Here are the terms fr sellers:
June 29, 2006
This Seller Processing Service Terms of Service is a legal agreement between you (the Seller) and Google Payment Corp., a wholly-owned subsidiary of Google Inc. This Seller Processing Service Terms of Service governs your access to and use of the Service. You should review this entire Seller Processing Service Terms of Service before you decide whether to accept them and continue with the registration process.
BY CLICKING ON THE "I HAVE READ AND I AGREE TO THESE TERMS OF SERVICE" BOX ON THE REGISTRATION PAGE AND CLICKING ON THE "NEXT" BUTTON, YOU AGREE TO BE BOUND BY THESE SELLER PROCESSING SERVICE TERMS OF SERVICE. Sellers who use the Service to engage in aggregate Payment Transaction amounts of five thousand dollars ($5,000) or more in Gross Merchandise Volume (GMV) for three consecutive months also agree to be bound to the three-party agreement between Seller, Google Payment Corp., and Paymentech, L.P., which is contained in Exhibit A.
SECTION 1. DEFINED TERMS
1.1 “AdWords Agreement” means, collectively, that certain Google Advertising Program Terms (and related insertion orders or service agreements) entered into by and between Seller and Google;
1.2 “Beta Features” means those features of the Service which are identified by GPC as beta or unsupported in GPC’s then current technical documentation, including without limitation the applicable API Reference Guide and API Developers Guide for the version of the Service Seller has implemented.
1.3 “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
1.4 “Buyer” means a Customer that uses the Service to make Payment Transactions.
1.5 “Customer” means a person or entity that registers with the Service as a Buyer or a Seller.
1.6 “Disputes” means any transactions, agreements, litigation, arrangements and/or other disputes between Customers or other third parties arising from the use of the Service except if arising solely from the malfunction of the Service.
1.7 “Google” means Google Inc., a Delaware corporation, or its affiliates
1.8 “Google Web Site” means the web site pages of any Google-owned domain, including all subdomains and directories thereof, and all successor sites thereto.
1.9 “Gross Merchandising Value”, or “GMV”, means the aggregate value of the Seller's Payment Transactions, including all fees, taxes, and shipping charges, as applicable.
1.10 “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
1.11 “Payment Account” means the credit card account, debit card account or other payment instrument that is registered by a Customer with the Service and accepted by GPC to facilitate the processing of Payment Transactions.
1.12 “Payment Transaction” means the processing of a payment through the Service that results in the debiting or charging of the Purchase Amount to a Buyer’s Payment Account and the issuance of funds to Seller’s Settlement Account.
1.13 “Product” means any digital or physical merchandise, good, or service that is listed for sale on a Seller Web Site or a Google Web Site that a Buyer may pay for using the Service.
1.14 “Purchase Amount” means the monetary amount of a Payment Transaction to pay for a Product, and any related fees, taxes, shipping charges or handling charges, as applicable.
1.15 "Reserve Requirement" means a monetary amount that GPC may withhold of any portion of payments payable to Seller with respect to the processing of Payment Transactions pursuant to this Seller Processing Service Terms of Service.
1.16 “Seller Web Site” means the web site pages of Seller that offer Products that can be paid for by means of the Service.
1.17 “Service” means the service, described in this Seller Processing Service Terms of Service, that facilitates the processing of Payment Transactions on behalf of Seller to complete a payment for a purchase between Seller and Buyer.
1.18 “Service Disputes” means any transactions, agreements, litigation, arrangements and/or other disputes between GPC and Buyers arising from the malfunction of the Service, only to the extent that the Service Dispute is not a Dispute.
1.19 “Service Fee” means the fees charged by GPC for the Service, as described in Section 6 herein.
1.20 “Settlement Account” means the deposit account of Seller maintained at a financial institution located in the United States that is designated by the Seller and approved by GPC for receipt of funds from the processing of Payment Transactions through (i) the Automated Clearing House network (“ACH Network”) or (ii) wire transfer.
SECTION 2. SERVICE FEATURES AND DESCRIPTION
2.1 Service Description. Seller hereby acknowledges and agrees that: (i) Seller’s sales of Products are transactions between the Seller and the Buyer and not with GPC or any of GPC’s affiliates; (ii) GPC is a third-party service provider facilitating Payment Transactions for Seller and is not a party to any Payment Transaction; (iii) GPC is not a Buyer or a Seller in connection with any Payment Transaction, unless expressly designated as such in the listing of the Product on a Google Web Site or its terms of service; (iv) GPC shall not be responsible for, and does not control, the quality, safety or legality of the Products advertised, the truth or accuracy of the description of the Products, the ability of Sellers to sell Products, or the ability of Buyers to buy Products; and (v) GPC shall not be responsible for, and does not control, whether or not a Buyer will complete the purchase of or payment for Products that Buyer agreed to purchase from Seller. When Buyer seeks to pay for a purchase with a Payment Account, the Service shall process the Payment Transaction on behalf of the Seller through the appropriate payment processing network, including without limitation credit card or debit card networks.
2.2 Permissible Payment Transactions. Seller shall only use the Service to process a Payment Transaction for a Product that is purchased by a Buyer through a legitimate, bona fide sale of the Product. A Payment Transaction may not be submitted for processing through the Service until Seller has: (i) completed the purchase transaction; (ii) shipped or otherwise provided the purchased goods to the Buyer; or (iii) performed the purchased service. The Service may not be used to process a Payment Transaction for Seller, or otherwise transfer money between a Buyer and Seller, that does not directly result from a Buyer's purchase of a Product. Seller shall not use the Service to provide cash advances to Buyers or to facilitate the purchase by Buyers of cash equivalents (e.g., travelers checks, prepaid cards, money orders, etc.), provided however, that Seller may use the Service to facilitate the purchase by Buyer(s) of a gift certificate or stored value card as permitted pursuant to applicable policies. GPC may establish general practices and limits concerning use of the Service, including without limitation individual or aggregate transaction limits on the dollar amount or number of Payment Transactions during one or more specified time periods. Seller may not use the Service to process Payment Transactions in connection with the sale or exchange of any illegal or prohibited goods or services, including without limitation prohibited Products or categories of Products as set forth on the prohibited product list (as may be updated from time to time), located here or any other underlying illegal transaction (“Prohibited Product List”). Failure to comply with applicable policy regarding the Prohibited Product List may result in suspension or termination of Seller's access to the Service in addition to or in lieu of the fees and fines otherwise provided for in this Seller Processing Service Terms of Service. Upon prior notice as specified by GPC, Seller may refuse to process any order for any reason in compliance with this Seller Processing Service Terms of Service, but in each such case Seller shall receive no payment in connection with the related Payment Transaction.
2.3 Limitations on the Use of Service. Seller shall comply with any usage policies and limits concerning use of the Service as requested and/or updated by GPC from time to time, including without limitation: (i) GPC’s technical and implementation requirements (as may be updated from time to time), located here; (ii) GPC’s brand treatment or service-mark guidelines for the Service; (iii) GPC Web Site terms of use (as may be updated from time to time), located here; (iv) GPC requirements for data security; and (v) operating rules and/or policies of the card associations or networks that are used to process the Payment Transactions attached hereto as Exhibit A (as may be updated from time to time). Seller’s Payment Transactions may be protected pursuant to the terms and conditions of GPC’s chargeback resolution policies (as may be updated from time to time), located here (“Chargeback Resolution Policy”). GPC shall reserve the right to change, suspend or discontinue the Service, in whole or in part, as necessary to perform maintenance or updates to the Service. GPC shall have the right to impose limits on certain features or restrict access to parts or all of the Service without notice and without liability. GPC may decline to process any Payment Transaction without prior notice to Seller or Buyer in connection with, without limitation, fraud prevention activities, requirements of applicable law or GPC’s policies. Subject to the foregoing, GPC shall not be obligated to credit Seller for a Payment Transaction if GPC has not received valid funds through Buyer’s Payment Account for the Payment Transaction.
2.4 Prohibited Actions. In addition to the other requirements set forth in this Seller Processing Service Terms of Service and unless otherwise expressly permitted in writing by GPC, Seller shall not: (a) establish a minimum or maximum Payment Transaction amount as a condition for Buyer’s use of the Service to pay for a Product; (b) require Buyer to provide Seller with the account numbers of any credit card, debit card or other Payment Account; (c) add any Service use surcharge to a Payment Transaction; (d) separately process as a Payment Transaction the amount of any tax applicable to a purchase of a Product; (e) submit to the Service a Payment Transaction that was previously rejected for processing or previously returned as a chargeback; or (f) permit the use of the Service for payment of any debt owed to Seller by Buyer or any returned/dishonored check.
2.5 Beta or Unsupported Features. The Service made available to Seller by GPC may include Beta Features. Seller understands and agrees that Beta Features are provided “as is” and any use thereof shall be undertaken solely at Seller’s own risk. GPC reserves the right, in its sole discretion, to include or cease providing Beta Features as part of the Service at any time.
SECTION 3. SERVICE IMPLEMENTATION
3.1 Implementation of Service. Service Compliance. Seller shall ensure that there is no use of or access to the Service through Seller Web Sites which are not in compliance with the terms of the Seller Processing Service Terms of Service or not otherwise approved by GPC, and Seller shall monitor and disable any such access or use by unauthorized parties (including without limitation any third party sites). GPC may send test queries to or conduct quality review of the Seller Web Site(s) at any time to verify Seller’s compliance with the requirements of this Seller Processing Service Terms of Service.
3.2 Implementation Setup. As part of Seller’s implementation of the Service on the Seller Web Site, and as a condition to GPC providing the Service, Seller shall establish, register and maintain a Payment Account and Settlement Account with the Service. The use of the Payment Account shall be subject to the standard terms and conditions of the account (as may be updated from time to time), located here. The Settlement Account shall be capable of receiving funds through the ACH Network or, where such capability is impracticable, by wire transfer. Seller authorizes GPC to confirm that a Payment Account or Settlement Account, each as listed by Seller on the Service registration web pages, is in good standing with the issuing financial institution, including by submitting a request for a payment authorization and/or a low monetary credit and/or debit to the Payment Account or Settlement Account, as applicable. Seller authorizes GPC to reconfirm, in GPC’s sole and absolute discretion, a Payment Account or Settlement Account any time such information is changed. Seller also authorizes GPC to obtain from time to time a credit report and/or to otherwise make credit or other background inquiries on Seller as GPC deems appropriate to assess the Seller’s eligibility for the Service or to review of Seller’s continued use of the Service. Seller agrees to provide current, complete and accurate registration information and Payment Account and Settlement Account information and to update such information to maintain it as current and accurate. GPC may require Seller to provide additional information from time to time as a condition of continued use of the Service, or to assist GPC in determining whether to permit Seller to continue to use the Service.
3.3 Updates. If GPC updates its technical or implementation specifications (including, without limitation, by way of updating the GPC Data Protocol or by way of requiring changes to the look and feel labeling, branding or attribution) from time to time as contemplated herein, Seller shall implement such updates or modifications as soon as reasonably practical, but in any event within ninety (90) daysof the date it receives notice thereof; provided, however, that updates or modifications to the look and feel, labeling, branding or attribution shall be implemented within thirty (30) days of the date it receive notice thereof.
3.4 Notice of System Changes. Seller will provide GPC with sixty (60) days’ advance notice of any change in the code or serving technology used to implement the Service that could reasonably be expected to have the potential to adversely affect the Service or processing of Payment Transactions (it being understood that notice will in no event relieve Seller of its obligations under this Seller Processing Service Terms of Service).
SECTION 4. ADDITIONAL SERVICE TERMS
4.1 GPC Not A Banking Institution. Seller hereby acknowledges and agrees that (i) GPC offers the Service to facilitate the processing of Payment Transactions for Sellers for payment of Buyers’ Product purchases, (ii) GPC processes Payment Transactions on behalf of Sellers and is authorized to receive funds on behalf of Sellers, (iii) GPC is not a bank or other chartered depository institution, and (iv) funds held by GPC or its service providers (including any bank service providers) in connection with the processing of Payment Transactions are not deposit obligations of Seller and are not insured for the benefit of Seller by the Federal Deposit Insurance Corporation or any other governmental agency.
4.2 Unclaimed Property. Seller acknowledges and agrees that if (i) GPC is holding funds that are due to Seller arising from a Payment Transaction processed through the Service or otherwise, (ii) GPC is unable to contact Seller and (iii) GPC has no record of Seller's use of the Service for several years, then GPC may be required under applicable law to report the balance of such funds as unclaimed property. In the event of the foregoing, GPC will try to locate Seller at the Seller's mailing address shown in GPC's records and, if GPC is unable to locate Seller, Seller acknowledges and agrees that GPC may be required to deliver any such funds to the applicable state as unclaimed property; provided, however that GPC may deduct a dormancy fee and other administrative charges from such unclaimed funds, as permitted by applicable law.
4.3 No Endorsement. Seller acknowledges and agrees that GPC does not represent or endorse the safety, quality, accuracy, reliability, integrity or legality of any Product, the truth or accuracy of the description of Products, Buyer Information, advice, opinion, offer, proposal, statement, data or other information (collectively, "Content") displayed or distributed, purchased or paid through the Service or the Google Web Sites. GPC hereby disclaims any liability or responsibility for errors or omissions in any Content or in the Service. GPC reserves the right, but shall have no responsibility, to edit, modify, refuse to post or remove any Content, in whole or in part, that in GPC, in its sole and absolute discretion is objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Seller Processing Service Terms of Service.
4.4 No Representation As to Customer Identity. GPC shall have no responsibility to Seller or any other person to investigate the background of, or confirm the identity of, other Customers of the Service, except to the extent required by applicable law. GPC may offer a feedback or other ranking system on the Service to assist Seller in evaluating other Customers of the Service. Seller acknowledges that any such feedback or ranking system represents solely the opinion of other Customers of the Service, and is not an opinion, representation, or warranty by GPC.
4.5 Disputes. Seller hereby acknowledges and agrees that, (i) except as expressly provided for in Chargeback Resolution Policy or as required by card association or network rules,GPC is not a party to and shall not be responsible for any Disputes and (ii) that with respect to any such Dispute, Seller shall comply with such dispute policies as provided by GPC from time to time. Notwithstanding the foregoing, GPC will provide various tools to assist Customers in communicating with each other to resolve a dispute that may arise between Buyers and Sellers with respect to a Payment Transaction. To the extent that Customers are unable to resolve a dispute, GPC may mediate disputes between Buyers and Sellers upon either party’s request for assistance. Upon receipt of such request, GPC will review the dispute and propose a non-binding solution, if appropriate and GPC’s sole discretion. For more detailed information, please see our Frequently Asked Questions. Unless otherwise expressly waived by GPC, Seller agrees to release, and does hereby release, GPC and its affiliates, and its and their agents, contractors, officers and employees, from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such Disputes. Notwithstanding the foregoing, GPC shall be responsible for any Service Disputes; provided, however, that Seller shall provide reasonable assistance to GPC if necessary to investigate the Service Dispute. In the event of a Service Dispute, GPC agrees to release, and does hereby release, Seller and its affiliates, and its and their agents, contractors, officers and employees, from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such Service Disputes. If Seller is a California resident, Seller hereby expressly waives California Civil Code §1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if not known by him must have materially affected his settlement with the debtor."
SECTION 5. BRAND FEATURES, LABELING, BRANDING, ATTRIBUTION, AND PR
5.1 License to GPC Brand Features; Labeling, Branding and Attribution. Subject to the terms and conditions of this Seller Processing Service Terms of Service, GPC grants to Seller a limited, nonexclusive and nonsublicensable license during the term of this Seller Processing Service Terms of Service to display those GPC Brand Features provided to Seller by GPC solely for use in connection with the implementation of the Service and promotion of the Service on Seller Web Site. Each implementation of the Service on a Seller Web Site and use of any applicable Service logo provided by GPC to Seller shall conform at all times during the term of the Seller Processing Service Terms of Service to the branding and attribution guidelines and policies (as may be updated from time to time), including GPC’s then current Brand Feature use guidelines and any content contained or referenced therein (as may be updated from time to time) , located here. Notwithstanding anything to the contrary, GPC may revoke the license granted herein to use GPC’s Brand Features upon providing Seller with written notice thereof. Furthermore, in its use of any GPC Brand Feature, Seller agrees to adhere to GPC’s then current Brand Feature use guidelines, and any content contained or referenced therein (each as may be updated from time to time).
5.2 License to Seller Brand Features. Subject to the terms and conditions of this Seller Processing Service Terms of Service, Seller grants to GPC a limited, nonexclusive and nonsublicensable license during the term of this Seller Processing Service Terms of Service to display those Seller Brand Features for use in connection with the Service and in order to fulfill its obligations under this Seller Processing Service Terms of Service.
5.3 Brand Features Right, Title and Interest. Each party shall own all right, title and interest, including without limitation all Intellectual Property Rights, relating to its Brand Features. Some, but not all examples of GPC Brand Features (as may be updated from time to time) may be located here. Except to the limited extent expressly provided in this Seller Processing Service Terms of Service, neither party grants, and the other party shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Brand Features of the first party; and all rights not expressly granted herein are deemed withheld. All use by GPC of Seller Brand Features (including any goodwill associated therewith) shall inure to the benefit of Seller and all use by Seller of GPC Brand Features (including any goodwill associated therewith) shall inure to the benefit of GPC. No party shall challenge or assist others to challenge the Brand Features of the other party (except to protect such party’s rights with respect to its own Brand Features) or the registration thereof by the other party, nor shall either party attempt to register any Brand Features or domain names that are confusingly similar to those of the other party.
5.4 Publicity. Neither party shall issue any public announcement regarding the existence or content of this Seller Processing Service Terms of Service without the other party’s prior written approval. Notwithstanding the foregoing, GPC may include Seller Brand Features in presentations, marketing materials, press releases, and customer lists (which includes, without limitation, customer lists posted on the GPC Web Sites and screen shots of Seller’s implementation of the Service).
SECTION 6. SERVICE FEES AND PAYMENT TERMS
6.1 Service Fees. The Service Fees for Payment Transactions shall be as provided and updated from time to time, on the fees page, located here. GPC further reserves the right to earn interest and/or other compensation from its service provider banks or others arising from the processing of Payment Transactions that have not settled to Seller.
6.2 Payment Terms. GPC shall hold amounts due and payable to Seller, less any applicable Service Fee, separate from GPC’s general corporate funds, and shall not use such amounts for GPC’s corporate operating expenses. GPC shall use commercially reasonable efforts to transfer funds electronically each business day (excluding without limitation bank holidays) (a “Business Day”) to Seller's Settlement Account for Payment Transactions that are processed twoBusiness Days prior. In the event that Seller is unable to receive funds electronically, GPC shall issue a check once each calendar month for Payment Transactions that are processed during the prior calendar month. Notwithstanding the foregoing, GPC shall not be obligated to (i) settle funds to Seller with respect to the processing of any Payment Transaction for which GPC has not received full settlement in final available funds for the processing of that Payment Transaction; or (ii) if Seller’s earned balance at the time of disbursement or transfer is less than $1. GPC further reserves the right to withhold payment, delay crediting payments or charge payments back to Seller, Settlement Account or Payment Account in the event (i) that Buyer made a claim for a refund, (ii) if GPC, in its reasonable discretion, believes that the Payment Transactions (A) are invalid, (B) involve misconduct, fraud, or are through any fraudulent or invalid means (including without limitation the fraudulent use of credit cards, debit cards or other means of payment) pursuant to GPC’s payment guarantee policy (as may be updated from time to time), located here or (C) otherwise violate applicable law, this Seller Processing Service Terms of Service or other applicable GPC or Service policies or (iii) of chargebacks pursuant to the rules of the card associations. Seller agrees to cooperate with GPC and provide such information as reasonably requested by GPC in its investigation of any of the foregoing. Seller hereby acknowledges and agrees that GPC may, at its option, offset any payment obligations to Seller that GPC may incur hereunder against any product or service fees (including Service Fees or late fees) owed and not yet paid by Seller under this Seller Processing Service Terms of Service or any other agreement between Seller and GPC, in addition to whatever other rights and remedies GPC may have hereunder or thereunder. In addition, GPC reserves the right to withhold and offset against its payment obligations hereunder, or require Seller to pay to GPC (within thirty (30) days of any invoice therefore), any amounts GPC may have overpaid to Seller in prior periods. Seller understands and agrees that Buyers retain a chargeback right pursuant to card associations rules, and that GPC shall have the right but not the obligation to pass chargebacks to the Seller. GPC reserves the right to deduct the following amounts from the amount of any Payment Transaction(s): (a) any applicable Service Fee and other applicable fees, (b) reversals, refunds, or rejections of prior Payment Transactions, and (c) any other corrections or adjustments to prior Payment Transactions, provided that GPC notifies Seller of such deductions.
6.3 Reserve Requirement. GPC reserves the right to impose a Reserve Requirement with respect to Seller, either on a temporary or permanent basis or upon Seller's participation in the Service. Circumstances where GPC may impose a Reserve Requirement include, but are not limited to: (a) in order to ensure that sufficient funds are available to GPC in the event of chargebacks, reversals of Payment Transactions or other Seller obligations arising in connection with Payment Transactions; (b) there is a change in Seller's financial condition or its payment record with creditors, including but not limited to failure of Seller to effectively continue as a going concern or if Seller is in default of its obligations under this Seller Processing Service Terms of Service, or card association or network rules; (c) Seller is receiving excessive chargebacks, as determined in the sole discretion of GPC; (d) Seller significantly alters the nature of its business or product lines; or (e) if GPC has reasonable grounds to believe that GPC may be liable to third parties for the provisional or final credit extended to Seller. GPC is not responsible to Seller or any other person for any losses sustained by Seller as a result of the imposition of transaction limits or Reserve Requirements or of other chargebacks or reversals.
6.4 Refunds and Adjustments. Seller shall disclose its return/cancellation policy to Buyers of Seller's Products. If Seller allows a price adjustment, return of Products or cancellation of Products in connection with a Payment Transaction from Buyer, Seller shall initiate a recredit to the Buyer using the refund function of the Service within three (3) days of receiving the Buyer's request for such refund/adjustment. The amount of the refund/adjustment cannot exceed the amount shown as the total on the original Payment Transaction. Seller is not allowed to accept cash or any other payment or consideration from a Buyer in return for preparing a refund to Buyer nor to give cash refunds to a Buyer in connection with a Product paid for with a Payment Transaction, unless required by law. If Seller's refund policy prohibits returns under certain circumstances, Seller may still receive a chargeback relating to such sales pursuant to the rules of the card associations. GPC reserves the right to reject or delay a refund request from Seller through the Service if GPC is unable to obtain sufficient funds from Seller's Payment Account or otherwise to fund the refund. For the avoidance of doubt, nothing in this Seller Processing Terms of Service shall constitute a waiver of any rights, claims or defenses that Seller may have with respect to a Payment Transaction under the card association rules or applicable state and federal payments laws, such as the federal Truth in Lending Act or the Electronic Fund Transfer Act.
6.5 Payment Transaction Processing Credit. Provided that Seller has (i) implemented the Service and the Program(s) (as defined in the AdWords Agreement), (ii) has maintained the Service in accordance with the Seller Processing Service Terms of Service for the past thirty (30) days, and (iii) Seller is and remains in good standing under and not in breach of all of its agreements with GPC or the AdWords Agreement, GPC, in its sole discretion, shall provide Seller, with respect to each month of Service, a nontransferable Service credit in an amount, as determined by GPC, that allows Seller to process without a Service Fee Payment Transactions equal to ten (10) times the invoiced amount for the prior month pursuant to the AdWords Agreement, including all applicable IO’s (as defined in the AdWords Agreement), subject to adjustments applicable to such monthly invoices and as a result of chargebacks or refunds. The Service credit may only be applied against Service Fees incurred during the applicable month for which such Service credit is granted, and any credit that remains unused after such applicable month shall expire. Any credit issued pursuant to this Section 6.5 may not be sold or transferred by Seller, and any attempt to sell or transfer any credit shall be null and void. At no time shall Seller be entitled to receive any monetary refund for any portion of the credit which may be outstanding at such point in time.
6.6 Taxes and Other Charges. Seller shall pay any applicable taxes, including sales, use, personal property, value-added, excise, customs fees, import duties or stamp duties or other taxes and duties imposed by governmental entities of whatever kind and imposed with respect to the transactions for services provided under the Seller Processing Service Terms of Service, including penalties and interest, but specifically excluding taxes based upon GPC’s net income. For purposes of clarification, GPC is not responsible for, and is not the entity collecting sales or income or other taxes with respect to Payment Transactions. When GPC has the legal obligation to collect any applicable taxes, the appropriate amount shall be invoiced to and paid by Seller “net thirty (30) days” from the date of invoice or other notification. Seller shall promptly provide GPC with such documentation as may be required by the applicable governmental entity in order for GPC to process payments hereunder (including, without limitation, a valid certificate of Seller’s exemption from obligation to pay taxes as authorized by the appropriate governmental entity), and GPC may withhold any payments required to be made hereunder until Seller has provided such documentation. Seller shall promptly provide GPC with original or certified copies of all tax payments or other sufficient evidence of tax payments at the time such payments are made by Seller pursuant to the Seller Processing Service Terms of Service.
SECTION 7. CONFIDENTIALITY AND PROPRIETARY RIGHTS
7.1 Confidentiality. Seller shall not disclose or cause to be disclosed any GPC Confidential Information without GPC’s prior written consent, except to those employees, agents, representatives, or contractors of the parties who require access to GPC Confidential Information to perform under this Agreement ("Authorized Personnel") and who are bound by written agreement not to disclose third-party confidential or proprietary information disclosed to Seller, or as such disclosure may be required by law or governmental regulation. Furthermore, Seller acknowledges and agrees that Seller is responsible for any act and/or omission of any Authorized Personnel in breach of this section. Seller shall protect GPC Confidential Information by using the same degree of care, but no less than a reasonable degree of care, that it uses to protect its own confidential information of a like nature to prevent its unauthorized use, dissemination or publication to any unauthorized third parties. " GPC Confidential Information" includes without limitation: (a) all GPC software, technology, programming, specifications, materials, guidelines and documentation relating to the Service; (b) any information provided pursuant to the Seller Processing Service Terms of Service, including, without limitation, tangible, intangible, visual, electronic, present, or future information such as: (i) trade secrets; (ii) financial information, including pricing; (iii) technical information, including research, development, procedures, algorithms, data, designs, and know-how; and (iv) business information, including operations, planning, marketing interests, and products; and (c) any other information designated in writing by GPC as "Confidential" or an equivalent designation. GPC Confidential Information shall not include information that: (w) is or becomes publicly available through no act or omission of Seller; (x) was in the Seller’s lawful possession prior to the disclosure and was not obtained by Seller either directly or indirectly from GPC; (y) is lawfully disclosed to the Seller by a third party without restriction on Seller’s disclosure, and where Seller was not aware that the information was GPC Confidential Information; or (z) is independently developed by the Seller without violation of this Agreement. Notwithstanding anything to the contrary, Seller shall hold confidential and shall not use, transmit (including for the purpose of sending unsolicited communications), or use such Buyer Information (as defined in the Data Usage Policy), except as provided in the data usage policy (as may be updated from time to time) (the “Data Usage Policy”). Seller acknowledges and agrees that Buyer Information provided to GPC in connection with the Service is subject to the Service's Privacy Policy (as may be updated from time to time), located here .
7.2 Username and Password Information. In addition to the foregoing, Seller shall be responsible for maintaining the confidentiality of its Service username and password. Seller is responsible for any and all Service transactions by persons that Seller gives access to or that otherwise use such username or password and any and all consequences of use or misuse of such username or password. Seller agrees to notify GPC immediately of any unauthorized use of its username or password or any other breach of security regarding the Service of which Seller has knowledge.
If Seller is a business entity, Seller agrees that all officers, employees, agents, representatives and others having access to the Service username or password shall be vested by Seller with the authority to use the Service and legally bind Seller. Seller shall be responsible for all actions by current and former officers, employees, agents, representatives and others, regardless of whether authorized by Seller, that access the Service by means of Seller's Service username and password.
7.3 Proprietary Rights. GPC and its licensors shall own all right, title and interest, including without limitation all Intellectual Property Rights relating to the Service (and any derivative works or enhancements thereof),including but not limited to, all software, technology, information, content, materials, guidelines, and documentation. Seller shall not acquire any right, title, or interest therein, except for the limited use rights expressly set forth in the Seller Processing Service Terms of Service. Seller acknowledges and agrees not to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any GPC services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Service or proprietary information related thereto. Seller shall not remove, obscure, or alter GPC’s copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any GPC services, software, or documentation. Any rights not expressly granted herein are deemed withheld.
SECTION 8. WARRANTIES; DISCLAIMER OF WARRANTIES
8.1Representations, Warranties and Covenants. Seller represents, warrants, and covenants that: (a) (i) if an individual, Seller is 18 years old or older or (ii) if a business entity, Seller is duly authorized to do business in the United States; (b) Seller is capable of and has full power and authority to enter into the Seller Processing Service Terms of Service and that upon execution and delivery hereof, this Seller Processing Service Terms of Service shall constitute the valid and binding obligations of the Seller; (c) Seller is a resident of the United States; (d) if Seller is a business entity, the employees or officers of Seller accessing the Service is/are duly authorized to access the Service and to legally bind Seller with respect to this Seller Payment Terms of Service and all transactions conducted under Seller's username and password; (e) Seller owns and controls one hundred percent (100%) of the Seller Web Site(s) and otherwise has and shall maintain throughout the term of this Seller Processing Service Terms of Service all rights, authorizations and licenses that are required to permit Seller to use the Service; (f) the execution and delivery of this Seller Processing Service Terms of Service, and the performance by Seller of its obligations hereunder, shall not constitute a breach or default of or otherwise violate any agreement to which such party or any of its affiliates are a party or violate any rights of any third parties arising therefrom; (g) Seller shall comply with all laws, regulations and ordinances applicable to or otherwise connected with Seller’s use of the Service; and (h) Seller shall not attempt to initiate or receive a Payment Transaction using the Service that is, or would be, illegal under any applicable law.
8.2 DISCLAIMER OF WARRANTIES. THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON, PROVIDED IN CONNECTION WITH OR ACCESSIBLE THROUGH THE SERVICE, IS PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE BY LAW, GPC AND ITS SUBSIDIARIES AND OTHER AFFILIATES, AND THEIR AGENTS, CO-BRANDERS OR OTHER PARTNERS, MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER FOR THE SERVICE OR THE CONTENT, MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE SERVICE, OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SERVICE. GPC AND ITS SUBSIDIARIES AND OTHER AFFILIATES, AND THEIR AGENTS, CO-BRANDERS OR OTHER PARTNERS, DISCLAIM WITHOUT LIMITATION, ANY WARRANTY WITH RESPECT TO THE SERVICE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. GPC does not warrant that the functions contained in the Service will be uninterrupted or error free. GPC shall not be responsible for any service interruptions, including, but not limited to, power outages, system failures or other interruptions that may affect the receipt, processing, acceptance, completion or settlement of Payment Transactions or the Service.
SECTION 9. LIMITATION OF LIABILITY AND INDEMNIFICATION
9.1 LIMITATION OF LIABILITY. GPC AND ITS SUBSIDIARIES AND OTHER AFFILIATES, AND THEIR AGENTS, CO-BRANDERS OR OTHER PARTNERS, SHALL NOT BE RESPONSIBLE OR LIABLE TO SELLER OR ANY THIRD PARTIES UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES WHICH MAY BE INCURRED IN CONNECTION WITH GPC OR THE SERVICE, OR ANY GOODS, SERVICES, OR INFORMATION PURCHASED, RECEIVED, SOLD OR PAID FOR BY WAY OF THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF GPC HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGE OR LOSS. IN NO EVENT SHALL GPC’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS SELLER PROCESSING SERVICE TERMS OF SERVICE OR THE SERVICE EXCEED THE NET FEES GPC HAS ACTUALLY RECEIVED AND RETAINED FROM SELLER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING ACCRUAL OF THE RESPECTIVE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.Each party acknowledges that the other party has entered into this Seller Processing Service Terms of Service relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.
9.2 Seller Indemnification. Seller shall indemnify, defend and hold harmless GPC, its subsidiaries and other affiliates, and its and their officers, directors, owners, agents, co-branders or other partners, employees, information providers, licensors, licensees, consultants, contractors and other applicable third parties (including without limitation Paymentech, L.P.) (collectively, the “GPCIndemnified Parties”) from and against any and all claims, demands, causes of action, debt or liability, including reasonable attorneys fees (“Losses”) , including without limitation attorneys fees and costs incurred by the GPC Indemnified Parties, incurred in connection with any third-party claim based upon or otherwise arising out of (i) the Seller Web Site(s); (ii) Seller’s use of the Service, (iii) any breach or non-compliance by Seller of this Seller Processing Service Terms of Service, any of GPC’s applicable policies, or Seller’s representations or the provision of warranties contained herein; (iv) any dispute or litigation between a GPC Indemnified Party and a third party caused by Seller’s actions or omissions; and (v) Seller’s negligence or violation or alleged violation of any rights of a third party. GPC may join in defense with counsel of its choice at its own expense.
SECTION 10. TERMINATION
10.1 By Seller. Seller may terminate this Seller Processing Service Terms of Service of Seller’s use of the Service at any time upon providing prior written notice pursuant to this Seller Processing Service Terms of Service or as otherwise permitted by GPC from time to time; provided, however that any termination pursuant to this Section 10.1 shall be subject to the terms and conditions of this Agreement.
10.2 By GPC. GPC may, in its sole and absolute discretion without liability to Seller or any third party, immediately terminate, limit or suspend this Seller Processing Service Terms of Service or Seller's use of the Service at any time for any reason, including, without lim`itation, inactivity or violation of this Seller Processing Service Terms of Service or other usage policies established by GPC from time to time. GPC also shall be permitted to immediately terminate Seller's use of the Service if Seller's use of the Service, in GPC's sole and absolute discretion, creates a risk of financial harm or loss of goodwill to GPC, the Service, or any of the payment card systems used for processing Payment Transactions. If GPC decides to suspend Seller's use of the Service, GPC will attempt to notify Seller by electronic mail. GPC's suspension of Seller's use of the Service will not affect Seller's rights and obligations pursuant to this Seller Processing Service Terms of Service arising prior or subsequent to such suspension.
10.3 Effect of Termination. Upon expiration or termination of this Seller Processing Service Terms of Service or other termination of Seller’s use of the Service, GPC shall, within approximately ninety (90) days following the end of the calendar month in which GPC recognizes that the Seller Processing Service Terms of Service has been terminated, issue a check or transfer funds electronically, as applicable, to Seller for valid Payment Transactions processed during the termination month, but in no event shall GPC make payments for any earned balance less than $1. All other obligations of GPC hereunder shall immediately cease. Seller shall remain liable for all Payment Transactions, chargeback fees, and any other obligations incurred or accrued by Seller. Upon the expiration or termination of the Seller Processing Service Terms of Service for any reason: (i) all rights and licenses granted by GPC shall cease immediately; and (ii) Seller’s rights to use any Google Brand Features, as permitted under the Seller Processing Service Terms of Service, shall cease immediately; (iii) Seller shall immediately cease use of the Service to process Payment Transactions and (iv) Seller shall fulfill any outstanding Product purchases. GPC shall have the right to prohibit Seller’s access to the Service, including without limitation by deactivating Seller’s username and password, and to refuse Seller (or its parent, affiliate or subsidiaries or its or their successors, or if an individual its relatives or known acquaintances) future access to the Service. Seller shall return or destroy (and certify to such destruction) all copies of any GPC Confidential Information. Sections 1, 4, 5.4, 6, 8, 9 and 10 shall survive any termination or expiration of this Seller Processing Service Terms of Service.
SECTION 11. GENERAL
11.1 Notice to GPC. Unless provided for to the contrary in this Seller Processing Service Terms of Service , any and all notices or other communications or deliveries required or permitted to be made under this Seller Processing Service Terms of Service to GPC shall be in English and in writing to: Google Payment Corp., 1600 Amphitheatre Parkway, Mountain View, CA 94043, with a copy to Attn: Legal Department at the same address. Notice to GPC will be deemed given (i) upon receipt when delivered personally or by overnight courier (signature required upon receipt); or (ii) upon verification of receipt of registered or certified mail. Contact information shall be updated as permitted by GPC and as necessary to ensure that each party has current information regarding all such contacts.
11.2 Notice to Seller. GPC may communicate with Seller regarding the Service by means of electronic communications, including (a) sending electronic mail to the email address Seller provided to GPC during registration, or (b) posting of notices or communications on a GPC web site. GPC and Seller agree that GPC may communicate by means of electronic communications the following types and categories of communications and records: this Seller Processsing Service Terms of Service (and revisions or amendments), notices or disclosures regarding the Service, payment authorizations, and any other matter relating to Seller's use of the Service. Seller is responsible for providing its own hardware, software and electronic access to the Internet in order to use the Service. Seller should maintain copies of electronic communications by printing a paper copy or saving an electronic copy on Seller's computer. Electronic communications shall be deemed received by Seller when GPC sends the electronic communication to the email address of Seller provided at the time of registration or as revised by Seller thereafter in accordance with this Seller Terms of Service, or when GPC posts the electronic communication on a Google Web Site. For those categories of communications or records that GPC is otherwise required under applicable law to provide in a written paper form to Seller, GPC and Seller agree that GPC may provide such communications or records to Seller by means of electronic communications. The following additional terms will apply to such electronic communications: (a) Seller may contact GPC here to request another electronic copy of the electronic communication without a fee; (b) Seller may request a paper copy of such an electronic communication, and GPC reserves the right to charge Seller a fee to provide such paper copy; (c) Seller may contact GPC through the GPC web site contact page to update Seller's registration information (such as email address) used for electronic communications or to withdraw consent to receive electronic communications; and (d) GPC reserves the right to terminate Seller's use of the Service if Seller declines or withdraws consent to receive electronic communications from GPC.
11.2 Governing Law; Venue. The laws of California, excluding California’s choice of law rules, and applicable federal United States laws shall govern this Seller Processing Service Terms of Service. Each party agrees to submit to the personal and exclusive jurisdiction of the courts located in Santa Clara County, California. The parties specifically exclude from application to this Seller Processing Service Terms of Service the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
11.3 Entire Agreement; Modification. This Seller Processing Service Terms of Service constitutes the entire agreement between the parties with respect to the subject matter hereof. This Seller Processing Service Terms of Service supersedes any other prior or collateral agreements (including, as applicable, the prior beta agreement), whether oral or written, with respect to the subject matter hereof. The Seller Processing Service Terms of Service (a) shall be binding on and inure to the benefit of each of the parties and their respective successors and assigns; (b) may be executed in counterparts, including facsimile counterparts, each of which will be deemed an original and all of which when taken together will constitute one and the same instrument; and (c) shall be construed as if both parties jointly wrote it. GPC shall have the right, at its sole and absolute discretion, to change, modify, or amend any portion of this Seller Terms of Service at any time by posting notification on a GPC web site or otherwise communicating the notification to Seller. The changes will become effective, and shall be deemed accepted by Seller, after the initial posting by GPC or the sending by GPC of notification to Seller and shall apply on a going-forward basis with respect to Payment Transactions initiated after such sending or posting date. In the event that Seller does not agree with any such modification, Seller shall terminate its use of the Service, which shall be Seller's sole and exclusive remedy. Notwithstanding the foregoing, Seller acknowledges and agrees that any terms of service or other agreement to be clicked-through or entered into as part of the initial online registration process for the Service shall not constitute a change, modification, amendment, restatement or termination of this Seller Terms of Service.
11.4 Assignment. Seller shall not assign this Seller Payment Terms of Service or any rights or obligations hereunder, by operation of law or otherwise, without the prior written approval of GPC and any such attempted assignment shall be void. GPC shall have the right to freely assign this Seller Payment Terms of Service and the rights and obligations hereunder, to any third party without requiring the consent of or notice to Seller. Subject to the foregoing, this Seller Payment Terms of Service shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.]Any attempt by Seller to assign this Seller Processing Service Terms of Service in violation of this Section shall be void and without effect.
11.5 Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
11.6 Other Provisions. The failure of GPC to exercise or enforce any right or provision of the Seller Processing Service Terms of Service shall not constitute a waiver of such right or provision. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Unless otherwise expressly stated herein, all amounts stated in this Seller Processing Service Terms of Service are denominated in United States dollars. The URL’s provided in this Seller Processing Service Terms of Service are incorporated by reference and may be updated by GPC from time to time. The parties hereto are and shall remain independent contractors and nothing herein shall be deemed to create any agency, partnership, or joint venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other nor shall either party have any right or authority to create any obligation on behalf of the other party. If any provision of this Seller Processing Service Terms of Service shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Seller Processing Service Terms of Service shall otherwise remain in full force and effect and remain enforceable between the parties. This Seller Processing Service Terms of Service is not intended and shall not be construed to create any rights or remedies in any parties other than Seller and GPC, or Paymentech, L.P as provided in Exhibit A (as may be updated from time to time) if applicable to Seller, or GPC affiliates, which each shall be a third party beneficiary of this Seller Processing Service Terms of Service, and no other person shall assert any rights as a third party beneficiary hereunder.
Exhibit A
Three Party Agreement between Seller, GPC, and Paymentech, L.P.
This Exhibit A applies to all Sellers who use the Service to engage in aggregate transaction amounts of five thousand dollars ($5,000) or more in gross merchandise volume (GMV) for three consecutive months. This Exhibit contains terms required by the groups of Card issuer banks or debit networks that facilitate the use of payment cards ("Associations"). These terms form a three-party agreement between the Seller subject to Exhibit A, GPC, and Paymentech, L.P. ("Paymentech"), the service provider with which GPC has entered into a separate agreement to assist GPC in processing Seller's Payment Transactions.
Definitions
Association Rules are the bylaws, rules, and regulations, as they exist from time to time, of the Associations.
Card is both the plastic card or other evidence of the account and the account number, issued by a Card issuer or a debit network to the Cardholder, either of which are accepted for the purpose of paying Seller, and which will be processed under this Seller Payment Terms of Service.
Cardholder is the person to whom the Card is issued and who is entitled to use the Card.
Retrieval Request is a request for information by a Cardholder or Card issuer relating to a claim or complaint concerning a Card sale Seller has made.
Sales Data is the evidence and/or electronic record of a Payment Transaction representing payment by use of a Card or of a refund/credit to a Cardholder.
Seller Acceptance of Cards
Seller agrees to comply with all Association Rules, as may be applicable and in effect from time to time. Seller understands that GPC or Paymentech may be required to modify this Exhibit A in order to comply with requirements imposed by the Association Rules.
The Association Rules require that each Sales Data Seller tenders to GPC for processing comply with the following conditions: (1) The Sales Data represents payment or refund of payment, for the bona fide sale or lease of the goods, services or both, which Seller has provided in the ordinary course of its business; (2) The Sales Data does not involve any element of credit for any purpose other than payment for a current transaction (including payment of a previously-dishonored check) and, except in the case of approved installment or pre-payment plans, the goods have been shipped or services actually rendered to the Cardholder; (3) To Seller's knowledge, the Sales Data is free from any material alteration not authorized by the Cardholder; and (4) Seller has not advanced any cash to the Cardholder in connection with the Card transaction, nor has Seller accepted payment for effecting credits to a Cardholder's account.
Refunds and Adjustments
The Card Associations require Seller to maintain a fair policy with regard to the return/cancellation of merchandise or services and adjustment of Card sales. Seller must also disclose its return/cancellation policy to Seller's customers.
If Seller allows a price adjustment, return of merchandise or cancellation of services in connection with a Card sale, Seller must prepare and deliver to GPC Sales Data reflecting such refund or adjustment within 3 days of receiving the customer's request for such refund/adjustment. The amount of the refund/adjustment cannot exceed the amount shown as the total on the original Sales Data except by the exact amount required to reimburse the Cardholder for postage that the Cardholder paid to return merchandise. Seller is not allowed to accept cash or any other payment or consideration from a customer in return for preparing a refund to be deposited to the Cardholder's account nor to give cash refunds to a Cardholder in connection with a Card sale, unless required by law.
If Seller's refund policy prohibits returns under certain circumstances, Seller may still receive a chargeback relating to such sales pursuant to the Association rules.
Retrieval Requests
The Associations require Seller to store original documentation of each transaction for at least six months from the date of the respective transaction, and to retain copies of all such data for at least 18 months from the date of the respective transaction. The Associations do not allow Seller to charge a fee for the creation or storage of such copies.
Data Security and Privacy
Seller must exercise reasonable care to prevent disclosure of Card information, other than to Seller's agents and contractors for the purpose of assisting Seller in completing a Card transaction, or to the applicable Association, or as specifically required by law. Association Rules require Seller to comply with all security standards and guidelines that may be published from time to time by Visa, MasterCard or any other Association, including, without limitation, the Visa U.S.A. Cardholder Information Security Program (collectively, the "Security Guidelines"). Seller understands and agrees that failure to comply with the Payment Card Industry Data Security Standard requirements and other Security Guidelines may result in fines and/or penalties being levied against Seller or against GPC or Paymentech because of Seller's actions by the Associations. If this occurs Seller agrees to reimburse GPC or Paymentech immediately for any fine or penalty imposed due to violation of the Security Guidelines.
The Association Rules provide that Cardholder information and transaction data is owned by the Associations, the Card issuer and the Cardholder.
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