Terms of Service Agreement

Terms of Service Agreement

This Terms of Service Agreement ("this Agreement" or "TOS") is made and entered into between Cunningham, Montgomery & Torrance, Inc. ("CMTI", or "us") and each Customer ("Customer" or "you") who engages CMTI, via any mode or medium, whether through this website, or completely outside of this website (i.e. via hard copy documents, facsimile, electronically, or other) and/or pays for Services (as defined below). CMTI and Customer are "the parties". The term ("Term") of this Agreement begins on the first day Services are delivered, directly or indirectly, to Customer ("Effective Date"), and continues until the earliest of that date when CMTI gives notice (expressly in writing, by affirmatively disabling Services, or otherwise) that the relationship between CMTI and Customer is terminated, or the last day that Services are provided by CMTI and/or all equipment and materials have been returned to CMTI and/or that date when Customer gives notice that the relationship between CMTI and Customer is terminated, provided Customer has paid CMTI fully and finally all sums due. This Agreement states the terms and conditions by which CMTI will deliver, and Customer will receive, the Services (as defined below), and may be amended from time-to-time at CMTI's sole discretion. Each payment form, authorization, contract, invoice, or other written document submitted, accepted, paid and/or received by both parties is hereby incorporated by reference into this Agreement. This Agreement is intended to cover any and all Services ordered by Customer and delivered by CMTI, whether directly or via a third party Re-Seller, Sales Agent, or other authorized party acting on behalf of CMTI. All references herein to communication or notice from or to CMTI shall be defined to include communication between Customer and a Re-Seller, Sales Agent, or other authorized party acting on behalf of CMTI. Fees and payment schedules are determined on a customer by customer basis as Customer needs dictate.

You/Customer, by accepting CMTI Services (as defined below), do, as a condition thereof, simultaneously expressly consent to, agree to, and accept, this Agreement (and as amended from time-to-time), and understand that this Agreement shall at all times govern your/Customer's relationship with CMTI throughout the Term. It is your/Customer's sole responsibility to regularly review this Agreement, as it is amended and up-dated from time-to-time.

CMTI Services

CMTI shall deliver to Customer certain payment processing and related services as requested by Customer, from time-to-time, including but not limited to, the transmission of payment data, gateway services, e-commerce solutions, check acceptance, remittance processing, domain name registration (and renewal) on behalf of Customer, bill payment pages creation, digital accounts creation, digital security certificate, simple website development, building, design, and hosting for Customer, and maintenance and support thereof, and other such services as agreed to by the parties ("Services").

CMTI Use of Third Party Providers/ Authorized Re-Sellers

The Services delivered by CMTI may originate with CMTI, or with a third party provider ("Third Party Provider") other than CMTI. In certain events, CMTI shall also deliver goods from Third Party Providers ("Goods")(such as card readers) to be sold in conjunction with said Services ("Goods sold in conjunction therewith"). In certain events, CMTI may consent to having Services which originate with CMTI "re-sold" (as that term is generally understood in the industry) by an authorized "Re-Seller" of such Services to Customers.

CMTI not a QSA

CMTI is not a Qualified Security Assessor ("QSA") as defined by the PCI Security Standards Council. Any questions related to Customer's PCI Compliance should be directed to a QSA.

CMTI does not offer Financial, Securities, Legal, Accounting, Tax or other expert advice

In no event shall any Services (or any information, direction, or materials provided as part of such Services) delivered by CMTI to Customer be deemed, intended, or construed to be Financial, Securities, Legal, Accounting, Tax or other expert advice to Customer. Customer is solely responsible to seek out any and all Financial, Securities, Legal, Accounting, Tax or other expert advice as required by Customer.

Customer Privacy; Personally Identifiable Information (PII)

CMTI may have access during the Term (and during any set-up process prior to the Term) to certain information uniquely identified with Customer, including, but not limited to, Customer's name, address, and account number ("Personally Identifiable Information" or "PII"). CMTI shall use any such Customer PII for limited business purposes only, consistent with industry standards, such as contacting Customer, sending information to Customer about CMTI, billing, payment processing, analytics, operations, fraud detection and prevention, reporting, making back-ups and legal compliance. CMTI shall not share any Customer PII with any third party, other than to authorized Third Party Providers (as defined herein) required to deliver the Services, all of which shall be contractually restricted from using such information in any manner other than as stated herein. Notwithstanding the aforesaid, Company may disclose Customer PII when required to do so by law.

Customer Domain Names and Registrations

If CMTI, at Customer's request, registers Customer's domain name with a third party, then the domain name, registration, and account related thereto shall be in the name of CMTI unless otherwise requested by Customer, and shall remain the property of CMTI, but is eligible to be assigned to Customer (subject to reimbursement for all costs incurred) upon the termination of the Term hereof.

Customer User Names and Passwords

Customer understands, agrees, and consents that CMTI shall, from time-to-time, maintain and use one or more user names and/or passwords on behalf of Customer and/or in Customer's name, in support of Customer's domain name(s), registration(s), gateway(s), payment terminal(s), web page(s), database(s), host payment page(s), billing payment page(s), or other Services delivered to Customer. Notwithstanding the foregoing, CMTI ,in some cases, may access credit card or debit card payment information or data captured on Customer's payment page(s) or databases.

Copyright. Trademark. Proprietary Information

CMTI is the sole and exclusive owner of all right, title, and interest in all content, materials, and other proprietary information included on, or incorporated by reference into, its websites (expressly including www.commercialpayments.com), including all worldwide, federal, state, or common law copyrights therein (and all renewals and extensions therein), trademarks, service marks, trade dress, or related rights included therein, and all other right, title, and interest therein. "Proprietary Information" shall include but not be limited to, CMTI's services, software tools, computer code, content management systems, hardware design, algorithms, software, user interface designs, architecture, class libraries, objects and documentation, network designs, know-how, business forms, trade secrets and any related intellectual property rights throughout the world, including any derivatives, improvements, enhancements or extensions of the above, conceived, reduced to practice or developed during the Term of this Agreement. This Agreement does not transfer from CMTI to Customer any of the aforementioned content, materials, Proprietary Information, or technology, and all rights, title and interest therein, shall remain solely with CMTI. Customer agrees that Customer shall not, directly or indirectly, reverse-engineer, de-compile, disassemble or otherwise attempt to derive source code or other trade secrets from CMTI. Customer further agrees that Customer shall not, without CMTI's prior approval, use, copy, download or distribute any of the aforementioned content, materials, or Proprietary Information. CMTI is not responsible for typographical errors. The absence of a symbol of notice of copyright (©), trademark (™ or ®) or service mark (SM) from a name, trademark, service mark, or design/logo does not constitute a waiver of copyright, trademark, service mark, or other intellectual property rights concerning that property. Mention of third-party products, entities and websites is for informational purposes only and does not constitute either an endorsement or a recommendation by CMTI.

Limitations on Warranties

CMTI does not make, and hereby expressly disclaims, any and all representations or warranties of any kind, nature or description, as to the Services (and any Goods sold in conjunction therewith) whether express or implied, including, without limitation: a) warranties of merchantability, b) warranties of fitness for a particular purpose, c) warranties of protection from security breaches, non-infringement and title, d) warranties arising from a course of dealing, usage or trade practice, e) warranties that the Services (and any Goods sold in conjunction therewith) will be uninterrupted, error-free or completely secure (Note: CMTI does not, and cannot, control the flow of information to or from CMTI's network, websites and other portions of the Internet. Such flow depends, in large part, on the performance of Internet services delivered to Customer and provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer's connections to the Internet. CMTI cannot control, disclaims, and is not liable if such events occur); and, f) warranties as to content of the information transmitted through its facilities; CMTI does not monitor or exercise control over the content of the information transmitted through its facilities.

Customer Assumption of Risk

By its use of the Services (and any Goods sold in conjunction therewith)(or any information, direction, or materials provided as a part of such Services), Customer assumes the risks associated therewith. The Services (and any Goods sold in conjunction therewith) are provided on an 'as is' basis, and Customer's use of the Services (and any Goods sold in conjunction therewith) is at its own risk.

Limitations on Liability

CMTI shall not be liable for any act caused by any Third Party Provider, or by Customer (or its employees, contractors, agents, or representatives), which results in any loss or damage to Customer, including but not limited to, for: a) Customer's failure or breach of Customer Duties (as defined below), or, b) loss of data resulting from delays, hacking, corruption of data, non-deliveries, mis-deliveries, or service interruptions. Except to the extent of CMTI's gross negligence or willful misconduct, CMTI shall not be liable for unauthorized access to CMTI's or Customer's transmission facilities or premise equipment, or for unauthorized access to, or alteration, theft or destruction of, Customer's data, programs, procedures or information, whether through accident, fraudulent means or devices or any other method.. In no event shall CMTI be liable or responsible to Customer for any type of incidental, punitive, indirect or consequential damages, including, without limitation, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss or theft of data, or interruption or loss of use of Service or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort, product liability, strict liability or otherwise. Notwithstanding anything else to the contrary contained in this Agreement, CMTI's maximum aggregate liability to Customer for any claim related to, or in connection with, its Services or this Agreement, whether in contract, tort or otherwise, shall be limited to the total amount actually paid by Customer (directly or indirectly, through a Third Party Provider or otherwise) to CMTI for the Services rendered for the prior six (6) months. The validity of CMTI Limited Warranty is conditioned and contingent upon compliance with any hardware, software, card reader, or other guidelines of use designated by CMTI for the given Service provided.

IMPORTANT NOTICE: Customer's Duties

Customer shall have the duty, and be solely responsible, to perform the following duties (collectively, "Customer Duties"):

a) Suitability of Services: To review, vet, and approve the selection, use and suitability of CMTI and the Services (and any Goods sold in conjunction therewith) for Customer's particular needs, business, industry, end-user/customer-type, and financial model.

b) On-Line Payment Page(s): As to any Customer website or other on-line payment page(s) subject to this Agreement:

- To oversee the development, operation and ongoing maintenance thereof

- To ensure the accuracy, appropriateness, originality, legal-compliance, and non-libelous and non-infringing nature of, all content and materials appearing therein, whether provided by Customer or proposed by CMTI (NOTE: CMTI is in no way liable for any actions taken by Customer or any third party on Customer's behalf for any changes made to any website or other on-line payment page(s) originally created by CMTI)

- To oversee and calculate any fees, bills, prices, costs, shipping, sales tax, or other figures quoted thereon

- To provide any services or goods sold in exchange for payment and/or accepting, and for handling any end-user inquiries or complaints

- To regularly inspect and up-date content on the on-line payment page(s), and to give notice to CMTI of any changes required

- To regularly initiate, engage, oversee, and complete scans, to ensure PCI Compliance.

c) IMPORTANT NOTICE: Control by Customer of Security: As to any Customer website or other on-line payment page(s): To engage maximum security efforts allowed by law to regularly monitor, protect, secure, and inspect Customer's hardware, and all end-user data being processed or captured on Customer's behalf, against outside third party and internal/employee security breaches, hacking, malware, key-logging, or other acts of breach, corruption, disruption, or interference, including but not limited to by complying with all terms of any applicable compliance manager systems. Customer has SOLE control over its internal security measures and in no event shall CMTI be liable for any failure or breach of this duty by Customer.

Indemnification

Regardless of whether Customer engaged CMTI directly or via a third party Re-Seller, Sales Agent, or other authorized party acting on behalf of CMTI, as to any Services delivered by CMTI, Customer agrees to indemnify and hold CMTI and its affiliates harmless against any losses, costs, expenses (including, without limitation, reasonable attorneys' fees and costs), claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, "Losses") that are related to any claim, suit, action or proceeding brought by a third party against CMTI or its affiliates, that is related to, resulting from, or arising out of: (a) any breach, default, or failure by Customer of its Customer Duties; (b) any actual or alleged infringement or misappropriation of any copyright, trade secret, patent, trademark, Proprietary Information, or other proprietary right, by Customer or any third party, whether direct or indirect and intentional or non-intentional; (c) any content provided by Customer, or (d) Customer's violation of, or failure to comply with, this Agreement in any way.

Termination

This Agreement, and the Services (and any Goods sold in conjunction therewith) provided by CMTI to Customer, may be terminated by either party at any time and for any reason, upon a no less than thirty (30) days' prior written notice to the other party. Regardless of which party terminates this Agreement pursuant to this Section, any and all payment obligations of Customer under this Agreement, for Services that CMTI provided through the date of termination, will immediately become due, and Customer shall be required to pre-pay any Services (and any Goods sold in conjunction therewith) to be rendered by CMTI and any Third Party Provider during such thirty (30) day period.

Miscellaneous

- CMTI shall not be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the provision of Services to Customer that results, directly or indirectly, from any unforeseen or force majeure event.

- CMTI and Customer agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement, including, without limitation, the insurance providers for either party or the end-users/customers of Customer.

- This Agreement is made under and shall be governed by, and construed in accordance with, the laws of the State of Tennessee. CMTI reserves the right to resolve any dispute between the Parties by legally binding and non-appealable arbitration under the Commercial Arbitration Rules of the American Arbitration Association, and not by any court action or appeal. The arbitration shall be conducted by a single arbitrator chosen by the parties in Nashville, Tennessee. Costs shall be incurred equally. Alternatively, the exclusive venue for all legal actions or proceedings relating to this Agreement held in a court of law shall be the state courts in Davidson County, Tennessee and the federal courts for the Middle District of Tennessee at Nashville, and each party consents to such personal jurisdiction and waives all objections thereto.

- In the event that a provision of this Agreement is held, by a tribunal of competent jurisdiction, invalid or contrary to the applicable law, the remaining provisions of this Agreement shall remain in full force and effect.

- The waiver of any breach or default of this Agreement by either party shall not constitute a waiver of any subsequent breach or default, and shall not act to amend or negate the rights of the waiving party.

- Customer shall not sell, assign or transfer its rights or delegate its duties under this Agreement, either in whole or in part, without the prior written consent of CMTI, and any attempted assignment or delegation without such consent shall be void.

- CMTI may assign this Agreement in whole or in part. CMTI may also delegate the performance of any or all of its Services to any third parties of its sole election.

- All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally or upon receipt of delivery of first class mail or upon receipt by email.

- CMTI and Customer are independent contractors and this Agreement shall not establish any relationship of partnership, joint ventures, employment, franchise or agency between CMTI and Customer. Neither CMTI nor Customer have the power to bind the other or incur obligations on the other's behalf, without the other's prior written consent, except as otherwise stated in this Agreement.

- This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. Further, if any documents, agreements, or terms or conditions issued by Customer and signed by the Parties in any way contradict, or are in conflict with, this Agreement, then this Agreement shall supersede and control.

- CMTI shall have the right to amend this Agreement at any time. Notice of such amendment shall be provided to Customer in such manner and mode at CMTI's sole discretion.

- CMTI shall have the right to modify its Services (and any Goods sold in conjunction therewith), without notice to Customer.

ACCEPTANCE BY CUSTOMER

You/Customer, by accepting CMTI Services (as defined above), do, as a condition thereof, simultaneously expressly consent to, agree to, and accept, this Agreement (and as amended from time-to-time), and understand that this Agreement shall at all times govern your/Customer's relationship with CMTI throughout the Term. It is your/Customer's sole responsibility to regularly review this Agreement, as it is amended and up-dated from time-to-time.

Cunningham, Montgomery & Torrance, Inc.
8011 Brooks Chapel Road, Unit 2852
Brentwood, TN 37024-3810
support@commercialpayments.com

Last Updated: September 22, 2015