Terms of Service

By accepting this Agreement by: (a) clicking a box indicating acceptance; (b) executing an Order Form that references this Agreement; or (c) using the Services on a free trial basis, Customer agrees to the terms of this Agreement.

If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its Affiliates to this Agreement, and the term “Customer” shall refer to such entity and its Affiliates. If the individual accepting this Agreement does not have such authority or does not agree with the terms and conditions of this Agreement, such individual must not accept this Agreement and may not use the Services.

If Customer is provided with access to the Services on a free trial basis, the section of this Agreement entitled “Free Trial Services” will govern such access.

The Services may not be accessed for the purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Transax’s competitors are prohibited from accessing the Services, except with Transax’s prior written consent.

This Agreement is effective as of the date Customer accepts this Agreement.

1. Definitions

In addition to capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth below:

1.1. Affiliate

“Affiliate” means an entity that controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership of control of more than 50% of the voting. Interests of the subject entity.

1.2. Customer

“Customer” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (while they remain Affiliates) which have entered into Order Forms.

1.3. Customer Data

“Customer Data” means electronic data and information submitted by or for Customer to the Services.

1.4. Customer Marks

“Customer Marks” means Customer’s trademarks, tradenames, service marks, and logos.

1.5. Documentation

“Documentation” means all specifications, user manuals, and other materials relating to the Services and provided or made available by Transax to Customer, as may be modified by Transax from time to time.

1.6. Free Trial Services

“Free Trial Services” means Services that Transax makes available to Customer on a free trial basis, including as part of an evaluation or proof of concept. Free Trial Services exclude Purchased Services.

1.7. Order Form

“Order Form” means each written order or online order specifying the Services to be provided under this Agreement and applicable Fees, that is entered into between Customer and Transax. By entering into an Order Form, a Customer Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

1.8. Purchased Services

“Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Order Form, as distinguished from Free Trial Services.

1.9. Reports

“Reports” means analyses and recommendations for Customer designed to improve its compliance with the applicable standards specified in the Services as may be provided by Transax via the Services from time to time.

1.10. Services

“Services” means the products and services that are ordered by Customer under an Order Form or provided to Customer under a free trial and made available online by Transax on a subscription basis, including any associated offline components.

1.11. User

“User” means, in the case of an individual accepting this Agreement on their own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who Customer authorizes to use the Services pursuant to Customer’s rights under this Agreement, for whom Customer has purchased a subscription (or, for Free Trial Services, for whom Services have been provisioned by Transax), and to whom Customer (or, when applicable, Transax at Customer’s request) has supplied a user name and password. Users may include, for example, employees, consultants, contractors and agents of Customer.

1.12. Usage-Based Services

“Usage-Based Services” means optional features or functionality within the Services that are billed based on actual consumption or usage volume, rather than a fixed periodic subscription Fee. Usage-Based Services, their per-unit pricing, and applicable billing terms are described in the applicable Order Form, Fee Schedule, or within the Platform at the time of activation.

1.13. Fee Schedule

“Fee Schedule” means the schedule of per-unit prices for Usage-Based Services, as published by Transax and made available to Customer through the Platform or upon request. Transax may update the Fee Schedule from time to time upon thirty (30) days’ prior written notice to Customer. The then-current Fee Schedule at the time of usage shall govern.

1.14. Credit Score Retrieval Services

“Credit Score Retrieval Services” means the optional Usage-Based Service through which Transax provides Customer with consumer credit scores in connection with finance application submissions processed through the Connected Commerce platform. Credit Score Retrieval Services are subject to the Credit Usage Agreement executed by Customer and are billed as a Usage-Based Service at the per-retrieval rate set forth in the applicable Order Form or Fee Schedule.

2. Transax Responsibilities

2.1. Purchased Services

Transax will: (a) make the Purchased Services available to Customer under the terms of this Agreement, applicable Order Form(s) and the Documentation; (b) provide support for the Purchased Services in accordance with Transax’s then-current standard support policy; and (c) comply with laws and government regulations applicable to Transax’s provision of the Purchased Services to its customers, subject to Customer’s and Users’ use of the Purchased Services in accordance with this Agreement, applicable Order Form(s) and the Documentation.

2.2. Security and Protection of Customer Data

During the term of this Agreement, Transax will implement and maintain appropriate administrative, physical, and technical security measures designed to protect the security, confidentiality, and integrity of, and prevent the unauthorized disclosure of, Customer Data.

2.3. Reports

As part of the Services, Transax may from time to time provide Reports to Customer via the Services. Customer may access and use such Reports for its own internal business purposes in accordance with the terms and conditions of this Agreement.

2.4. Implementation Services

Where the parties have agreed to Transax’s provision of certain implementation services (“Implementation Services”), the details of such Implementation Services will be set out in an Order Form or a mutually executed statement of work (“SOW”). The Order Form or SOW, as applicable, will include: (a) a description of the Implementation Services; (b) the schedule for the performance of the Implementation Services; and (c) the Fees applicable for the performance of the Implementation Services.

2.5. Free Trial Services

If Customer is approved by Transax for Free Trial Services, Transax will make the applicable Free Trial Services available to Customer free of charge until the earlier of: (a) the end of the free trial period communicated by Transax to Customer; or (b) the start date of any Purchased Services subscriptions ordered by Customer for such Service(s); or (c) termination by Transax in its sole discretion.

Any Customer Data Customer enters into the Free Trial Services will be permanently lost unless Customer purchases a subscription to the same Services as those covered by the Free Trial Services or exports such Customer Data before the end of the trial period.

Notwithstanding the “Representations, Warranties and Disclaimers” section and “Indemnification by Transax” sections below, Free Trial Services are provided “as-is” without any warranty and Transax shall have no indemnification obligations nor liability of any type with respect to the Free Trial Services unless such exclusion of liability is not enforceable under applicable law in which case Transax’s liability with respect to the Free Trial Services shall not exceed $1,000.00.

3. Use of Services

3.1. User Access

Each User will use a unique username and password to access the Services. Users may only access the Services during one (1) concurrent login session. The unique usernames and passwords cannot be shared or used by more than one individual User to access the Services. Customer is solely responsible for all activities that occur under User accounts.

3.2. Customer Responsibilities

Customer will: (a) use the Services only in accordance with this Agreement, Order Forms, Documentation and applicable laws and government regulations; (b) be responsible for Users’ compliance with this Agreement, Order Forms and Documentation; (c) be responsible for the accuracy, quality and legality of Customer Data, including the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Services; and (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Transax promptly of any such unauthorized access or use.

3.3. Use Restrictions

Customer will not, and will ensure its Users will not: (a) make the Services available to anyone other than Customer or its Users; (b) modify, adapt, alter or translate the Services; (c) sublicense, lease, sell, resell, rent, loan, or distribute the Services; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine the source code of the Services; (e) interfere in any manner with the operation of the Services; (f) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material; (g) modify, copy, or disclose any part of the Services; (h) access or use the Services to build a similar or competitive product or service; (i) attempt to access the Services through any unapproved interface; (j) remove, alter, or obscure any proprietary notices of Transax or its licensors; or (k) otherwise use the Services in any manner that exceeds the scope of use permitted under applicable Order Forms.

3.4. Third-Party Integrations

The Services may integrate with certain third-party websites and applications. Third-Party Services shall be governed solely by the terms and conditions applicable to such Third-Party Services, as agreed to between Customer and the Third-Party Services providers. Transax does not endorse or support and is not responsible for Third-Party Services, including without limitation, the privacy and data security policies and practices related to Third-Party Services.

4. Fees and Payments

4.1. Fees

Customer will pay to Transax all fees set forth in Order Forms (the “Fees”). Except as otherwise set forth in this Agreement or an Order Form, payment obligations are non-cancelable, and Fees paid are non-refundable. Transax may increase the Fees upon renewal of each Order Form subscription term by providing written notice to Customer at least forty-five (45) days prior to the commencement of the applicable renewal subscription term.

4.2. Invoices and Payments

Except as otherwise set forth in the relevant Order Form, Transax will invoice Customer for all Fees annually in advance. Unless otherwise stated in the Order Form, full payment for invoiced Fees is due within 30 days after the invoice date. Usage-Based Fees shall be invoiced monthly in arrears based on actual usage during the preceding calendar month.

4.3. Late Payments

Customer will be responsible for reasonable costs and expenses incurred by Transax in the collection of any overdue Fees. If any Fees are 15 days or more overdue, Transax may, without limiting its other rights and remedies, immediately suspend Services until such amounts are paid in full, provided that Transax will use commercially reasonable efforts to give Customer at least 5 days’ prior written notice that its account is overdue before suspending Services.

4.4. Payment Disputes

Transax will not exercise its rights under the “Late Payments” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

4.5. Taxes

The Fees do not include taxes, duties, levies or similar government assessments of any kind, including value-added, sales, use or withholding taxes assessable by any jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder.

4.6. Usage-Based Service Activation and Billing

(a) Activation and Deactivation. Certain Services may be designated by Transax as Usage-Based Services that Customer may activate or deactivate through the Platform. Activation of a Usage-Based Service constitutes Customer’s agreement to the applicable per-unit pricing as displayed at the time of activation.

(b) Usage Reporting. Transax will make usage records available to Customer through the Platform. Customer may dispute Usage-Based Fees in good faith by providing written notice to Transax within thirty (30) days of the applicable invoice date.

(c) Suspension. Without limiting Transax’s rights under Section 4.3, Transax may suspend any Usage-Based Service for which associated Usage-Based Fees are more than fifteen (15) days overdue.

5. Term and Termination

5.1. Term

This Agreement will begin on the effective date of the first Order Form between the Parties and will continue for as long as any Order Form remains in effect, unless earlier terminated in accordance with this Agreement (the “Term”).

5.2. Term of Order Forms

The initial term of each Order Form will begin on effective date of such Order Form and continue for the subscription term set forth therein. Except as set forth in such Order Form, each Order Form will automatically renew for successive renewal terms equal in length to the initial term, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current subscription term.

5.3. Termination for Cause

Either party may terminate this Agreement immediately upon notice to the other party if: (a) the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach; or (b) the other party becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors.

5.4. Effect of Termination

Upon the earlier of expiration or termination of this Agreement, the rights and licenses granted to Customer hereunder will immediately terminate, Customer will cease use of the Services and Documentation, and Customer will return or destroy all copies of the Documentation in its possession or control. Termination or expiration will not relieve Customer of its obligation to pay all Fees that accrued prior to such expiration or termination.

5.5. Return of Customer Data

Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Transax will make Customer Data available to Customer. After such 30-day period, Transax will have no obligation to maintain any Customer Data, and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.

5.6. Survival

The sections titled “Services Fees and Payments,” “Effect of Termination,” “Survival,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” and “Miscellaneous” will survive any termination or expiration of this Agreement.

6. Proprietary Rights and Licenses

6.1. The Services

Transax, its Affiliates and licensors reserve all right, title and interest in and to the Services and Documentation, including all of their related intellectual property rights, and any and all related and underlying technology and documentation, and any derivative works, modifications, or improvements of any of the foregoing. No rights are granted to Customer hereunder other than as expressly set forth herein.

6.2. Customer Data

The Customer Data are owned exclusively by Customer. Customer grants to Transax, its Affiliates and applicable contractors a non-exclusive, worldwide, royalty-free license to host, copy, use, display and transmit Customer Data as appropriate for Transax to provide and ensure proper operation of the Services to Customer.

6.3. Feedback

Customer hereby grants Transax a perpetual, irrevocable, royalty-free and fully paid right to use and otherwise exploit in any manner any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer related to the Services or other Transax products or services.

6.4. Aggregated Information

Transax may aggregate, collect and analyze information relating to the provision, use and performance of the Services and may use such information to develop and improve the Services and other Transax offerings, including disclosure of such information to third parties in an aggregated and anonymized format such that no Customer nor any individual or household can be identified.

6.5. Customer Marks

The Customer Marks are the exclusive property of Customer. Transax may use Customer’s name and Customer Marks in its Customer list (including on Transax’s website, social media and in sales and marketing materials) in the same way it uses the names of its other customers.

7. Confidentiality

7.1. Definition of Confidential Information

“Confidential Information” shall mean any information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), either directly or indirectly in writing, orally, or by inspection of tangible objects (a) that the disclosing party identifies as confidential or proprietary; or (b) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself.

7.2. Protection of Confidential Information

All Confidential Information disclosed by Disclosing Party shall remain the property of the Disclosing Party. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement.

7.3. Compelled Disclosure

Either party may disclose Confidential Information to the extent required by law, provided that the Receiving Party gives the Disclosing Party reasonable advance notice of such required disclosure and cooperates with the Disclosing Party so that the Disclosing Party may obtain appropriate confidential treatment for such Confidential Information.

8. Representations, Warranties and Disclaimers

8.1. Representations

Each party represents that it has validly entered into this Agreement and has the legal power to do so.

8.2. Transax Warranties

Transax warrants that during the applicable subscription term Transax will not: (a) materially decrease the overall functionality of the Services; or (b) materially decrease the overall security of the Services.

8.3. Warranty Remedies

Customer will notify Transax of any non-conformance of the Services under a warranty above within 30 days. Provided that Customer notifies Transax within such time, Transax will use commercially reasonable efforts to correct the non-conformance at no additional charge. If Transax is unable to correct such non-conforming Services as warranted within a reasonable time, Customer will be entitled to terminate the applicable Order Form and receive a prorated refund of any prepaid, unused Fees covering the remainder of the subscription term.

8.4. Disclaimers

(a) Except as expressly provided herein, the Services and Reports are provided “as is,” neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law.

(b) Customer acknowledges and agrees that Transax is not liable, and Customer agrees not to seek to hold Transax liable, for the conduct of third parties, including providers of the Third-Party Services, and that the risk of injury from such Third-Party Services rests entirely with Customer.

(c) From time to time, Transax may offer new “beta” features or tools with which Customer may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Transax’s sole discretion.

(d) Customer acknowledges and agrees that the Services and the Reports provided by Transax to Customer are intended as recommendations only and do not constitute any warranty or guaranty that Customer, by following such recommendations, will be fully compliant with any applicable standards contemplated by the Services.

9. Mutual Indemnification

9.1. Indemnification by Transax

Transax will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Purchased Services infringe or misappropriate such third party’s intellectual property rights in the United States of America (each, a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Transax in writing of, a Claim Against Customer.

9.2. Indemnification by Customer

Customer will defend Transax and its Affiliates against any claim, demand, suit or proceeding made or brought against Transax by a third party arising from: (a) Customer’s use of the Services in an unlawful manner or in violation of this Agreement, an Order Form or the Documentation; or (b) any Customer Data or Customer’s use of Customer Data with the Services (each, a “Claim Against Transax”).

9.3. Sole and Exclusive Remedy

This Section 9 sets forth the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for the third-party claims described herein.

10. Limitation of Liability

10.1. Exclusion of Certain Types of Damages

Except to the extent prohibited by law, neither party or its Affiliates will have any liability arising out of or related to this Agreement for any indirect, exemplary, incidental, special, punitive, cover, business interruption, lost profit, or consequential damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party or its Affiliates have been advised of the possibility of such damages or if a party’s or its Affiliates’ remedy otherwise fails of its essential purpose.

10.2. Liability Cap

Except for amounts payable under a party’s indemnification obligations under Section 9 or Customer’s breach of Section 3.3, in no event shall the aggregate total liability of either party together with its Affiliates arising out of or related to this Agreement exceed the total amounts paid by or due from but not yet paid by Customer under the Order Form(s) giving rise to such liability in the 12 month period preceding the event giving rise to the liability.

11. Miscellaneous

11.1. Relationship Between the Parties

Transax is an independent contractor; nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the parties.

11.2. Export Compliance

The Services may be subject to the export laws of the United States and other jurisdictions. Each party represents that it is not on any U.S. government denied-party list. Customer will not permit any User to access or use the Services in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.

11.3. Anti-Bribery

Neither party has received or been offered any illegal or improper bribe, rebate, payoff, influence payment, kickback, or other thing of value from an employee or agent of the other party in connection with this Agreement.

11.4. Assignment

Neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party, and any assignment or transfer in derogation of the foregoing shall be null and void, provided, however that either party shall have the right to assign the Agreement, without the prior written consent of the other party, to the successor entity in the event of merger, corporate reorganization or a sale of all or substantially all of such party’s assets.

11.5. Notices

All notices required or permitted under this Agreement must be delivered in writing. If to Transax, by emailing support@transax.com; if to Customer, by emailing the Customer Point of Contact email address listed on the Order Form.

11.6. Governing Law and Jurisdiction

The Agreement is governed by the laws of the State of Indiana, without regard to its conflicts of laws or provisions. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts in Indiana and the Parties hereby consent to the personal jurisdiction of these courts.

11.7. Waivers; Severability

Any waivers shall be effective only if made by a writing signed by representatives authorized to bind the parties. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

11.8. Construction

The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”

11.9. Force Majeure

Any delay in the performance of any duties or obligations of either Party (except for the obligation to pay Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, flood, natural disasters, governmental action, pandemic/epidemic, cloud-service provider outages, or any other event beyond the control of such Party.

11.10. Entire Agreement

This Agreement and any applicable Order Form constitutes the complete agreement between the Parties and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of the Order Form or SOW will govern.

11.11. U.S. Government Restricted Rights

If Customer is a government end user, the software contained within the Platform and provided in connection with this Agreement has been developed entirely at private expense, as defined in FAR section 2.101, and is provided as “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by this Agreement.