesses
  • iPhone Applications
  • Knockoff Merchandise – MOTO/Internet
  • Lead Generator
  • Liquidators - furniture/wholesale
  • Lotteries
  • MLM Business Opportunities/Multi-Level Marketing Distributions
  • Marijuana Dispensaries
  • Medical Discount Benefit Cards
  • Modeling Agency
  • Mortgage Reduction/Modification Services
  • Mortgage/Finance Payments/Grant Funding
  • Online Auctions
  • Online PC/Technical Support
  • Pay Per Click Web Merchants "Parked Websites"
  • Payday Loans
  • Pharmacies - non-face-to-face transactions
  • Products with Unreasonable Guarantees
  • e-cigarettes
  • magnetic bracelets
  • Psychic Services - retail and moto
  • Pseudo-Pharmaceuticals
  • Anti-Aging Pills
  • Sex Nutrients
  • Herbal supplements
  • Diet Pills
  • Acai Berry
  • Pyramids/Ponzi Schemes
  • Real Estate Wholesale Consultants
  • Sports Forecasting
  • Telemarketing Companies with the Following Method of Operation: Free Gift/Prize or Sweepstakes if Product or Services is Purchased, Chain Letters, Sales of any Product or Services for a 3rd Party, Sale of any Product or Services which are Prohibited or Restricted, Solicitation with Outbound Telephone Calls or Faxes
  • Time Shares
  • Ticket Brokers
  • Used Car Sales
  • Web Templates

The following business types are Restricted by the merchant processor. Acera Technologies will submit a merchant processing application for Clients with businesses of these types; however, approval may have additional restrictions or requirements from the merchant processor:

  • Computer Hardware – good credit only, been in business for 2 years, currently processing, retail store
  • Consumer Electronic Products – good credit only, been in business for 2 years, currently processing
  • Internet Auctions – advertising fees only
  • Massage Therapist - require therapist license
  • Mortgage services – application and processing fees only
  • Online Malls – hosting/advertising fees only (max ticket is $150)
  • Self Help, Self -Published Books/Publications/Tapes (max ticket is $50, required initial reserve with approval)
  • Travel Agencies – service fees only (max ticket is $50)
  • Web Advertising
  • Gun Shop – 100% swiped/good credit only
4. Full Merchant Agreement.

Following is the full Merchant Credit Card Processing Agreement from the third party merchant services provider for which Acera Technologies is an agent:

Merchant Credit Card Processing Agreement


PRELIMINARY MATTERS

Parties to this Merchant Credit Card Processing Agreement (this “Agreement”):

“Merchant” - The Merchant identified on the Merchant Application, as defined below.

“Guarantor(s)” - The Guarantor(s) of Merchant’s obligations under this Agreement, as set forth in the Merchant Application.

“TMS” - Total Merchant Services, Inc., an Independent Sales Organization and Merchant Services Provider of the Member, with headquarters in Woodland Hills, CA

“Global” - Global Payments Direct, Inc., a provider of electronic transaction processing services for merchants, with headquarters in Atlanta, Georgia.

“Member” - The Member Bank identified on the Merchant Application, and collectively with TMS and Global, the “Servicers”.

ACCEPTANCE OF TERMS BY MERCHANT:

Merchant has completed and submitted to Servicers an application for services that provides information about Merchant’s business and processing needs (the “Merchant Application”). As part of the Merchant Application, Merchant has certified that it has read this Agreement, and understands and agrees that the terms of this Agreement will be binding upon it if and when Servicers approve the Merchant Application to receive requested services. A MERCHANT’S SUBMISSION OF A TRANSACTION TO SERVICERS SHALL CONSTITUTE RATIFICATION OF EACH AND ALL OF MERCHANT’S OBLIGATIONS UNDER THIS AGREEMENT.

ARTICLE I. GENERAL PROVISIONS.

The General Provisions set out in Article I govern the relationship between Servicers and Merchant for all services provided by or through Servicers. The subsequent sections of this Agreement define the terms of service for different service offerings of the Servicers and shall apply to Merchant at such time that Merchant commences receiving such services.

1.01 Compliance with Rules and Servicers Guidelines.

Merchant agrees to comply with and be subject to all Rules of MasterCard International, Inc., (“MasterCard”), Visa International (“VISA”), JCB, International (“JCB”), Discover Network (“Discover Network”), American Express (“AMEX”) and the National Automated Clearing House Association (“NACHA”), as they may exist from time to time and as applicable to Merchant’s activities under this Agreement. Merchant also agrees to comply with all guidelines, policies and procedures for services provided to Merchant by Servicers from time to time. Additional information and links to locations where Merchant can see or obtain copies of the Rules are located at http://www.merchantsupport.info/disclosure/TMS.html.

MERCHANT UNDERSTANDS AND ACKNOWLEDGES THAT DISCOVER, AMEX, JCB, NACHA AND OTHER SERVICES ARE NOT PROVIDED TO IT BY MEMBER BANK, BUT ARE INSTEAD PROVIDED BY TMS, GLOBAL, AND/OR THIRD PARTIES. FOR PIN DEBIT TRANSACTIONS, SUCH THIRD PARTIES MAY INCLUDE SPONSORING OR ACQUIRING BANKS THAT ARE NOT RELATED TO MEMBER BANK.

THE PROVISIONS OF THIS AGREEMENT REGARDING DISCOVER NETWORK CARD TRANSACTIONS, AMEX CARD TRANSACTIONS, JCB CARD TRANSACTIONS, NACHA TRANSACTIONS, OR ANY OTHER NON-BANK CARD TRANSACTIONS CONSTITUTE AN AGREEMENT SOLELY BETWEEN MERCHANT, TMS, GLOBAL AND THIRD PARTIES. MEMBER BANK IS NOT A PARTY TO THIS AGREEMENT INSOFAR AS IT RELATES TO SUCH TRANSACTIONS.

1.02 Enforcement of Servicer Rights.

To the maximum degree permitted by law and by the Rules of MasterCard, VISA, JCB, Discover Network, and NACHA, it is the intention of the parties that the rights of Servicers set forth in this Agreement, or arising from this Agreement, may be exercised solely by TMS or Global, or its or their authorized designees

1.03 Warranties of Merchant.

Merchant hereby represents and warrants to Servicers at the time of submission of the Merchant Application and during the term of this Agreement that:

(a) All information contained in the Merchant Application or any other documents delivered to or on behalf of Servicers in connection therewith is true and complete and accurately reflects Merchant’s business, financial condition and principal partners, owners or officers.

(b) Merchant is duly organized and in good standing under the laws of the jurisdiction of its organization and is duly qualified to conduct business in each jurisdiction where failure to do so would have a material adverse effect on its business.

(c) Merchant has the power to execute, deliver and perform this Agreement, and this Agreement is duly authorized, constitutes a valid and binding obligation of Merchant and will not violate any provisions of law, or conflict with any other agreement to which Merchant is subject.

(d) Merchant has all licenses, if any, required to conduct its business and is qualified to do business in every jurisdiction where it is required to do so.

(e) There is no action, suit or proceeding at law or in equity now pending or to Merchant’s knowledge, threatened by or against or affecting Merchant which would substantially impair its right to carry on its business as now conducted or adversely affect its financial condition or operations.

(f) Unless Merchant notifies Servicers in writing (either on the Merchant Application or otherwise) and is approved by Servicers, no other processing relationship for any of the services offered by Servicers under this Agreement may exist between Merchant and another Card processing institution, for any business owned or operated by Merchant.

(g) No owner, officer, director, employee or agent of Merchant is a current or former official in the executive, legislative, administrative, military, or judicial branch of any government (elected or not); or an official of a political party; or an executive of a government-owned commercial enterprise; or a family member of any of the foregoing officials; or a close personal or professional associate of any foregoing officials.

1.04 Notifications Regarding Changes in Merchant’s Business or Application Information.

(a) Merchant must provide Servicers with immediate notice of its intent to: (i) transfer or sell any substantial part of its total assets, or liquidate; (ii) change the basic nature of its business, including selling any products or services not related to its current business; (iii) change ownership or transfer control of its business; (iv) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a party to this Agreement assumes any interest in Merchant’s business; or (v) alter in any way Merchant’s approved monthly volume and average ticket.

(b) Merchant must immediately notify Servicers of any Bankruptcy, receivership, insolvency, levy or similar action initiated by or against Merchant or any of its principals. Merchant will include Servicers on the list of creditors filed with the applicable Bankruptcy Court in connection with any such Bankruptcy, whether or not a claim exists at the time of filing.

(c) Merchant must notify Servicers in writing of any changes to the information in the Merchant Application, including but not limited to a material change to Merchant’s financial condition (within three (3) days of such occurrence), any additional location or new business, a change in the business location or contact information, both physical and email addresses, the identity of principals and/or owners, the form of business organization, type of goods and services provided, and how sales are completed. Merchant must also notify Servicers in writing if Merchant sells or closes its business. Except for a change to the financial condition, all such notices must be received by Servicers seven (7) days before the change. Merchant will also provide updated information to Servicers upon request.

(d) Merchant must immediately notify Servicers in writing if Merchant is threatened with or becomes a party to any action, suit or proceeding at law or in equity that could substantially impair its right to carry on its business or adversely affect its financial condition or operations.

(e) Merchant must provide separate notification regarding changes to service providers used by Merchant in connection with Servicer-provided services, including but not limited to AMEX, and equipment leasing companies.

1.05 Credit and Financial Inquiries: Anti-Money Laundering; Additional Locations: Inspections.

(a) Merchant authorizes Servicers to make, at the time of submission of the Merchant Application and at any later time during which Merchant owes any obligation to Servicers, any credit inquiries which, in their discretion, may be necessary or prudent. Such inquiries shall include, but are not limited to, a credit check of the business including its proprietor, principal owners or officers. If requested to do so by Servicers, Merchant shall provide the written consent of any person for which an inquiry has been or is to be made if such person has not executed this Agreement and will provide any financial statements, income tax and business tax returns and other financial information as Servicers may consider necessary to perform initial or periodic reviews of Merchant’s financial stability and business practices.

(b) Merchant agrees to permit Servicers at any time from time to time, to inspect locations to confirm that Merchant has adhered or is adhering to the terms of this Agreement and is maintaining the proper facilities, equipment, inventory, records, and licenses or permits (where necessary) to conduct its business. However, nothing in this paragraph shall be deemed to waive Merchant’s obligation to comply in all respects with the terms of this Agreement.

(c) Merchant may process Card transactions only at locations and websites approved by Servicers. Additional locations may be added, subject to Servicers’ approval. Either Merchant or Servicers may delete any location by providing notice as provided in this Agreement.

(d) Representatives of Servicers may, during normal business hours, inspect, audit and make copies of Merchant’s books, accounts, records, and files pertaining to any Card transactions processed by or through Servicers.

1.06 Guarantor Notifications and Authorizations.

The decision of Servicers to enter into and continue processing Card transactions for Merchant is based on the financial condition of Guarantor and the ability of Guarantor to guarantee Merchant’s obligations under this Agreement. Accordingly, Guarantor must provide Servicers with information regarding changes in his or her contact information and financial circumstances. Guarantor agrees to take the actions required under Section 1.04(b) through (e). Guarantor also authorizes Servicers to make ongoing inquiries about Guarantor as detailed in Section 1.5. For purposes of understanding Guarantors obligations and authorizations under this Section, Guarantor will apply the provisions of Section 1.04 and 1.05 to Guarantor by substituting the term Guarantor in place of Merchant where it appears in such sections.

1.07 Account.

(a) Merchant will establish and maintain an Account at a depository institution approved by Servicers. Merchant will maintain sufficient funds in the Account to satisfy all obligations, including the fees, Chargebacks and returns contemplated by this Agreement. Merchant irrevocably authorizes Servicers to debit the Account for fees, Chargebacks, returns, fines and any other penalties or amounts owed under this Agreement. In the event the Account lacks sufficient funds, Merchant and Guarantors authorize Servicers, without notice, to debit any bank account in their name(s) or the name of any affiliated entity. Merchant must obtain prior consent from Servicers to change the Account. If Merchant does not obtain such consent, Servicers may immediately terminate this Agreement and may take other action necessary to protect their interests.

(b) Servicers will settle all valid Card transactions to the Account subject to the terms of this Agreement. Merchant authorizes Servicers to initiate reversal or adjustment entries and initiate or suspend such entries.

(c) Servicers, in their sole discretion, shall grant Merchant provisional credit for Card transaction amounts, subject to receipt of final payment by Servicers and subject to all Chargebacks and other amounts owed to Servicers under this Agreement.

(d) Merchant authorizes Servicers to initiate debit/credit entries to the Account, as the Account may be changed from time to time and to any other account maintained by Merchant at any institution, all in accordance with this Agreement. In the event Merchant changes the Account, this authorization will apply to the new Account. This authorization will be effective until both: (i) Servicers have received written notification from Merchant terminating this authorization, and (ii) all obligations of Merchant to Servicers have been paid in full. Merchant may be required to provide to Servicers with avoided Account check and/or fill in the required Account numbers on Merchant Application.

(e) If the Account is closed or is otherwise unavailable to Servicers for ACH debit, Merchant consents to Servicers locating additional deposit accounts or assets by using any means legally available. In this event, Merchant waives all rights to their privacy in favor of Servicers until such time as all unpaid Chargebacks and fees owed to Servicers have been paid in full.

1.08 Reserve Account.

In addition to any other rights granted to Servicers under this Agreement, Merchant hereby authorizes Servicers to establish a Reserve Account, with or without prior notice to Merchant, at any time prior to, during or after termination of this Agreement, to ensure the recovery of any liabilities owed them or reasonably anticipated by Servicers in their sole discretion to be owed by Merchant pursuant to this Agreement. Servicers may also require as a condition of providing continued services, that Merchant fund and maintain a Reserve Account with Servicers as security against any costs, losses or expenses incurred by Servicers in connection with the provision of services to Merchant. Merchant’s obligation to maintain any Reserve Account shall survive the termination of this Agreement by a period of two hundred seventy (270) days (or longer depending on Merchant’s product and business practices) during which time Servicers’ right, title and interest therein shall continue. In addition, Merchant further agrees:

(a) Liabilities to be paid from the Reserve Account include, but are not limited to, those arising out of actual and/or potential post-termination Chargebacks, as well as any and all post-termination fees, charges and expenses due or anticipated to be due Servicers from Merchant.

(b) The Reserve Account shall be in such amount Servicers deem reasonable under the circumstances. The Reserve Account may be funded and/or replenished by Servicers by withholding from Merchant’s Card transaction proceeds, and/or withholding or withdrawing from, or freezing all or any part of, the Account and/or any other deposit accounts maintained by Merchant wherever found by any means legally available. Unless Servicers agree otherwise in writing with Merchant, the Reserve Account shall not bear interest.

(c) Servicers may enforce their right, title and interest in the Reserve Account without notice or demand being first made to Merchant. Servicers right to sums owed them by Merchant pursuant to this Agreement shall in no way be limited by the balance or existence of the Reserve Account. Servicers’ right, title, and interest with respect to the Reserve Account shall survive the termination of this Agreement.

(d) Servicers may exercise their rights under this Agreement to collect any amounts due to Servicers including, without limitation, rights of set-off and recoupment. Merchant shall have no right to withdraw funds or debit the Reserve Account.

(e) It is stipulated and agreed that the funds placed in the Reserve Account are trust fund monies legally and exclusively held for the benefit of Servicers. In the event of Bankruptcy proceedings, Servicers may exercise their rights under this Agreement to debit the Reserve Account for amounts due Servicers regardless of the pre-petition or post-petition nature of the amount due Servicers. In the event of a Bankruptcy proceeding, Merchant also agrees that it will not contest any motion for relief from the automatic stay which Servicers may file to debit the Reserve Account.

(f) Servicers may retain funds in the Reserve Account for as long as Merchant may be liable to make payments under this Agreement. Funds are typically retained in the Reserve Account for a minimum of two hundred seventy (270) days from the date of the oldest Card transaction in question or the date of termination, whichever is longer, and may be retained longer depending on the nature of Merchant’s Card transaction activity. Servicers will have sole control of the Reserve Account. In the event of a Bankruptcy, proceeding Servicers do not consent to the assumption of this Agreement. Nevertheless, if this Agreement is assumed, Merchant agrees that in order to establish assurance of future performance within the meaning of 11 U.S.C. Sec 365, as amended from time to time, Merchant must establish a Reserve Account in an amount satisfactory to Servicers.

1.09 Recoupment.

Merchant acknowledges and agrees, notwithstanding anything set forth in this Agreement to the contrary, that any and all credits provided to Merchant by Servicers for collected Sales Drafts under this Agreement are provisional and cannot be equitably finalized until the respective periods permitted for Chargebacks, returns, fees, fines, penalties and other adjustments to be assessed or implemented have all expired under this Agreement. These Chargebacks, returns, fees, fines, penalties and other adjustments are an integral part of the credit to be given to Merchant in respect of such Sales Draft. To the extent that any Chargeback, return, fee, penalty, fine, or other adjustment is assessed or implemented, Servicers may exercise their right of recoupment with regard to the credit provisionally paid for the respective Sales Draft. In the absence of this remedy, Merchant acknowledges that it would be overpaid for the respective Sales Draft, and such overpayment shall be held in trust by Merchant as the legal and equitable property of the Servicers. Merchant also acknowledges that, in order for rights and obligations of the parties to be fairly and equitably administered, the various Sales Drafts presented by Merchant to Servicers shall constitute a single, integrated transaction, and not a series of separate or discrete transactions.

1.10 Security Interest.

To secure Merchant’s and Guarantor’s respective performance under this Agreement, including without limitation Merchant’s obligations arising out of Chargebacks or returns, Merchant and Guarantor each hereby grants to Servicers, pursuant to the Uniform Commercial Code of the State of California, as amended from time to time , a security interest in all of Merchant’s and Guarantor’s personal assets and property, including but not limited to the following assets and property: (a) the electronic terminal, printer, imprinter and imprinter plate; (b) all Sales Drafts, ACH deposits, credit drafts, and in all Accounts and Reserve Accounts, regardless of source, wherever found, standing in the name of Merchant and/or Guarantor, whether established or designated and maintained pursuant to this Agreement or not; and (c) the proceeds and products of such assets and property. In the event of Merchant’s default under this Agreement, Merchant and Guarantor(s) stipulate: (i) that all personal accounts standing in their names shall be subject to this Agreement and ACH debit; and (ii) all ACH debits, whether made against the Account or Guarantor’s personal account, shall bear a commercial account code designation (CCD) for purposes of electronic collection via the ACH system, and (iii) Merchant and/or Guarantor irrevocably consent to Servicers using any means available to locate such deposit accounts until such time as all amounts due have been paid. Servicers may enforce this security interest as applicable by:

(a) Making an immediate debit/charge via the ACH system to any deposit account standing in the name or names of Merchant and/or Guarantor, without notice or demand of any kind; and/or interrupting the electronic transmission of funds to any account through the Automated Clearing House (ACH) system;

(b) Freezing the entire Account and/or Reserve Account, without notice or demand of any kind, upon Servicers determination that Merchant has breached any term of this Agreement;

(c) Taking possession of any or all of Merchant’s or Guarantor’s personal assets or property;

(d) Placing a receiver within Merchant’s place of business without notice or bond to intercept and collect all income derived from Merchant’s operations until such time as any indebtedness owed to Servicers arising under this Agreement has been satisfied in full;

(e) By obtaining either a writ of attachment or a writ of possession without bond pertaining to Merchant’s and/or Guarantor’s personal assets or property.

Merchant and Guarantor hereby irrevocably authorize the Servicers at any time and from time to time to file any financing statements and amendments thereto, in any jurisdiction required for the proper perfection of the Servicers’ security interest, and shall provide any statement or notice that Servicers determine to be necessary to preserve and protect this security interest. Merchant’s and/or Guarantor’s granting of this security interest in no way limits Merchant’s and Guarantor’s liabilities to Servicers under this Agreement.

1.11 Fiduciary Relationship.

Whenever Merchant and/or Guarantor has a deposit held with Servicers that arose from or is subject to this Agreement, to which, pursuant to this Agreement, Merchant, and/or Guarantor, is not entitled, Merchant’s and Guarantor’s entitlement to such deposit shall be as a fiduciary of Servicers until any claim by Servicers against Merchant and Guarantor has been resolved. Merchant and Guarantor each agrees that its failure to repay, within five (5) calendar days of notification by Servicers, funds to which Merchant or Guarantor is not entitled to, shall result in a presumption that Merchant and/or Guarantor intends to misappropriate such funds. Merchant and Guarantor, each further agrees that in the event Servicers seek to enforce their rights herein in a court of competent jurisdiction, that any receivership, temporary restraining order, preliminary injunction, writ of attachment or writ of possession may be issued against Merchant and/or Guarantor without bond.

1.12 Guarantors.

As a primary inducement to Servicers to enter into this Agreement with Merchant, Guarantor, whether by signing the Merchant Application or by acknowledging consent by electronic means, jointly and severally (where more than one Guarantor), and unconditionally and irrevocably, guarantee the continuing full and faithful performance and payment by Merchant of each of its duties and obligations to Servicers pursuant to this Agreement, as it now exists or is amended from time to time, with or without notice. Guarantor understands further that Servicers may proceed directly against Guarantor without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Servicers. This guaranty will not be discharged or affected by the death of the Guarantor, will bind all heirs, administrators, representatives and assigns and may be enforced by or for the benefit of any successor of Servicers. Guarantor understands that the inducement to Servicers to enter into this Agreement is the consideration for this guaranty and that this guaranty remains in full force and effect even if the Guarantor receives no additional benefit from the guaranty.

1.13 Payment of Fees and Other Amounts Owed.

Merchant shall pay to Servicers the fees and charges set forth on the Merchant Application, any separate schedule of fees and the fee provisions of this Agreement. Merchant agrees that Servicers may collect their fees and other amounts owed under this Agreement by netting against the proceeds of Merchant's processing activity. The Account will be debited through ACH for such amounts and for any other fees, charges or adjustments incurred by Merchant and associated with the services provided under this Agreement. Merchant is obligated to pay all taxes and other charges imposed by any governmental authority on the services provided under this Agreement. Servicers have the right to change fees as set forth in this Agreement.

1.14 General Fees.

If fees are not listed on the Merchant Application or separate schedule of fees to the contrary, the following fees are applicable. Additional fees specific to each service offering are set forth in the fee sections of the Article of this Agreement defining the terms of that service offering.

Providing Any Documentation - $2.00 per page

Checking Account (DDA) Change - $20.00 per change

Business Name Change Fee - $75.00 each

Chargeback/Retrieval - $20.00 each

Return Fee - $20.00 per item

Third Party Payment Admin Fee - $150*

Voice Authorizations - $0.95 each

Voice Authorizations (w/ live operator) - $1.75 each

Referral Authorizations - $2.00 each

Annual Fee - $75.00

Compliance Program - $4.95 per month after initial 12 months

Debit Service - $5.00 per month

EBT - $10.00 per month and $0.15

Batch Deposit - $0.25 per batch deposit

ACH Reject/NSF Fee - $20.00 per ACH Reject/NSF Fee

AMEX Transactions - Fees assessed by AMEX directly**

AMEX Downgrade Fee - 0.30% for Card Not Present transactions

Discover Network Authorization fee ***

AVS Response Fees - $0.10 per response (automated); $2.00 per response (live)

Interchange Per Item Fee (Debit) - $0.22 each

Interchange Per Item Fee (Credit) - $0.10 each

* Servicers may charge a fee to implement legally enforceable requests for payment of Merchant funds to parties other than Merchant, such as tax levies, payments to secured parties or other legally enforceable payment requests of a similar nature.

**If no per transaction fee is specified, AMEX transactions will be subject to the same communications fee as VISA/MasterCard/Discover, specified above.

***If no Discover transition fee is specified, Discover transactions will be subject to the same communications fee as Visa/MasterCard/Discover, specified above.

Different discount rates and other fees may apply to different types of Card transactions. For example, a “Qualified Discount Rate” will be charged on certain types of Card transactions, including without limitation, swiped cards on which the full magnetic stripe has been read; a higher “Mid-Qualified Discount Rate” will be charged on other types of Card transactions, including without limitation, keyed cards at retail locations or keyed cards with valid AVS response and order number for "card not present" transactions; and a higher “Non-Qualified Discount Rate” will be charged on other types of Card transactions, including without limitation, Business, Corporate, Purchase, International, or Government cards, keyed cards where AVS is not present or missing any of the required data elements, batches not closed within one calendar day of transaction, all rewards cards as defined by the card issuers, and any Pre-Authorized sale that is not processed/captured within 7 business days.

Additional charges that may occur from time to time include chargeback fees, representment fees, and retrieval fees. A monthly minimum fee will be deducted unless Merchant has met its minimum processing volume. The standard delivery method for Monthly Statements is in an electronic, online version that will be generated each month and located at http://www.merchantsupport.info/disclosure/TMS.html. MERCHANT IS ENCOURAGED TO REVIEW THESE ADDITIONAL RATES AND FEES ON-LINE AT http://www.merchantsupport.info/disclosure/TMS.html

A Merchant is billed a transaction fee each time communication is made with the host. This fee is assigned by the agent or sales representative at the time Merchant submits its Merchant Application.

Servicers may modify all fees payable by Merchant under this Agreement, including those detailed in the Merchant Application and any separate schedule of fees, by providing notice to Merchant of changes to such fees.

1.15 Card Industry Pass-Through Fees.

If fees are not listed on the Merchant Application or separate schedule of fees to the contrary, the following fees are applicable. These pass through fees are costs incurred by Merchant as a result of accepting VISA, MasterCard, AMEX, Discover Network and JCB Card transactions. The names of the fees that will be charged on Merchant’s statement will be listed below.

VISA Assessment

MasterCard Assessment

Discover Assessment

Visa Fixed Acquirer Network Fee (VISA FANF)

MasterCard Licensing Fee

1.16 Term: Termination.

(a) This Agreement shall not become effective until the Merchant Application is approved by Servicers. Any party may terminate this Agreement or one or more services delivered under this Agreement at any time with or without cause by providing written notice to the other parties and such termination will become effective on the date specified by such notice. If Merchant terminates this Agreement, Servicers shall have thirty (30) days from the date of receipt of the notice to close Merchant's Account. All rights and obligations of the parties existing hereunder as of the effective time of termination shall survive the termination of this Agreement. If Merchant has applied for Card processing and is approved by Servicers, and if Merchant exercises its option to terminate this Agreement within three (3) years after such approval, then Merchant will pay to Servicers a termination fee in the amount set forth in the Merchant Application. If the Merchant Application references a "standard termination fee," a fee of $295.00 will apply upon Merchant’s termination of services.

(b) Servicers may terminate this Agreement immediately without prior notice if (i) they have reason to believe that fraudulent Card transactions or other activities prohibited by this Agreement are occurring at any Merchant location, (ii) such action is taken to prevent loss to Servicers or Card Issuers, (iii) Merchant appears on any Card Association's security reporting, (iv) Servicers’ merchant acceptance criteria changes, (v) Merchant breaches this Agreement, (vi) Merchant violates the rules and regulations of a Card Association, or (vi) Merchant engages in conduct that creates harm to or loss of goodwill to any Card Association. All rights and obligations of the parties existing hereunder as of the effective time of termination shall survive the termination of this Agreement. An administrative account closure fee of $500.00 will be charged to Merchant if terminated for any of the reasons set forth in subparts (i) through (iii) of this section.

(c) Merchant will be assessed a software recovery fee if it: (i) received a free promotional copy of any third party software (such as QuickBooks or Quicken) upon entering into this Agreement, and (ii) terminated this Agreement, in its sole discretion, within two years of acceptance by Servicers. Such software recovery fee shall be determined by Servicers in their sole discretion, but will be no greater than the then current direct, retail price charged to the public to purchase such software. This software recovery fee shall be in addition to any termination fee set forth in this Agreement.

(d) If any case or proceeding is commenced by or against Merchant under any federal or state law dealing with insolvency, Bankruptcy, receivership or other debt relief, this Agreement shall simultaneously therewith automatically terminate, and any amounts due to Servicers under this Agreement shall become immediately due and payable, without the necessity of any notice, declaration or other act by Servicers. Notwithstanding such termination, Servicers, in their sole discretion, may determine that consent to Merchant's subsequent assumption of this Agreement is in Servicers’ best interests. In such event, the assumption will be made under terms and conditions that are acceptable to Servicers and comply with the applicable federal or state laws governing such assumption.

(e) Merchant acknowledges and agrees that a Card Association can limit or terminate processing in its sole discretion and at any time.

1.17 Effect of Termination.

Without limiting the provisions of Section 1.53 below, all of Merchant’s obligations under this Agreement which arise or are incurred prior to the effective date of termination shall survive the expiration or termination of this Agreement.

1.18 Third Parties.

(a) Merchant may be using special products, services or software provided by a third party to assist Merchant in processing Card transactions, including Authorizations and settlements, or accounting functions. Merchant is responsible for ensuring compliance with the requirements of any third party in using its products, services or software. This includes making sure Merchant has and complies with any software updates and ensuring that such software satisfies all security standards required under the Rules (including PA DSS and PCI DSS), as set forth more fully below. Servicers have no responsibility for any Card transaction until that point in time Servicers receive data about the Card transaction.

(b) Merchant will notify Servicers prior to the use of any electronic Authorization or data capture terminal or software provided by any entity other than Servicers or its authorized designee ("third party terminals") to process Card transactions. If Merchant elects to use such third party terminals, Merchant agrees that the third party provider of the terminal is Merchant's agent and Merchant is liable for the acts and omission of its agent and the terminals for failing to comply with the Rules, this Agreement and any applicable federal and state law.

(c) Servicers may provide Merchant with reference links to websites operated by third parties ("Third Party Websites"). These links are provided as a convenience only. Such Third Party Websites are not under the control of Servicers. Servicers are not responsible for the content of any Third Party Website or any link contained in a Third Party Website. Servicers do not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, and the inclusion of any link is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by Servicers of any information contained in any Third Party Website. Access to any Third Party Website is at Merchant's own risk, and Merchant acknowledges and understands that linked Third Party Websites may contain terms and privacy policies that are different from those of Servicers. Servicers are not responsible for such provisions, and expressly disclaim any liability for them.

1.19 Limitation of Liability.

(a) MERCHANT AGREES AND ACKNOWLEDGES THAT SERVICERS SHALL HAVE NO LIABILITY, EITHER IN TORT, CONTRACT OR IN COMBINATION THEREOF, FOR CLAIMS ARISING FROM TRANSACTIONS PROCESSED UNDER THIS AGREEMENT EXCEPT IN THE CASE OF GROSS OR WILLFUL MISCONDUCT ON THE PART OF SERVICERS. ANY SUCH CLAIMS ARE SUBJECT TO LIMITATIONS SET FORTH BELOW AND IN NO EVENT SHALL SERVICERS BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, REVENUES OR LOST BUSINESS OPPORTUNITIES.

(b) THE LIABILITY, IF ANY, OF SERVICERS, UNDER THIS AGREEMENT WHETHER TO MERCHANT OR TO ANY OTHER PARTY, WHATEVER THE BASIS OF LIABILITY, SHALL NOT EXCEED IN THE AGGREGATE THE DIFFERENCE BETWEEN (I) THE AMOUNT OF FEES PAID BY MERCHANT TO SERVICERS DURING THE MONTH IN WHICH THE TRANSACTION OUT OF WHICH THE LIABILITY AROSE OCCURRED, AND (II) ASSESSMENTS, CHARGEBACKS, RETURNS AND ANY OFFSETS AUTHORIZED UNDER THIS AGREEMENT AGAINST SUCH FEES WHICH AROSE DURING SUCH MONTH. IN THE EVENT MORE THAN ONE MONTH WAS INVOLVED, THE AGGREGATE AMOUNT OF SERVICERS LIABILITY SHALL NOT EXCEED THE LOWEST AMOUNT DETERMINED IN ACCORD WITH THE FOREGOING CALCULATION FOR ANY ONE MONTH INVOLVED. IN NO EVENT WILL THE LIABILITY OF SERVICERS UNDER THIS AGREEMENT EXCEED $50,000.

(c) EXCEPT AS EXPRESSLY PROVIDED HEREIN, SERVICERS MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND SERVICES, AND NOTHING CONTAINED IN THIS AGREEMENT WILL CONSTITUTE SUCH A WARRANTY. SERVICERS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. SERVICERS FURTHER DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. SERVICERS FURTHER EXPRESSLY DISCLAIM ANY LIABILITY FOR UNAUTHORIZED ACCESS OF FACILITIES OR TO MERCHANT'S DATA OR PROGRAMS DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS OR DEVICES USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND SERVICERS’ REASONABLE CONTROL.

1.20 Indemnification by Merchant.

Merchant agrees to indemnify and hold harmless Servicers, and their affiliates, employees, agents, representatives, members, or stockholders, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) arising out of or relating to:

(a) any dispute between Merchant and a Cardholder or check writer or customer, or any Sales Draft or ACH deposit paid for by Servicers;

(b) any actual or alleged action or omission by Merchant that would constitute a breach of any representation, warranty, or obligation of Merchant set forth in this Agreement;

(c) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Merchant or any of its employees, agents or customers;

(d) the reliability, accuracy, or legitimacy of payment data submitted by Merchant;

(e) any alleged infringement of another party's intellectual property rights by Merchant;

(f) a failure of Merchant to maintain the confidentiality of Cardholder or check writer information;

(g) any action Servicers take against the Account under this Agreement. Merchant will also indemnify and hold harmless the institution at which Merchant maintains the Account for acting in accordance with any instruction from Servicers regarding the Account; or

(h) any Chargebacks or fees, fines or penalties assessed by a Card Association with respect to transactions submitted by Merchant to Servicers.

If Merchant is an agency or instrumentality of a state of the United States and is precluded by the law of Merchant's state from entering into indemnification obligations, then the obligations under this Section shall apply only to the extent permitted by such state law. This section will survive termination of this Agreement.

1.21 Confidential Information.

(a) Servicers may disclose information relating to Merchant's sales to financial institutions, Card Associations and third parties that need the information for a purpose relating to this Agreement and to the Servicers’ agent or referral source, if any, that played a role in establishing Merchant's relationship with Servicers solely for the purpose of computing payment due to such persons. Servicers may also disclose information regarding Merchant as part of an investigation by Servicers into Merchant's compliance with its obligations under this Agreement if Servicers determine there is cause to make such an inquiry, or to the extent required or requested by a court or governmental authority, or otherwise as required by law.

(b) Except to the extent specifically permitted by the Rules, the operating rules of NACHA or this Agreement, Merchant shall not disclose any information relating to any Card transaction , or any Cardholder or check writer, to any person or entity other than Servicers, Servicers' employees, agents and independent contractors, and those of Merchant's employees who have a specific need to know such information except to complete the Card transaction or as otherwise required or authorized by this Agreement or by law. Merchant shall treat all documents provided by Servicers relating to this Agreement as confidential and proprietary and protect them with the same degree of care as Merchant would protect its own confidential and proprietary information, and not less than reasonable care.

(c) Merchant agrees that this Agreement, and all other user information provided by Servicers, the process utilized by Servicers for providing services, and all written communications concerning services hereunder are confidential and proprietary information of Servicers. Merchant agrees that neither it nor any of its employees, agents, representatives, or independent contractors will disclose any such confidential, proprietary information to any person or entity that is not a party to this Agreement without the express written consent of Servicers.

1.22 Safeguarding of Information.

(a) Merchant and its agents shall be in full compliance with Rules adopted by any Card Association relating to the privacy and security of Cardholder and Card transaction data, including without limitation the Payment Application Data Security Standard (“PA DSS”) and the Payment Card Industry Data Security Standard (“PCI DSS”), as they may be amended from time to time. Information pertaining to such requirements may be found at https://www.pcisecuritystandards.org. PCI DSS and other industry aligned validation requirements collectively form the basis for each of the following Card Association compliance programs, with which Merchant must also comply: (i) the Cardholder Information Security Program (“CISP”) - VISA’s data security program; (ii) the Site Data Protection (“SDP”) - MasterCard’s data security program; and (iii) the Discover Network Information Security and Compliance (“DISC”) - Discover Network’s data security program. Additionally, Merchant shall be responsible for demonstrating compliance by its agents for these programs.

(b) Merchant shall be liable for all fines, charges, and penalties that may be assessed by any Card Association as a result of transactions made by Merchant or Merchant's noncompliance with the preceding requirements. Merchant also acknowledges that it may be prohibited from participating in Card Association programs if it is determined that Merchant is non-compliant. Merchant acknowledges that it may be subject to, and Servicers retain the right, to conduct or cause to be conducted an audit to verify Merchant's compliance with the foregoing security requirements. Merchant must notify Servicers within twenty-four (24) hours after becoming aware of (i) any suspected or actual data security breach or (ii) any noncompliance by Merchant with the security requirements set forth herein. In such event, if requested by Servicers or Card Association, Merchant shall, at its own expense, (a) perform or cause to be performed an independent investigation of any data security breach of Card or Card transaction data by an authorized assessor acceptable to Servicers, (b) take all such remedial actions recommended by such investigation, by Servicers or by VISA or MasterCard, and (c) cooperate with Servicers in the investigation and resolution of any security breach.

(c) Merchant will not, under any circumstances, disclose any Cardholder's account number nor any information relating to any Cardholder's account number or any Sales Drafts or Credit Vouchers which may have been imprinted with any Card to any person other than Servicers, or as required by law. Merchant agrees not to store, distribute, copy or otherwise manipulate card account numbers or PINs that appear, are encoded or are otherwise associated with Cards. All electronic commerce Merchants must provide Cardholders with a secure transaction method, such as Secure Sockets Layer (SSL) or 3-D Secure. Further, Merchant agrees to store (to the extent such storage is permitted) any and all material containing Cardholder account numbers, imprints or information in a secure manner, in an area limited to selected personnel, and to destroy such numbers, imprints, and information before discarding in a fashion that renders the data unreadable and unrecoverable. Neither Merchant nor any of its agents shall retain or store the full contents of any track on the Magnetic-Stripe, or equivalent data on the Contactless Payment chip, subsequent to Authorization of a Card transaction.

(d) Merchant must notify Servicers of any third party agent of Merchant that will have any access to Cardholder data.

(e) Merchant understands and agrees that due to requirements of the law, Card receipts may not contain (i) more than the last five digits of the credit card account number; and (ii) that the Card receipt may not contain the expiration date.

(f) If Merchant sells goods or services on the Internet, Merchant's web site must contain Merchant's consumer privacy policy and a description of Merchant's method of safeguarding consumer transaction data.

(g) Merchant must fully cooperate with Servicers and Card Associations if Merchant is undergoing a forensic investigation at any time with regard to the Account.

1.23 Account Access Password.

(a) If Merchant receives a user identification name or password from Servicers to access Servicers' database or use services offered by Servicers, Merchant will: (i) keep the user identification name and password confidential; (ii) not allow any other entity or person to use the user identification name or password or gain access to Servicers' database; (iii) be liable for all action taken by any user of the user identification name or password; and (iv) promptly notify Servicers if Merchant believes the user identification name or password have been used inappropriately or the confidentiality of the information made available through their use has been compromised.

(b) Merchant agrees that any loss incurred as a result of any party gaining access to Account or Servicers' website using information which that party was not authorized to obtain or using such information in a manner not permitted by this Agreement (including but not limited to improper or unauthorized use of Merchant's ID number and PIN) shall be the responsibility of Merchant.

1.24 Privacy.

Servicers will have access to the data associated with Merchant’s use of the service. Servicers will handle this information in accordance with their privacy policies.

1.25 Feedback.

Servicers may provide Merchant with a mechanism to provide feedback, suggestions, and ideas about Servicers products and services ("Feedback"). Merchant agrees that Servicers may, in their sole discretion, use the Feedback in any way, including in future modifications of the products and services and any related advertising and promotional materials. Merchant grants Servicers a perpetual, worldwide, fully transferable, non-revocable, royalty-free license to use, reproduce, modify, create derivative works from, perform, distribute and display for any purpose any information Merchant provides to Servicers in the Feedback. Merchant will have no obligation to provide any Feedback to Servicers.

1.26 Modifications to Agreement.

Servicers may from time-to-time amend any provision of this Agreement, including those relating discount rates or other fees and charges payable by Merchant, whether such amounts are set forth in the Merchant Application, any separate schedule of fees or the fee provisions of this Agreement. Servicers will provide notice to Merchant of the amendment, and unless specified otherwise, the amended agreement shall become effective at the start of the first billing cycle after Servicers have provided notice. Amendments due to changes in a Card Association's fees, interchange, assessments, Rules, gift card systems or any law or judicial decision will become effective at such time that Servicers may specify, which may be sooner than the beginning of the next billing cycle following the date of the notice.

1.27 Additional Services Offered by Servicers.

From time to time, Servicers may offer to Merchant additional products and services which may or may not be related to the processing of Card transactions. In the event of such offers, Merchant shall indicate its desire to Servicers to decline such offers or be deemed to have accepted the offers and be liable for payment, therefore.

1.28 Compliance with Law.

Merchant shall comply with all laws applicable to Merchant, Merchant's business and any Card transactions, including without limitation to all Rules, state and federal consumer credit and consumer protection laws, as well as laws for any special services used by Merchant, such as gift card and other services.

1.29 Merchant Dispute Notification.

Merchant is responsible for the timely reconciliation of all issues related to services provided under this Agreement. Merchant will promptly examine all merchant statements relating to the Account and immediately notify Servicers in writing of any errors. Merchant’s written notice must include: (i) Merchant name and Account number, (ii) the dollar amount of the asserted error, (iii) a description of the asserted error, and an explanation of why Merchant believes an error exists and the cause of it if known. That written notice must be received by Servicers within thirty (30) days after Merchant received the periodic statement containing the asserted error. Merchant may not make any claim against Servicers for any loss or expense relating to any asserted error for sixty (60) days immediately following receipt of Merchant’s written notice. During that sixty (60) day period, Servicers will be entitled to investigate the asserted error and Merchant will not incur any cost or expense in connection with the asserted error without notifying Servicers.

1.30 Notices; Consent to Electronic Communications.

By applying for services and confirming that it has read this Agreement, Merchant is confirming to Servicers that it has the means to access the Internet through its own service provider and download or print electronic communications. Merchant agrees to the receipt of electronic communications by email or by the posting of such information by Servicers at one or more of Servicers' sponsored websites, such as http://www.merchantsupport.info/disclosure/TMS.html. Such communications may pertain to the services delivered by Servicers, the use of information Merchant may submit to Servicers, changes in laws or Rules impacting the service or other reasons, such as amendment of this Agreement. In addition, all notices and other communications required or permitted under this Agreement by Servicers to Merchant may also be delivered by Servicers to Merchant either by FAX, overnight carrier or first class mail, postage or other charges prepaid, addressed and transmitted as set forth below. All notices and other communications required or permitted under this Agreement by Merchant to Servicers shall be delivered by Merchant to Servicers by overnight carrier or certified mail, postage or other charges prepaid, addressed and transmitted as set forth below. Notice by FAX or e-mail shall be deemed delivered when transmitted. Notice by mail or overnight carrier shall be deemed delivered on the first (1st) business day after mailing or delivery to the carrier. Following are the addresses for the purposes of notices and other communications hereunder, which may be changed by written notice in accordance with this section:

(a) If to Servicers, addressed and transmitted as follows:

Total Merchant Services, Inc.
21650 Oxnard Street
Ste 1200
Woodland Hills, CA 91367
Attn: Merchant Services

(b) If to Merchant, at the address provided as the billing address, or the FAX number or e-mail address and to the contact listed on the Merchant Application.

1.31 Further Assurances.

At any time or from time to time upon the request of Servicers, Merchant will execute and deliver such further documents and do such other acts as Servicers may reasonably request in order to effectuate fully the purposes of this Agreement.

1.32 Force Majeure.

Any delay in or failure of performance by Servicers under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond their reasonable control, including, but not limited to, acts of God, power outages, failures of the Internet, failures of banking institutions, or Card Associations.

1.33 Choice of Law, Jurisdiction, Venue.

The parties agree that all performances and transactions under this Agreement will be deemed to have occurred in California and that Merchant's entry into and performance of this Agreement will be deemed to be the transaction of business within the State of California. This Agreement will be governed by California law, without regard to its conflicts-of-law principles, and applicable federal law. Subject to Section 1.50 below: (i) the parties hereby knowingly, intelligently and voluntarily consent to the exclusive jurisdiction and venue for any action relating to the subject matter of this Agreement in either the Los Angeles County Superior Court or the United States District Court for the Central District of California sitting in Los Angeles, California; (ii) the parties consent to the jurisdiction of such courts and agree that process may be served in the manner allowed by the laws of the State of California or United States federal law: (iii) the parties hereby knowingly, voluntarily and intelligently waive any claim or defense in any such legal action, suit or proceeding commenced in any of the above-referenced courts asserting that it is not subject personally to the jurisdiction of such court, that service upon it as hereinabove set forth is invalid, that its property is immune or exempt from attachment or execution, that the legal action, suit or proceeding is brought in an inconvenient forum, that the venue of the legal action, suit or proceeding is improper or that this Agreement, or the subject matter hereof, may not be enforced in or by such court.

1.34 Jury Waiver.

In the event any controversy or claim between or among the parties, their agents, employees, representatives, or affiliates shall arise in any judicial or legal proceeding, each party hereby knowingly, intelligently and voluntarily waives its respective right to trial by a jury of such controversy or claim.

1.35 Costs.

If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, or any part thereof, the prevailing party shall be entitled to recover its reasonable attorneys' and experts' fees and costs in addition to any other legal and/or equitable remedies to which it is entitled.

1.36 Publicity.

Merchant agrees that Servicers may issue a press release or similar public announcement referencing Merchant as a customer of Servicers. Merchant also grants to Servicers a limited license to use Merchant's and its affiliates' names, logos, trademarks, service marks or copyrights in any advertising, promotional or instructional materials for Servicers or their affiliates' services.

1.37 Intellectual Property.

Servicers retain all right, title and interest in and to the services and any related technology utilized by it under or in connection with this Agreement, including but not limited to all associated intellectual property rights. No title to or ownership of any of the foregoing is granted to Merchant or any other entity or person under this Agreement. Merchant will not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the Servicers services or related technology.

1.38 Taxes.

Merchant shall promptly pay when due any and all liability or expense relating to the payment of federal, state, and local taxes (other than taxes based in whole or in part upon income attributable to Servicers). Merchant represents and warrants that the taxpayer identification and/or social security number provided to Servicers is true, correct and complete. Upon request, Merchant will complete, sign and deliver to Servicers a Form W-9 to verify Merchant’s taxpayer identification and/or social security number. Merchant shall also take all other actions as may be required by Servicers in order to comply with Internal Revenue Section 6050W and any amendments or supplements thereto.

1.39 Rights Cumulative.

All rights and remedies existing in this Agreement are cumulative to, and not exclusive of, any other rights or remedies available under contract or applicable law.

1.40 Headings.

The headings listed after each section number in this Agreement are inserted for convenience only and do not constitute a part of this Agreement and are not to be considered in connection with the interpretation or enforcement of this Agreement.

1.41 Waiver.

Failure by Servicers to enforce one or more of the provisions of this Agreement shall not constitute a waiver of the right to enforce the same or other provision in the future. All waivers must be signed by the waiving party.

1.42 Entire Agreement.

This Agreement, including the Merchant Application, any separate schedule of fees, the Rules, information contained in websites or electronic links referenced in this Agreement, and Exhibits to this Agreement, expresses the entire understanding of the parties with respect to its subject matter and except as provided herein. Reference to "this Agreement" also includes all documents, websites and electronic links incorporated into this Agreement by reference.

1.43 Severability.

If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.

1.44 Assignment.

This Agreement may be assigned by Servicers, but may not be assigned by Merchant, directly or by operation of law, without the prior written consent of Servicers, which may be withheld in its sole discretion. The Servicers' right to assign this Agreement includes the ability to assign Servicers’ right to debit the Account (and other accounts). If Merchant nevertheless assigns this Agreement without such consent, this Agreement will be binding upon the assignee at the option of Servicers, but otherwise, such assignment shall be null and void and of no force and effect. This Agreement shall be binding upon and inure to the benefit of the parties' respective heirs and personal representatives for an individual, and otherwise its permitted successors and assigns. If Merchant sells its business and the new owners incur Chargebacks or returns, absent notification, and consent by Servicers, both the new owner and the original owner and all Guarantors will be held personally liable for all liabilities of Merchant before and after the sale of the business.

1.45 Authorization of Agreement.

Merchant represents and warrants that the person signing or electronically authorizing this Agreement is duly authorized to bind Merchant to all provisions of this Agreement and that such person is authorized to execute any documents and to take any action on behalf of Merchant which may be required by Servicers now or in the future. Merchant will execute a separate Entity Certification if requested to do so by Servicers. Merchant, by its signature, upon its first transmission of Card transactions, or first payment of fees acknowledges that it agrees to be bound by this Merchant Agreement as it may be modified from time to time.

1.46 Relationship of the Parties.

The parties are independent contractors and nothing in this Agreement shall make them joint ventures, partners, employees, agents or other representatives of the other party.

1.47 Export Restrictions.

Merchant acknowledges that any software provided to it by Servicers in connection with delivering services is subject to the U.S. Export Administration Regulations (15 CFR, Chapter VII). These laws include restrictions on destinations, end users, and end use.

1.48 Counterparts.

If copies of this Agreement or any amendments are to be physically signed, this Agreement may be executed and delivered in several counterparts and transmitted by facsimile, a copy of which will constitute an original and all of which taken together will constitute a single agreement.

1.49 Electronic Signature.

Merchant may become a party to, and become bound by, this Agreement by completing the Merchant Application and accepting it electronically over the Internet. This is done by clicking or entering “I Agree”, by providing an electronic form of signature or otherwise by affirmatively indicating acceptance or consent where requested on an electronic version of the Merchant Application (any such method constituting an “Electronic Consent”). By providing such Electronic Consent, Merchant acknowledges that it has received and reviewed all applicable pages, terms and conditions of this Agreement, and it represents, warrants, consents and agrees as follows:

(a) the electronic application process allows Merchant to sign and agree to legally binding agreements online by providing its Electronic Consent.

(b) Merchant intends to use the electronic application process to provide its Electronic Consent.

(c) Merchant’s Electronic Consent is legally binding, and is governed by the Electronic Signatures in Global and National Commerce Act of 2000, and/or the Uniform Electronic Transactions Act governances (or an amended version thereof) in its state of residence, and Merchant agrees to be bound by these governances.

(d) the individual providing Electronic Consent on behalf of Merchant is authorized by Merchant to do so.

(e) the Electronic Consent will be binding upon Merchant, and will not be construed by a court of law to have any less effect than a standard ink or paper signature.

(f) the information provided on the electronic version of the Merchant Application is complete and accurate, and Servicers are authorized to verify the information on such Merchant Application and to receive and exchange information about Merchant, including the credit and financial inquiries identified in Section 1.05 of this Agreement and confidential information under Section 1.21.

(g) the complete and legible Merchant Application and this Agreement has been provided to Merchant, and Merchant (a) was technically capable of opening, reading, printing, downloading and/or saving all sections of the Merchant Application and this Agreement, and (b) had a reasonable opportunity to open each section of the Merchant Application and this Agreement, read it, and sign and agree to it by providing its Electronic Consent.

(h) no strikeouts, interlineations, additions or modifications to the electronic version of the Merchant Application and this Agreement may be made.

(i) the electronic version of the Merchant Application and this Agreement, as accepted by the Electronic Consent of Merchant, may be transmitted to or from Servicers or their designees and/or retained electronically by Servicers or their designees, which will constitute an original.

(j) The electronic version of the Merchant Application and this Agreement is subject to approval by Servicers.

1.50 Dispute Resolution.

Servicers and Merchant each acknowledge and agree that any controversy, disagreement, dispute or claim arising out of or relating to this Agreement, or any breach thereof (each, a “Dispute”), shall be settled by following the procedures set forth below:

(a) Servicers, on the one hand, and Merchant, on the other hand, agree first to contact the other to advise of any such Dispute. The party alleging, asserting and/or initiating the Dispute shall contact the other party or parties who is or are alleged to be liable or responsible for such Dispute, and provide a written description of the Dispute, all relevant documents/information and the proposed resolution (the “Claim Notice”). Merchant agrees to contact Servicers as contemplated above by calling or writing to: Claims Administrator, 21650 Oxnard Street Ste 1200, Woodland Hills, CA 91367, Tel. No. 1 (888) 848 - 6825. Servicers will contact Merchant in any manner approved in Section 1.30 above.

(b) The Claims Administrator for Servicers and Merchant shall then seek in good faith to resolve the Dispute. As part of this process, each party to the Dispute shall provide a monetary amount that, if paid to the party alleging, asserting and/or initiating the Dispute, would settle the Dispute (the “Settlement Amount”). If the parties do not agree to a Settlement Amount or the parties are otherwise unable to settle the Dispute within thirty (30) days of the date of delivery of the Claim Notice, then the parties shall proceed to arbitration as set forth below.

(c) IN THE ABSENCE OF RESOLVING THE DISPUTE UNDER THIS SECTION 1.50, AND INSTEAD OF SUING IN COURT, SERVICERS AND MERCHANT EACH AGREE TO SETTLE AND RESOLVE FULLY AND FINALLY ALL DISPUTES EXCLUSIVELY BY ARBITRATION, EXCEPT IN THE FOLLOWING LIMITED CIRCUMSTANCES: (I) SERVICERS OR MERCHANT MAY COMMENCE AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT WHERE THE AMOUNT OF THE DISPUTE DOES NOT EXCEED THE JURISDICTIONAL LIMIT OF SUCH COURT; AND (II) MERCHANT MAY FILE A DISPUTE WITH ANY FEDERAL, STATE OR LOCAL GOVERNMENTAL AGENCY THAT CAN, IF THE LAW SO AUTHORIZES, SEEK RELIEF AGAINST SERVICERS ON BEHALF OF MERCHANT. THE AGREEMENT TO HAVE DISPUTES RESOLVED BY ARBITRATION IS MADE WITH THE UNDERSTANDING THAT EACH PARTY IS IRREVOCABLY, KNOWINGLY AND INTELLIGENTLY WAIVING AND RELEASING ITS RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE DISPUTES. Without limitation, Servicers and Merchant agree that Disputes, as defined above, shall include the following matters: (a) any Dispute by any party against any agent, employee, successor, or assign of the other party or parties, including to the full extent permitted by applicable law, third parties who are not signatories to this Agreement, whether related to this Agreement or otherwise; (b) any past, present, and future Dispute; and (c) any Dispute as to the scope, validity or applicability of this Section 1.50, and/or the arbitrability of any Dispute; and (d) any Dispute against Servicers, or any other party as stated above, related in any way to the services, including, but not limited to, the characterization of the transactions referenced in this Agreement, privacy, solicitation, or advertising, even if it arises after the Agreement has terminated.

(d) The foregoing arbitration shall be administered by the American Arbitration Association (the “AAA”) in accordance with its Commercial Arbitration Rules in effect when a Claim Notice is duly provided under this Section 1.50. If any AAA procedure or rule conflicts with the terms of this Agreement, the terms of this Agreement apply.

(e) Servicers and Merchant are entering into this Agreement in connection with a transaction involving interstate commerce. Accordingly, the arbitration set forth in this Agreement and any proceedings thereunder shall be governed by the Federal Arbitration Act (the “FAA”), 9 U.S.C. Sections 1-16. Any award by the arbitrator may be entered as a judgment in any court having jurisdiction. Any arbitrator’s decision and award are final and binding, subject only to those exceptions under the FAA. Servicers and Merchant agree the FAA’s provisions, not state law, govern all questions of whether a Dispute is subject to arbitration.

(f) Unless Servicers and Merchant agree otherwise, the foregoing arbitration will be conducted by a single neutral arbitrator selected by utilizing the process provided in the AAA’s Commercial Arbitration Rules in effect when Claim Notice is duly filed. The arbitrator shall be a licensed attorney and/or retired judge. Except as otherwise provided below, the arbitration shall be conducted in the county where the principal address of the party against whom the Dispute is initially commenced is located – and for any claim against Servicers, that address shall be Total Merchant Services, Inc., 21650 Oxnard Street Ste 1200, Woodland Hills, CA 91367. The federal or state law that applies to this Agreement will apply to the arbitration. The arbitrator shall have no authority to award punitive, consequential or other monetary damages not measured by the prevailing party’s actual damages, except as may be required by statute or as otherwise provided below.

(g) The award of the arbitrator shall be accompanied by a reasoned opinion.

(h) For Disputes of $10,000.00 or less that are initiated by Merchant (“Small Disputes”), the following rules shall apply notwithstanding anything to the contrary in the procedures or rules of the AAA and/or in this Agreement:

(1) The arbitration shall be conducted in accordance with the AAA’s Expedited Procedures.

(2) The arbitrator shall include a finding as to whether the initiation of such Dispute was frivolous. If it is determined by the arbitrator not to be frivolous, then Servicers shall pay the fees and costs assessed by the AAA in administering the arbitration.

(3) If the arbitrator finds that Servicers are liable to Merchant for an amount greater than the Settlement Amount presented by Servicers prior to the commencement of arbitration (after all offsets and counterclaims are applied), then Servicers shall be required to pay in addition to any award of the arbitrator an amount equal to the greater of (x) $1,000.00, or (y) twice the amount of Merchant’s reasonable attorneys’ fees.

(4) Merchant may choose to conduct the arbitration in the state of its principal address.

(i) SERVICERS AND MERCHANT EACH AGREE NOT TO PURSUE ARBITRATION ON A CLASS-WIDE BASIS. ARBITRATION WILL BE CONDUCTED SOLELY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

1.51 Non-Disparagement.

Merchant and Guarantor(s) each agree not to disparage either or both of Servicers or their respective vendors, and promise to refrain from engaging, directly or indirectly, in any action, communication or conduct negligently, recklessly or intentionally undertaken to damage the name or reputation of either or both of Servicers or their respective vendors.

1.52 General.

Merchant is responsible for its employees’ actions while in its employ. Except as otherwise expressly provided in this Agreement, the parties do not intend to confer any benefits on any person or entity other than Merchant and Servicers. Merchant is also responsible for procuring, maintaining and servicing all equipment and software necessary to allow it to engage with Servicers systems to process Card transactions through Servicers, as well as for all related Internet, telecommunication, mobile phone (including SMS charges and mobile data plan fees) and other similar fees.

1.53 Survival.

All Sections of this Agreement that by their nature should survive termination or expiration will survive, including, without limitation, accrued rights to payment, indemnification obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

ARTICLE II. CARD TRANSACTION SERVICES/RESTRICTIONS.

The following terms and conditions govern Card services provided by Servicers to Merchant.

2.01 Advertising.

(a) Merchant will prominently display the promotional materials provided by Servicers in its place(s) of business. Use of promotional materials and use of any trade name, trademark, service mark, or logo type ("Marks") associated with Card(s) shall be limited to informing the public that Card(s) will be accepted at Merchant's place(s) of business. Merchant's use of promotional materials and Marks is subject to the direction of Servicers.

(b) Merchant may use promotional materials and Marks during the term of this Agreement and shall immediately cease their use and return any inventory to Servicers upon termination of this Agreement.

(c) Merchant shall not use any promotional materials or Marks associated with VISA, MasterCard, AMEX, Discover Network or JCB in any way which implies that VISA, MasterCard, AMEX, Discover Network or JCB endorses any goods or services other than Card services, or otherwise in violation of the Rules.

2.02 Warranties of Merchant Regarding Card Transactions.

Merchant hereby represents and warrants to Servicers at the time of execution and during the term of this Agreement that:

(a) Each Sales Draft presented to Servicers for collection is genuine and is not the result of any fraudulent or illegal transaction and is not being deposited on behalf of any business other than Merchant. Further, Merchant warrants that each Sales Draft is the result of a Card transaction for the bona fide purchase of goods or services by the Cardholder in the total amount stated on the Sales Draft.

(b) Merchant has performed or will perform all of its obligations to the Cardholder in connection with the Card transaction evidenced thereby.

(c) Merchant has complied with Servicers' procedures accepting Cards, and the Card transaction itself shall not involve any element of credit for any other purposes other than as set forth in this Agreement and shall not be subject to any defense, dispute, offset or counterclaim which may be raised by any Cardholder under the Rules, the Consumer Credit Protection Act (15 USC 1601), or other relevant state or federal statutes or regulations.

(d) Any Credit Voucher which it issues represents a bona fide refund or adjustment on a Card transaction by Merchant with respect to which a Sales Draft has been accepted and shall be credited to the same Card used in the original Card transaction.

2.03 Honoring Cards.

(a) If Merchant elects to accept Card payments, Merchant will accept without discrimination, all valid Cards properly presented by Cardholders for payment for goods or services. With respect to VISA and MasterCard products, Merchant may elect to accept credit cards or debit/prepaid cards or both. Merchant shall so elect on the Merchant Application. Merchant agrees to pay and the Account will be charged pursuant to this Agreement for any additional fees incurred as a result of Merchant’s subsequent acceptance of Card transactions with any VISA or MasterCard product that it has elected not to accept.

(b) Merchant may establish a minimum transaction size for accepting Card transactions so long as such amount does not exceed $10, or such other amount established by law, and such minimum transaction size requirement does not discriminate between Card Issuers or between Card Associations. Merchant may not impose a maximum transaction size on Card transactions, or add a fee to a Card transaction.

(c) Merchant may offer discounts or in-kind incentives for payment by the use of cash, checks, Debit Cards, or Credit Cards, provided that the terms of the discount or in-kind incentives do not differentiate on the basis of the Card Issuer or the Card or Card Association.

(d) Merchant shall not accept a Card as payment (other than for a mail order, telephone order, or preauthorized sale to the extent permitted under this Agreement), if the person seeking to use the Card does not present the Card to permit Merchant to examine it and obtain an imprint or otherwise use the physical Card to complete the Transaction.

2.04 Card Acceptance.

When accepting a Card, Merchant will follow the steps provided by Servicers for accepting Cards and will:

(a) Determine in good faith and to the best of its ability that the Card is valid on its face, and that the back of the Card is not disfigured or tampered with.

(b) Obtain Authorization before completing any Card transaction. Where Authorization is obtained, Merchant will be deemed to warrant the true identity of the customer as the Cardholder.

(c) Obtain an Imprint of the Card unless the Sales Draft is electronically generated from a swiped Card transaction or is the result of an Internet, mail, phone or preauthorized order.

(d) If Merchant’s terminal is unable to read the magnetic stripe on the Card, Merchant will obtain an imprint of the Card and the Cardholder's signature on the imprinted draft before processing the Sales Draft.

(e) Enter a description of the goods or services sold and the price thereof (including any applicable taxes) on the Sales Draft.

(f) Refrain from writing any personal information of the Cardholder on the Sales Draft.

(g) Obtain the Cardholder's signature on the completed Sales Draft and match that signature to the signature on the Card.

(h) Deliver a true and completed copy of the Sales Draft to the Cardholder at the time of delivery of the goods or performance of the services, or if the Sales Draft is prepared by a point-of-sale terminal, at the time of the sale.

(i) Offer the Sales Draft to Servicers for purchase according to the Servicers procedures and the terms of this Agreement.

(j) Legibly reproduce without alteration of the original Card transaction receipt, the Cardholder’s name, account number, expiration date and Merchant’s name and place of business if that information is not legibly imprinted on the Sales Draft. Also, for MasterCard transactions, Merchant will legibly reproduce the name of the Card Issuer as it appears on the face of the Card.

2.05 Authorization.

(a) Merchant will obtain an Authorization for all Card transactions. If Merchant cannot, for any reason, obtain an electronic Authorization, Merchant will request a voice Authorization from the designated authorization center, and will legibly print the Authorization number on the Sales Draft. Fees for voice Authorizations are as set forth in Section 1.14 below.

(b) Merchant shall not request Authorization for a Card transaction unless Merchant intends to submit a Card transaction for the authorized amount.

(c) Merchant acknowledges that an Authorization provides only that the Cardholder account has sufficient credit available to cover the amount of the current sale, and that an Authorization is not a guarantee of payment.

(d) Merchant will not attempt to obtain Authorization on an expired Card. Card transactions will be deemed invalid on Cards that are expired, whether or not Authorization has been obtained.

2.06 Unusual and Suspicious Transactions; Account Monitoring.

(a) Merchant acknowledges that Servicers will monitor Merchant's daily deposit activity for purposes of monitoring compliance with this Agreement. Merchant agrees that Merchant's deposit activity will remain consistent with the "approved" monthly volume and average ticket amount approved on the Merchant Application and/or by Servicers. Servicers may require additional documentation if Merchant should exceed "approved" monthly volume or average ticket, and Merchant agrees promptly to provide such documentation upon request. Merchant agrees that Servicers may, in their sole discretion, elect not to process volumes of the approved monthly volume or over limit transactions, and/or to terminate processing of Card transactions for cause in the event of over limit or excessive activity. Merchant further agrees that Servicers may, in their sole discretion, suspend the disbursement of Merchant's funds for any reasonable period of time required to investigate suspicious or unusual deposit activity and that such suspension may subject Merchant to additional suspension fees as set forth herein. Servicers will make good faith efforts to notify Merchant of such suspension as promptly as is commercially reasonable, but no liability shall accrue against Servicers if such notice is not so provided. Servicers shall have no liability for any losses, either direct or indirect, which Merchant may attribute to any suspension of funds disbursement.

(b) In the event of suspension arising from a suspicious or unusual Card transaction, Merchant agrees that the Account may be charged a Security Processing Fee of $100 per suspended Card transaction and, if the suspended Card transaction or unusual or suspicious activity exceeds $3,000, an additional $100 Investigative Fee may be assessed for each such event, without limiting any other rights or remedies of Servicers under this Agreement.

(c) If a batch is suspended by Servicers, Merchant acknowledges that the consumer's product or service must be delivered just as if Merchant has been paid. Further, if a batch or a Card transaction is suspended, Merchant acknowledges that fees associated with the Card transactions will be charged including security fees.

(d) Merchant's presentation to Servicers of Excessive Activity will be a breach of this Agreement and a cause for immediate termination of this Agreement. "Excessive Activity" means, during any monthly period and for any one of Merchant's terminal identification numbers or merchant identification numbers, (i) Chargebacks and/or retrieval requests in excess of 1% of the average monthly dollar amount of Card transactions, (ii) returns in excess of 3% of the average monthly dollar amount of Card transactions, or (iii) processing an average ticket above the amount approved by Servicers. Merchant authorizes, upon the occurrence of Excessive Activity, Servicers to take additional actions as they may deem necessary, including, but not limited to, suspension of processing privileges or creation or maintenance of a Reserve Account in accordance with this Agreement.

2.07 Forms.

Merchant shall use only such forms or modes of transmission of Sales Drafts and Credit Vouchers as are provided or approved in advance by Servicers.

2.08 Retention and Retrieval of Cards.

Merchant shall use its best efforts, by reasonable and peaceful means, to retain or recover a Card when receiving such instructions upon making a request for Authorization. In carrying out such obligation Merchant will not breach the peace or cause any injury to any person or property.

2.09 Personal Information.

Merchant may not require Cardholders to provide any personal information as a condition of honoring a Card unless such information is required for delivery of the goods or services or Merchant has reason to believe that the person presenting the Card may not be the actual Cardholder.

2.10 Records; Requests for Copies.

Merchant shall retain a copy of all Sales Drafts and Credit Vouchers for customer present transactions and electronically approved authorizations for all Card Not Present Transactions for at least three (3) years after the date of the Card transaction. Within three (3) business days of receipt of any written or verbal request by Servicers, Merchant shall provide either the actual paper Sales Draft or a legible copy thereof and any other documentary evidence reasonably requested by Servicers. A failure of Merchant to deliver the requested documentation in the required time frame may result in the transaction in question being charged back to the Account and Merchant losing further rights.

2.11 Multiple Transaction Records; Partial Payments.

Merchant shall include all goods and services purchased in a single Card transaction at one time on a single Sales Draft, except: (i) for purchases in separate departments of a multiple department store; (ii) for installment payment; or (iii) for delayed or amended charges governed by rules for travel and entertainment merchants and Card transactions.

2.12 Telephone Orders “TO”, Mail Orders “MO”, Internet Orders, Preauthorized Orders “PO” and Installment Orders “IO”.

(a) Unless Merchant has been approved by Servicers to accept Internet, mail, and phone orders, Merchant warrants that it is a walk-in trade business, located in a retail business place. If Merchant is found to be accepting mail orders, telephone orders, or Internet Card transactions without such consent, such charges are subject to Chargeback, as provided in this Agreement. When allowed, telephone and Internet orders are permitted only to the extent that the contact is initiated by the Cardholder.

(b) If authorized to accept payment by the Internet, mail, phone or pre- authorized order, the Sales Draft may be completed without the Cardholder's signature or an imprint, but in such case Merchant shall create a Sales Draft containing Cardholder account number, expiration date, transaction date, an Authorization number, the sale amount and the letters "MO", "TO", "PO", or "IO" as appropriate. In addition, Merchant's business name, city, and state must be included. For Internet orders, Merchant shall attempt to obtain the Card expiration date and forward it as part of the Authorization request for non-secure Card transactions and non-authenticated security transactions. Receiving an Authorization shall not relieve Merchant of liability for Chargeback on any Card transaction for which Merchant did not obtain an imprint and the Cardholders signature.

(c) For Approved MO, TO, PO, and IO Merchants, Merchant must use reasonable procedures to verify that each Card sale is made to a purchaser who actually is the Cardholder or the authorized user of the Card. The Address Verification System (“AVS”) is recommended and in some cases required. AVS is not a guarantee for payment, and the use of AVS will not waive any provision of this Agreement or otherwise validate a fraudulent Card transaction.

(d) Unless approved in writing by Servicers, Merchant shall not process sales prior to delivery of product or service. If the product is being shipped, the customer must be given the shipping date of the product once the sale is processed.

(e) Merchant may limit acceptance of returned merchandise or establish a policy to make price adjustments for any Card transactions. If a Merchant refund policy prohibits returns under certain circumstances, Merchant may still receive a Chargeback relating to such sales pursuant to Card Association Rules.

(f) Merchant must not accept credit card sales via “electronic mail” over the Internet.

(g) Merchant must be approved by Servicers to charge customers via an automatic or recurring payment plan. Any Card transactions in violation of this provision are subject to Chargeback to Merchant. For any such automatic or recurring Card transactions, Merchant must obtain a written or electronic form of request from Cardholder for such goods and services to be charged to the Cardholder’s account, which request must specify (i) the Cardholder’s name, address and Card number and expiration date, (ii) the Card transaction amounts (including the total of all transaction amounts authorized) to be charged to the Cardholder’s account, (iii) the frequency of the recurring charge and the duration of time during which such charges may be made, (iv) a general description of the Card transaction, and (v) Merchant’s business name and customer service telephone number that the Cardholder may call to obtain customer assistance from Merchant or to revoke approval of the automatic payment plan. Merchant shall not complete any recurring Card transaction after receiving a cancellation notice from the Cardholder, the Servicers, or a response to an Authorization request which indicates that the Card is not to be honored. Merchant shall type or legibly print the words “Recurring Transaction” on the signature line of the Sales Draft. Merchant shall provide a copy of Cardholder’s written request to Servicers upon request, and shall retain a copy of such written request for one year after this Agreement between Merchant and Cardholder is terminated. For multi-year agreements, Merchant shall renew written request with Cardholder annually during the 12th month of the current agreement. The first automatic or recurring payment plan Card transaction must contain a positive response from the AVS. If the first payment does not contain this information, all subsequent payments are subject to Chargeback to Merchant.

2.13 Lodging and Vehicle Rental Transactions.

(a) Merchant must estimate and obtain Authorization for the amount of the Card transaction based upon the Cardholder’s intended length of stay or rental. Additional Authorization must be obtained and recorded for charges actually incurred in excess of the estimated amount. Some lodging Merchants are eligible to participate in VISA's Advanced Deposit Service Program. Merchants participating in this service must adhere to the Rules concerning the Advanced Deposit Service Program as set forth by VISA.

(b) Regardless of the terms and conditions of any written preauthorization form, the Sales Draft amount for any lodging or vehicle rental Card transaction shall include only that portion of the sale, including any applicable taxes, evidencing a bona fide rental of personal property by Merchant to the Cardholder and shall not include any consequential charges. Nothing contained herein is intended to restrict Merchant from enforcing the terms and conditions of its preauthorization form through means other than a Card transaction.

2.14 Returns and Adjustments: Credit Vouchers.

(a) Merchant’s policy for the exchange or return of goods sold and the adjustment for services rendered shall be established and posted in accordance with the Rules. If applicable, Merchant must disclose to a Cardholder before a Card sale is made, that if merchandise is returned: (i) no refund, or less than a full refund, will be given; (ii) returned merchandise will only be exchanged for similar merchandise of comparable value; (iii) only a credit toward purchases will be given; or (iv) special conditions or circumstances apply to the sale (e.g., late delivery, charges, or other noncredit terms).

(b) Disclosures must be made on all copies of Sales Drafts in letters approximately 1/4” high in close proximity to the space provided for the Cardholder’s signature on the Sales Draft and issued at the time of sale.

(c) If Merchant does not make these disclosures, a full refund in the form of a credit to the Cardholder’s Card account must be given. Merchant will not refund cash to a Cardholder who paid for the item by Card.

(d) Credits must be made to the same Card account number on which the original sale transaction was processed.

(e) If Merchant accepts any goods for return or terminates or cancels any services, in conjunction with each such Card transaction, Merchant shall have sufficient funds in its account available to Servicers to cover the amount of the Card transaction and any related fees.

2.15 Cash Payments.

Merchant shall not receive any payments from a Cardholder for charges included in any Card transaction resulting from the use of a Card, nor receive any payment from a Cardholder to prepare and present a Card transaction for the purpose of affecting a deposit to the Cardholder’s Card account.

2.16 Cash Advances.

(a) Merchant shall not deposit any Card transaction for the purpose of obtaining or providing a cash advance either on Merchant’s Card or the Card of any other party. Merchant agrees that any such deposit shall be grounds for immediate termination.

(b) Merchant, shall not under any circumstances obtain Authorization for, nor process a sale on any Card that Merchant is not authorized to use. Processing Merchant’s own Card is grounds for immediate termination.

2.17 Duplicate Transactions.

Merchant shall not deposit duplicate Card transactions. Merchant shall be debited for any duplicate Card transactions and shall be liable for any Chargebacks which may result therefrom.

2.18 Deposit of Fraudulent Transactions.

Merchant must not knowingly submit and Servicer must not knowingly transmit any transaction that is illegal or that the Merchant should have known was illegal. Additionally, a Merchant must not deposit any transaction that is known to be either fraudulent or not authorized by the Cardholder. Merchant shall not accept or deposit any fraudulent Card transaction and may not present for processing or credit, directly or indirectly, a Card transaction which originated with any other merchant or any other source. Merchant shall not deposit Card transactions evidencing sales that were solicited by outbound telemarketing activities. If Merchant deposits any such transactions, Servicers may hold funds and/or demand a Reserve Account. Perpetrators of fraudulent Card transactions will be referred to law enforcement officials and may be subject to Card Association penalties.

2.19 Collection of Pre-Existing Debt.

Merchant shall not present any Card transaction representing the refinancing of an existing obligation of a Cardholder including, but not limited to obligations (i) previously owed to Merchant, (ii) arising from the dishonor of a Cardholder’s personal check, and/or (iii) representing the collection of any other pre-existing indebtedness, including collection of delinquent accounts on behalf of third parties.

2.20 E-Commerce Transactions.

(a) Merchant must display the address of its permanent establishment on its website. This address should include the country of domicile and should be located either on the checkout screen used to present the total purchase amount to the Cardholder or within the sequence of web pages the Cardholder accesses during the checkout process. Merchant must also display approved Card Association signage.

(b) Merchant must obtain an authorization on the Card transaction date, except when goods are shipped and then the authorization may be obtained up to seven (7) calendar days prior to shipping goods. A detailed transaction receipt must be generated for each Card transaction. See the Rules for details. A transaction receipt must be available upon request and Merchant must communicate instructions for such request on its website. Merchant may deliver the transaction receipt electronically or by paper. Merchant must attempt to obtain the Expiration Date from the Card and forward it as part of the authorization request.

(c) Merchant’s website must communicate its refund policy to the Cardholder and require the Cardholder to select a “click-to-accept” or other affirmative buttons to acknowledge the policy. The terms and conditions of the purchase must be displayed on the same screen view as the checkout screen that presents the total purchase amount, or within the sequence of website pages the Cardholder accesses during the checkout process

(d) Merchants classified under MCC’s (4829, 5967, 6051, and 7995), are not eligible for E-commerce transactions.

2.21 Settlement of Transactions.

Servicers shall accept from Merchant all valid Sales Drafts deposited by Merchant under the terms of this Agreement and shall present the same to the appropriate Card Issuers for collection against Cardholder accounts. Settlement of all Sales Drafts is subject to this Agreement and the Rules. Servicers shall provisionally credit the value of collected, valid Sales Drafts to Merchant’s Account and reserve the right to adjust amounts so credited to reflect the value of Chargebacks, fees, penalties, late submission charges, the difference in currency exchange if the Chargeback amount is greater than the original sale, issuer claims, and items for which Servicers did not receive final payment for any reason. Servicers may refuse to accept any Sales Draft or revoke its prior acceptance of a Sales Draft in the following circumstances: (a) the transaction giving rise to the Sales Draft was not made in compliance with all the terms and conditions of this Agreement; (b) the Cardholder disputes his liability to Servicers for any reason, including but not limited to those Chargeback rights enumerated in the Rules; (c) the transaction giving rise to the Sales Draft was not directly between Merchant and Cardholder, or (d) the transaction is outside the parameters indicated on the Merchant Application. Merchant will pay Servicers for any amount previously credited to Merchant for a Sales Draft not accepted or later revoked by them.

2.22 Processing Limits.

Servicers may limit the dollar amount of Sales Drafts that it will process for Merchant. This limit may be changed by Servicers from time to time with or without notice to Merchant. If Merchant exceeds the limit established by this Agreement, Servicers may suspend processing, charge over limit fees, hold the funds over the cap and/or return to Merchant all Sales Drafts evidencing funds over the cap.

2.23 Endorsement.

The presentment of Sales Drafts to Servicers for collection and payment is Merchant’s agreement to sell and assign its right, title and interest in each Sales Draft completed in conformity with Servicers’ acceptance procedures and shall constitute an endorsement by Merchant to Servicers of such Sales Drafts. Merchant hereby authorizes Servicers to supply such endorsement on Merchant’s behalf. Merchant agrees that this Agreement is a contract of financial accommodation within the meaning of Bankruptcy Code 11 U.S.C. Section 365, as amended from time to time. Merchant acknowledges, in accordance with Section 1.09 above, that its obligation to Servicers for all amounts owed under this Agreement arise out of the same transaction as Servicers obligation to deposit funds to the Account.

2.24 Transmission Method.

If Merchant utilizes electronic Authorization and/or data capture services, Merchant will enter data related to a Card transaction into a computer terminal or magnetic stripe reading terminal no later than the close of business on the date the Card transaction is completed. If Merchant provides its own electronic terminal or similar device, such terminals must meet Servicers requirements for processing Card transactions. Information regarding a Card transaction transmitted with a computer or magnetic stripe reading terminal will be transmitted by Merchant to Servicers in the form Servicers from time to time specify or as required under the Rules. The means of transmission indicated in the Merchant Application shall be the exclusive means utilized by Merchant until Merchant has provided Servicers with at least thirty (30) days prior written notice of Merchant’s intention to change the means of such delivery or otherwise to alter in any material respect Merchant’s medium of transmission of data to Servicers.

2.25 Prohibited Payments.

Unless specifically authorized in writing by Servicers, Merchant shall collect or attempt to collect from a Cardholder amounts owed for any Card transaction and shall promptly deliver to Servicers any payment Merchant receives, in whole or in part from a Cardholder for any Card transaction, together with the Cardholder’s name and account number and any correspondence accompanying the payment.

2.26 Chargebacks.

All Chargebacks are due upon presentation to Merchant. In the case of a failure to pay a Chargeback upon such presentment, in addition to any other remedies which may be exercised by Servicers, Merchant agrees to pay a late charge of one and one-half percent (1.5%) per month or portion thereof, or the highest amount allowable by law, whichever is less, on all unpaid Chargebacks. Servicers are authorized to deduct the amount of any Chargebacks and fees from any settlement amounts due to Merchant or from the Reserve Account, if any, or collect by any other means, including by debit to Account. Merchant acknowledges and agrees that it is bound by the Rules with respect to any Chargeback. Merchant further acknowledges that it is solely responsible for providing Servicers with any available information to re-present a Chargeback and that, regardless of any information it provides or does not provide Servicers in connection with a Chargeback, or any other reason, Merchant shall be solely responsible for the liability related to such Chargeback. Merchant understands and agrees that Card transactions are subject to Chargeback for a variety of reasons under the Rules, or if Merchant has breached this Agreement, including without limitation, for the following reasons:

(a) The Sales Draft is illegible, not signed by the Cardholder or has not been presented to Servicers within the required time-frames.

(b) The Sales Draft does not contain the Imprint of a valid unexpired Card.

(c) A valid authorization number has not been correctly and legibly recorded on the Sales Draft.

(d) The Sales Draft is a duplicate of a prior Card transaction or is the result of two or more Card transactions generated for a single sale.

(e) The Cardholder alleges that he or she did not participate in the sale, authorize the use of the Card, receive goods or services purchased, or receive a required credit adjustment, or disputes the quality of the goods or services purchased.

(f) The price of goods or services on the Sales Draft differs from the amount which Merchant presents for payment.

(g) The Card transaction results from the Internet, mail, phone or preauthorized order and the Cardholder disputes entering into or authorizing the Card transaction or the Card transaction has been made on an expired or non-existing account number.

(h) Servicers reasonably believe in their discretion that Merchant has violated any provision of this Agreement.

(i) Servicers reasonably determine that the Card transaction is not bona fide or is subject to any claim of illegality, cancellation, rescission, or offset for any reason whatsoever, including without limitation, negligence, fraud or dishonesty on the part of Merchant or Merchant’s agents or employees.

(j) Merchant fails to provide a Sales Draft or a legible copy thereof to Servicers in accordance with this Agreement.

(k) Merchant shall not initiate a Card transaction in an attempt to collect a Chargeback.

2.27 Effect of Termination.

(a) In the event of termination for any reason, Merchant expressly authorizes Servicers to withhold settlement of Card transactions and other payment transactions of Merchant in the process of being settled.

(b) At the discretion of Servicers, collected funds may be placed in a Reserve Account until Merchant pays any equipment and processing termination fees and any outstanding charges, losses or amounts for which Merchant is liable under this Agreement. Further, Servicers reserve the right to require Merchant to deposit additional amounts in the Reserve Account based upon Merchant’s processing history and/or anticipated risk of loss to Servicers into the Reserve Account. The Reserve Account shall be maintained for a minimum of two hundred seventy (270) days after the termination date or the date of the oldest Card transaction (or longer depending on Merchant’s product and business practices), and for a reasonable time thereafter during which Cardholder disputes may remain valid under the Rules or during which Merchant may have outstanding obligations to Servicers. Any balance which remains in the Reserve Account after such period will be returned to Merchant. Servicers may debit the Reserve Account for all amounts owed by Merchant under this Agreement.

(c) Merchant expressly acknowledges that MATCH (formerly known as the Combined Terminated Merchant Files or "CTMF") is a file maintained by MasterCard and accessed by VISA, and the Consortium Merchant Negative File, maintained by Discover Network, containing the business names and the identification of principals of merchants which have been terminated for one or more reasons specified in the Rules. Such reasons include, but are not limited to: fraud, counterfeit paper, unauthorized Card transactions, excessive Chargebacks, retrievals or highly suspect activity. Merchant acknowledges and agrees that Servicers are required to report Merchant and the names and identification of its principals to MATCH and the Consortium Merchant Negative File if Merchant is terminated for any such reason. Merchant consents to such reporting to the Card Associations by Servicers and waives any claims which Merchant may raise against Servicers as a result of such reporting. Merchant also consents to Servicers reporting incidents of fraud, counterfeit paper, unauthorized Card transactions, excessive Chargebacks, retrievals or highly suspect activity to any governmental authorities.

(d) Upon termination for any reason, Merchant will immediately cease requesting Authorizations and will cease transmitting Sales Drafts to Servicers which are made after the termination date.

(e) Following termination, Merchant shall upon request provide Servicers with all original and electronic copies of Sales Drafts and Credit Vouchers to be retained as of the date of termination.

(f) Effective immediately upon termination whether by Merchant or by Servicers, Merchant must cease the use of all Card Association signage which indicates the acceptance of those Cards under this Agreement.

ARTICLE III. DEBIT CARD SERVICES

The following terms and conditions govern Debit Card processing services provided by Servicers to Merchant, regardless of whether Merchant applies to receive such services at the time of its initial application for electronic payment services, or subsequently elects to receive such services from Services.

3.01 Services.

Servicers shall sponsor Merchant for membership in the Debit Card network that Merchant has selected. Merchant acknowledges that sponsorship does not guarantee acceptance. Servicers shall process and settle Merchant’s Debit Card transactions.

3.02 Debit Fees.

Merchant agrees to pay Servicers the fees for Debit Card transactions as set forth in the Merchant Application as well as the following fees. Payment and modification of fees will be handled as set forth in Article I of this Agreement. Merchant acknowledges that in addition to the Debit Card transaction fee set forth on the Merchant Application, each Debit Card transaction will also be charged the Payment Network fee on a per transaction and per network basis for the Payment Networks accessed and utilized by Merchant. These fees are subject to change from time to time to conform to the interchange provisions set forth by the Payment Networks.

3.03 Merchant Obligations.

(a) Unless otherwise authorized by Servicers, Merchant shall utilize Servicers’ compatible terminals, PIN pads or systems capable of processing all Automatic Clearing House (ACH) Debit Card transactions as well as online Debit Card transactions.

(b) In connection with Debit Card transactions, Merchant shall comply with all Rules of the applicable Payment Network.

(c) Merchant shall be responsible for all paper copies of Debit Card transactions, in accordance with the applicable Payment Network rules. Within one (1) business day of the day of the Debit Card transaction, Merchant shall balance each location to the system for each business day that such location is open.

(d) Merchant shall be responsible for all telephone message unit costs, if any, which may be incurred by Merchant for the Debit Card services as well as expenses related to the installation of and training in the use of terminals.

(e) Merchant shall be responsible for entering data correctly. If an entry is made incorrectly, Servicers shall use their reasonable efforts to assist Merchant in correcting the entry, but cannot guarantee that the effort will be successful.

3.04 PIN Security.

(a) Merchant is expressly prohibited from requesting PIN numbers verbally or in writing as a condition of a sale. Merchant may not document or retain PIN numbers in any fashion at any time.

(b) Point of sale (“POS”) terminals must be positioned so as to be reasonably secure from observation by third parties. Merchant’s security cameras must not be able to view the PIN pad. Pin Entry Device (PED) shielding will be considered as one of the possible prevention methods.

(c) The operational placement and use of the Tamper Resistant Security Module (TRSM) must be within its intended physical and logical environment. POS terminals designed for indoor use are not suitable for outside use. The modification of TRSMs from their original manufactured specifications must be restrained.

ARTICLE IV. EQUIPMENT PLACEMENT AGREEMENT

4.01

By checking the box(es) in the Merchant Application, Merchant has accepted the described point of sale terminal equipment (the “Equipment”) under the following terms and conditions:

(a) Merchant agrees that the Equipment is the property of TMS, is being licensed to Merchant, and must be returned in good and working condition within ten (10) days of the termination or expiration of this Agreement. If the Equipment is not returned within ten (10) days, Merchant agrees to pay TMS the equipment value, which can be found at http://www.merchantsupport.info/disclosure/TMS.html.

(b) If the box referencing rental of the Equipment is checked in the Merchant Application, Merchant shall pay the stated license fee on the Equipment on a monthly basis, plus the applicable sales use taxes, beginning the month the Equipment is received by Merchant and continuing until the Equipment is returned by Merchant or this Agreement is terminated or expires.

(c) Merchant agrees to be responsible for any damage to the Equipment as a result of misuse or negligence.

(d) Merchant agrees to indemnify and hold Servicers harmless from and against any and all liabilities, losses, claims, damages, disputes, offsets, claims or counterclaims of any kind in any way related to the use (or misuse) of the Equipment. This includes any damage to the Equipment resulting from an act of nature, fire, or theft, or from misuse or negligence by Merchant or its agents. Merchant also agrees to pay TMS a shipping/handling charge for each delivery of replacement Equipment, regardless of the reason, in the amount provided at http://www.merchantsupport.info/disclosure/TMS.html.

Notwithstanding the prior paragraph, if Merchant subscribes to TMS’ Merchant Advantage Benefit Program, it will not be responsible for the failure of Equipment for any reason, so long as such Equipment is returned to TMS. Under this program, TMS will also provide overnight replacement of the Equipment free of shipping/handling charges after remote troubleshooting efforts are unsuccessful. Comparable replacement Equipment may be new or refurbished, or a different brand or model. Replacements are limited to four (4) in any consecutive twelve (12) month period.

ARTICLE V. WIRELESS SERVICE PROVISIONS

5.01

TMS has acquired the right to resell and/or sublicense certain wireless data communication services offered by certain cellular telephone and data networks (the “Wireless Networks”), in order to allow merchants to capture and transmit to Servicers wireless Card transactions on wireless POS terminals and accessories (the “Wireless Equipment”). The Wireless Networks are provided by third party vendors and, as such, the Servicers are in no way responsible for providing, maintaining, servicing or supporting such networks. In the event that Merchant utilizes Wireless Equipment and Wireless Services for Card transactions, it agrees to utilize such Wireless Networks and Wireless Equipment only as permitted by the third party vendors and in accordance with applicable laws, regulations, requirements, and rulings, as such may be updated from time to time. In addition, Merchant agrees to look exclusively to the applicable third party vendor of the Wireless Networks and/or Wireless Equipment for any and all warranties relating thereto and agrees that Servicers have not provided any such warranties. Servicers shall not be responsible for transmission errors, interruptions in service, corruption of data or for the security of data during any transmission. In addition to any other provision of this Agreement, the Wireless Services will terminate immediately upon termination of the agreement between TMS and the third party vendor, upon discontinuance of the delivery of Wireless Services by the third-party vendor, or at such time as the third party vendor or TMS is prevented from providing the Wireless Services by reason of any laws, regulations, requirements, rulings or notices issued by any governmental authority.

ARTICLE VI. MERCHANT ADVANTAGE BENEFIT PROGRAM.

6.01

TMS offers certain programs under which it provides overnight replacement of POS terminals that fail to operate, shipment of replacement POS terminal receipt paper rolls/supplies, and web-based access to the merchant’s Card transaction data, 24 hours per day, 7 days per week. A detailed explanation of these programs, and the related pricing can be found at http://www.myaccountadvantage.com.

ARTICLE VII. GLOSSARY

7.01 As used in this Agreement, the following terms shall have the following meanings:

(a) “Account”: An account at a banking institution designated by Merchant as the account to be debited and credited by Servicers for Card transactions, fees, Chargebacks and other amounts due under this Agreement or in connection with this Agreement.

(b) “Authorization”: Approval by, or on behalf of, the Card Issuer to validate a Card transaction for a merchant or another affiliate bank. An authorization only indicates the availability of the Cardholder’s credit limit at the time the Authorization is requested.

(c) “Bankruptcy”: A case under Title 11 of the United States Code, as amended from time to time.

(d) “Card”: See either Credit Card or Debit Card.

(e) “Card Association”: Any entity formed to administer and promote Cards, including without limitation, VISA, MasterCard, Discover, JCB, AMEX and any applicable Payment Network.

(f) “Card Issuer”: The Card Association or bank institution that issues a Card to an individual.

(g) “Cardholder”: The individual whose name is embossed on a Card and any authorized user of such Card.

(h) “Card Not Present Transaction” occurs when the Card is not present at the point of sale, including Internet order, mail order or telephone order Card sales.

(i) “Chargeback”: The procedure by which a Sales Draft or another indicia of a Card transaction (or disputed portion) is returned to the Servicers.

(j) “Credit Card”: A valid Card authorizing the Cardholder to buy goods or services on credit and bearing the service mark of VISA, MasterCard, Discover Network, JCB, Amex or other Card Association specified by TMS.

(k) “Credit Voucher”: Evidence of a return of goods or services by Merchant to a Cardholder, or other refund made by Merchant to a Cardholder, regardless of whether such evidence is in paper or electronic form or otherwise, all of which must conform to the Rules.

(l) “Debit Card”: A PIN Debit or Non-PIN Debit Card.

(m) “Non-PIN Debit Card”: A Debit Card with a VISA, MasterCard or Discover Network mark that is tied to a Cardholder’s bank account or a prepaid account and which is processed without the use of a PIN.

(n) “Payment Network”: A Debit Card network such as, but not limited to, Accel, AFFN, Interlink, MAC, Maestro, NYCE, Pulse, Star, and Tyme.

(o) “PIN”: A personal identification number entered by a Cardholder to submit a PIN Debit Card transaction.

(p) “PIN Debit Card”: A Debit Card used at a merchant location by means of a Cardholder-entered PIN in the merchant PIN Pad. PIN Debit Cards bear the marks of ATM networks.

(q) “Reserve Account”: An account established using merchant funds and managed by Servicers to protect against actual or contingent liability arising from Chargebacks, adjustments, fees and other charges due to or incurred by Servicers.

(r) “Rules”: The rules, regulations, releases, interpretations, guidelines and other requirements (whether contractual or otherwise) imposed or adopted by any Card Association. Without limitation, the Rules include VISA International Operating Regulations and the MasterCard Rules.

(s) “Sales Draft”: Evidence of a purchase of goods or services by a Cardholder from Merchant using a Card, regardless of whether such evidence is in paper or electronic form or otherwise, all of which must conform to the Rules.

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BANNER AD DESIGN - Terms and Conditions

The use of banner ad design services from Acera Technologies [hereafter referred to as "Acera" or "The Company"] constitutes agreement to these terms.

1. Turnaround Time.

Our standard turnaround time on web banner ads is 3-5 business days. Business Days are considered to be Mondays through Fridays excluding any federal U.S. holidays. Turnaround time starts once we have received all necessary materials required to complete the project including but not necessarily limited to ad copy, logos, unique photos, stock photos, specific fonts, and information form submissions. If Client wishes to have a faster turnaround time, they must purchase Expedited (2 business day) or Priority (1 business day) turnaround for each item/package they wish to have rush ordered.

2. Changes.

Client may request changes including but not necessarily limited to colors, fonts, arrangement of elements, positioning, and adjustment to text (spelling, punctuation, or slight textual modifications). We do not allow changes in banner size or completely different text or concept. We also do not permit adding animation to non-animated banners. Those types of changes are considered to be for an entirely different banner/banner package and are subject to standard pricing. Each pass of changes has a turnaround of approximately 1 business day (12-36 hours), based on current workload. Additional passes of changes are at Acera Technologies discretion.

3. Refund/Return Policy.

Since all work we conduct is subjective, we do not offer refunds of any kind for any work that we have already conducted and delivered. Cancellation requests must be made within 48 hours of purchase to have us consider offering a refund and there must be a clear reason for cancellation. Refunds granted will be in the amount paid, fewer service fees required to conduct your transaction, less payment for time used by administrative and or sales staff while organizing or collecting your order at the rate of $75.00 per hour with a 1-hour minimum.

If for some reason you are not satisfied with the banner(s) we create, please submit your change requests in writing and we will attempt to satisfy you as much as we deem possible for the amount paid based on a rated minimum of $75.00 per hour. There needs to be a clear reason the purchaser does not like the banner we create and we ask that you give us ample opportunity to correct it to your satisfaction.

We do not issue refunds due to technical issues with delivery, or if you are unable to provide basic information needed to create your banner. Please contact us if you are unclear if your project falls within our guidelines BEFORE you purchase. We will happily discuss your project and give you a custom quote before you buy.

All materials requested by Acera Technologies to complete a project is the sole responsibility of the Client and is clearly defined in our banner information form delivered to the Client upon purchase.

* All refund requests for completed design services are handled at the sole discretion of Acera Technologies.

4. Source Files.

Source files including Adobe Photoshop PSD and Adobe Flash FLA files are provided to clients only if purchased by the client. We will not send source files to any third party.

5. Project Usage.

We will deliver banners to third-party pay-per-click (PPC), cost-per-mile (CPM), banner exchange, or client websites only if contracted by the client to perform such services. Banner purchase does not imply such contract. Any costs associated with any such campaign are the responsibility of the client.

6. Fitness for Particular Use.

Unless stated specifically in the item description, items are not guaranteed for any particular use. If banner must follow certain specifications for client's intended use, the client must provide these specs on the information submission form. We will make every attempt to comply with these specs within reason. For Google AdWords ready banners, we follow Google's published specs for that size ad unit as of the date of production. We are not responsible for any later changes made by Google to their required specs.

7. Right of Refusal.

We reserve the right to accept or reject any project at any time. We do not do projects for adult/pornography/gambling services. By purchasing an item from us, the client acknowledges this stipulation. If we receive an order for a project including but not limited to these services, the client will be immediately issued a full refund, and the client will consider the matter closed. We reserve the right to refuse service to anyone. Any project material that, in our judgment, is obscene or threatening is prohibited and will be rejected with or without notice.

8. Copyright.

Copyright ownership of any banners we produce is jointly held by the client and Acera Technologies. Client may use purchased banners in any manner that they see fit. We also reserve the right to use these banners and any portion thereof in any manner we see fit including our own marketing, print materials, websites, as well as modification and subsequent use in other client projects. Client logos, trademarks, and unique images will not be used in any other client project.

Use of our services to infringe upon any copyright or trademark is prohibited. This includes but is not limited to unauthorized copying of music, books, photographs, or any other copyrighted work. The offer of sale of any counterfeit merchandise of a trademark holder will result in the immediate termination of your account.

9. Indemnification.

Client agrees that it shall defend, indemnify, save and hold Acera harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorney's fees asserted against Acera, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless Acera against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with Acera; (2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products sold to clients from Acera's server.

10. Arbitration.

By using any Acera services, you agree to binding arbitration. If any disputes or claims arise against Acera or its subsidiaries, such disputes will be handled by an arbitrator of Acera's choice. All decisions rendered by that arbitrator will be binding and final. You are also responsible for any and all costs related to such arbitration.

11. Disclaimer.

Acera shall not be responsible for any damages your business may suffer. Acera makes no warranties of any kind, expressed or implied for services we provide. Acera disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, no deliveries, wrong delivery, and any and all service interruptions caused by Acera and its employees.

12. Disclosure to law enforcement.

Acera may disclose any subscriber information to law enforcement agencies without further consent or notification to the subscriber upon lawful request from such agencies. We will cooperate fully with law enforcement agencies.

13. Delivery.

Banners will be delivered to the client via email within the Turnaround Time selected by the client.

14. Client Requirements.

Acera requires that the following materials be submitted in order to create the banners purchased including but not necessarily limited to ad copy, logos, unique photos, stock photos, specific fonts, and information form submissions. Failure to submit these necessary items can result in delays in the banner creation process.

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Acera Technologies provides Custom Web Design including Responsive Websites and eCommerce Storefronts, Web Hosting, Website Maintenance,
Search Engine Optimization (SEO), Social Network Marketing, Graphic Design, and other branding and online marketing services.
We serve customers worldwide and nationwide
as well as local clients across Northern Michigan including Gaylord, Petoskey, Charlevoix, Cheboygan, Traverse City, Kalkaska, and Alpena.

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Acera Technologies - Copyright ©1997-2016 AceraTechnologies.com. All Rights Reserved.