ADVANCING TECHNOLOGY SYSTEMS LLC
Pawn Payment Solutions and PAWN-PAY.COM
MERCHANT SERVICES and LICENSE AGREEMENT
IMPORTANT: READ THIS MERCHANT SERVICES AND LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE PROCEEDING. IN ORDER TO USE Pawn Payment Solutions® SOFTWARE ("Pawn Payment Solutions”) USE OF THE SERVICE CONSTITUTES AN AGREEMENT TO THESE TERMS BY YOU. IF YOU DO NOT WANT TO BE BOUND BY THE TERMS OF THIS AGREEMENT, PROMPTLY LOG-OFF OF THIS PROGRAM AND YOU WILL RECEIVE A REFUND OF THE PRO RATA PORTION OF ANY FEE YOU MAY HAVE PAID FOR THE PORTION OF SERVICES NOT FURNISHED TO YOU AS OF THE DATE OF TERMINATION. THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR AGREEMENT THAT YOU HAD WITH ADVANCING TECHNOLOGY SYSTEMS LLC, AS DEFINED IN THE NEXT PARAGRAPH, CONCERNING THE USE OF Pawn Payment Solutions.
For purposes of this Agreement, the words "we", "us", "our" and "ATS" mean and refer to ADVANCING TECHNOLOGY SYSTEMS LLC, its sister companies, subsidiaries and any agent, independent contractor or assignee that ATS may, in its sole discretion, involve in the provision of Pawn Payment Solutions. The words "You" and "Your" refers to the end user of the service, and all other visitors and users of Pawn Payment Solutions accessing or using Pawn Payment Solutions, including but not limited to the owners, shareholders, members, partners, officers, directors, employees, agents, guests, invitees, pawn customers, and affiliates, and any other person or anyone acting on its behalf has granted access to Pawn Payment Solutions.
- License Grant. ATS is the owner of all right, title and interest in Pawn Payment Solutions. ATS hereby grants to You, and You accept, a nonexclusive, nontransferable license to use Pawn Payment Solutions on a single computer or computer network owned, leased, or otherwise controlled by You. Except as expressly set forth above, as an essential condition in the utilization of Pawn Payment Solutions contemplated by this Agreement, You may not copy, modify, reverse engineer, decompile, disassemble, assign, sublicense, transfer, pledge, lease, rent or otherwise share Pawn Payment Solutions.
- ATS's Rights. You acknowledge and agree that ATS retains all title and ownership of Pawn Payment Solutions and that ATS does not convey any title or ownership interest in Pawn Payment Solutions to You. You further acknowledge and agree that the only right granted to You by this Agreement is the limited license to use Pawn Payment Solutions according to the terms and conditions of this Agreement.
- Term. This Agreement will commence immediately your first use of the service. Thereafter, this Agreement will continue for the two-year duration of the Processing Agreement and thereafter, unless and until either party terminates this Agreement as provided herein. ATS may terminate this Agreement upon Your breach of any term of this Agreement. In the event ATS terminates the Agreement due to Your breach, You will forfeit all fees paid to ATS and will not be due a prorated refund.
- New Services. ATS or its third party licensors or licensees, may, from time to time, introduce new online services and information as part of Pawn Payment Solutions. ATS will notify You of the existence of these new services. Access to such new services shall be subject to the terms and conditions of this Agreement.
- Please contact your account executive, relationship manager or our customer service department for information regarding any monthly fee you may be charged for Pawn Payment Solutions.
- Applicable fees, if any, do not include, and You shall be solely responsible for, any and all taxes of whatever nature, including without limitation, withholding taxes or other taxes imposed by foreign jurisdictions, federal, state and local taxes and surcharges applicable to the services rendered under this Agreement, excluding taxes based on the income of ATS. ATS shall not be liable for, and You shall pay directly and indemnify and hold ATS and its affiliates harmless from and against any and all liability for, all such taxes and/or surcharges.
- Termination of Service. ATS may terminate the service offered by Pawn Payment Solutions hereunder at any time for any reason. In the event such termination is for any reason other than a breach of this Agreement by You, ATS will refund to You a pro rata share of any unearned prepaid fees, if applicable.
- Equipment. You are responsible for and must provide all telephone and other equipment and services necessary to access Pawn Payment Solutions.
- Customer Support. ATS shall provide certain support and services to You, including: (i) production and distribution of user documentation which describes Pawn Payment Solutions and (ii) customer support services by email, and (iii) web development support if requested under separate agreement.
- System Availability. You acknowledge and agree that, although You will generally have access to the Pawn-Pay.com website and your information twenty-four hours per day, seven days per week (except in the event of a force majeure event), access to customer accounts and certain other services may not be available on a continuous basis and Pawn Payment Solutions will be subject to periodic downtime to permit hardware and/or software maintenance to take place.
- Data Storage. ATS may, from time to time, delete, purge or otherwise dispose of Your account data which is over 90 days old. In addition, only a limited amount of data or information may be available online. Therefore, You are advised to print and download Your account data, for record keeping purposes, on a periodic basis. You specifically agree that ATS shall not be responsible for the deletion or disposal of your data or information from Pawn Payment Solutions.
- Copyrighted Material. Pawn Payment Solutions and Pawn-Pay.com (including the website), contains or may contain copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, and graphics. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, whether copyrighted, trademarked or proprietary, or otherwise. You may download copyrighted material solely for Your own use as contemplated under this Agreement. Except as expressly provided by copyright law, any copying, redistribution, or publication must be with the express permission of ATS and the owner(s) or such authorized person(s), if other than ATS. In any copying, the redistribution or publication of copyrighted material and any changes to or deletion of author attribution or copyright notice is expressly prohibited.
- Your Responsibilities. You shall use Pawn Payment Solutions and any components thereof for lawful purposes only. You shall not post or transmit through Pawn Payment Solutions any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasion of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, or which, without ATS's express prior approval, contains advertising or any solicitation with respect to products or services. Any conduct by You that restricts or inhibits anyone other than You from using Pawn Payment Solutions, as determined by ATS, will not be permitted and is cause for immediate termination of this Agreement.
- Security of Information. ATS will take all commercially reasonable steps to maintain the security of Pawn Payment Solutions. However, You recognize and agree that there is no guarantee of absolute security of information that is communicated over the Internet, and that the foregoing security measures may change over the term of this Agreement. You acknowledge that all information transmitted and received through the Internet or other electronic means is subject to unauthorized interception, diversion, corruption, loss access or disclosure. You are encouraged to read our Privacy Statement for further terms and information.
- Compliance with Laws. You shall comply fully with the requirements of all applicable federal, state and local laws and regulations. Furthermore, You are solely responsible for monitoring legal development applicable to the operation of Your business, interpreting applicable laws and regulations, determining the requirements for compliance with all applicable laws and regulations, and maintaining an on-going compliance program. Please read our Privacy Statement for further terms and information.
- ATS, its subsidiaries and their respective employees, officers, directors, affiliates, agents, licensors, or licensees do not make and hereby expressly disclaim any representation or warranty (i) that access to Pawn Payment Solutions will be uninterrupted or error free, (ii) that security breaches will not occur with respect to any information communicated through Pawn Payment Solutions the Internet, or any common carrier communications facility, (iii) as to the results that may or may not be obtained by You in connection with Your use of Pawn Payment Solutions.
- ATS, ITS PARENTS AND SUBSIDIARIES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, THIRD PARTY SERVICE PROVIDERS, AGENTS, LICENSORS, LICENSEES DO NOT MAKE ANY WARRANTY, GUARANTEE OR REPRESENTATION (EITHER EXPRESS OR IMPLIED) REGARDING THE MERCHANTABILITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF Pawn Payment Solutions OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT, AND ALL SUCH WARRANTIES, GUARANTEES AND REPRESENTATIONS ARE HEREBY EXPRESSLY DISCLAIMED. ALL SERVICES PROVIDED UNDER THIS AGREEMENT AND Pawn Payment Solutions ARE PROVIDED ON AN "AS-IS, WITH ALL FAULTS" BASIS.
- Indemnification. You agree to indemnify and hold ATS, its parents and subsidiaries and their respective employees, officers and directors, licensors, and licensees harmless from and against any claims and expenses, including reasonable attorneys' fees, related to any breach of this Agreement by You or any negligence or willful misconduct with respect to Your use of Pawn Payment Solutions.
Limitation of Liability.
- You acknowledge and agree that neither ATS, its parents and subsidiaries nor its licensees or licensors shall be liable to You for any claims, damages, losses, obligations, costs or expenses or other liability arising directly or indirectly from or otherwise concerning (i) any termination, suspension, delay or disruption of service (including billing for a service) by the Internet, any common carrier or any third party service provider; (ii) any failure, disruption or malfunction of Pawn Payment Solutions the Internet, or any communications network, facility or equipment beyond ATS's, its licensors, or a third party provider's reasonable control, whether or not attributable to one or more common carriers; (iii) Your failed attempts to access Pawn Payment Solutions or to complete transactions via Pawn Payment Solutions; (iv) any failure to transmit, obtain or collect data or for human, machine or software errors or faulty or erroneous input by You; (v) any damages resulting from any delays and/or losses arising in connection with the services provided hereunder; or (vi) any loss of or inability to access data or information stored or generated by Pawn Payment Solutions or ATS.
- Notwithstanding anything to the contrary in this Agreement or elsewhere, ATS’s and/or its licensors' cumulative liability to You for any claim related to this Agreement and Your use of Pawn Payment Solutions (whether arising from tort, statute, contract or otherwise) shall in all cases be limited to the actual, direct and proven out-of-pocket losses, damages or expenses suffered or incurred by You arising from ATS's willful misconduct or gross negligence. Furthermore, ATS's or its licensors' cumulative liability to You shall not, in any case, exceed the fees paid solely under this Agreement to ATS by You during the month preceding the month in which the claim arose.
- Notwithstanding anything to the contrary in this Agreement or elsewhere, in no event shall ATS or its licensors be liable to You or to any third party for any indirect, special, incidental, consequential, punitive or unproven losses, damages or expenses of any kind, including, without limitation, lost profits or loss of goodwill arising from the use or inability to use Pawn Payment Solutions including, without limitation, the inability access your data or information generated or stored on Pawn Payment Solutions, and regardless of whether such claim arises in tort, in contract or by statute or regulation.
- Both ATS and You acknowledge and agree that the provisions and limitations of this Section 18 are of the essence of this Agreement and that absent them, neither ATS nor You would have entered into this Agreement.
- Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of Georgia, excluding its conflict of law provisions.
- Account Control Certifications. You acknowledge that this Agreement and Your use of Pawn Payment Solutions may be subject to U.S. economic sanctions and embargo laws, including, but not limited to, the Trading With the Enemy Act, the International Emergency Act, the Patriot Act, and similar laws, violations of which may be subject to U.S. civil and criminal penalties. You specifically represent and warrant that You have not been designed by the U.S. Department of Treasury's Office of Foreign Assets Control ("OFAC"), as a Specially Designated National or blocked person, that You have no reason to believe that You would be considered a blocked person by OFAC, and that You are not acting as agent of, or in collusion with, or on behalf of any such person. You further represent and warrant that You are not employed by, acting as agent of partially owned or controlled by a government, a government-controlled entity or a government corporation except as You have disclosed to your bank.
- Severability. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms of this Agreement.
- No Waiver. The failure of either party to enforce any rights granted by this Agreement or to take action against the other party in the event of any breach of this Agreement shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
- Amendment. This Agreement may be modified, amended or replaced by ATS from time to time upon notice to You on the Pawn Payment Solutions website or other form of written notice; provided, however, that if ATS sends You any such notice, via electronic communication, a posting on this website or otherwise, of any such modification, amendment or replacement, You confirm Your acceptance of the modification, amendment or replacement by not closing and/or by continuing to use and access Your account on Pawn Payment Solutions.
- Force Majeure. ATS shall not be liable for any delay or failure to carry or make continuously available any ATS website and/or Pawn Payment Solutions if such delay or failure is due to any cause beyond the reasonable control of ATS or any of its third party providers, licensors or licensees, including without limitation restrictions of law or regulations, labor disputes, acts of God, mechanical or electronic breakdowns, telecommunication facilities breakdowns or software bugs, errors or failures. ATS's obligations hereunder are subject to its ability to obtain and maintain any and all required governmental licenses, permits or other authorizations, and their ability to comply with any and all laws, regulations, orders and other governmental directives which may be imposed on the Internet, any ATS website or Pawn Payment Solutions with respect to any of the foregoing.
- Additional Terms. You acknowledge that You have read and these additional terms, understand them and agree to be bound by the terms and conditions they set forth.
- Entire Agreement. You acknowledge that You have read this Agreement, understand it and agree to be bound by its terms and conditions. This Agreement is the complete and exclusive statement of the Agreement between You and ATS and supersedes any prior agreements, proposal, representation or warranty between You and ATS regarding Your use of Pawn Payment Solutions.