Merchant Agreement

Merchant Agreement

PLEASE READ THIS MERCHANT AGREEMENT CAREFULLY BEFORE ACCESSING OR USING EVED. YOU HAVE EXPRESSLY AGREED TO BE BOUND BY THESE TERMS AND OUR PRIVACY POLICY (COLLECTIVELY, THE “AGREEMENT”), BY ACCESSING OR USING EVED AND BY SIGNIFYING YOUR CONSENT DURING THE REGISTRATION PROCESS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE EVED. QUESTIONS AND CONCERNS REGARDING THIS AGREEMENT SHOULD BE DIRECTED BY E-MAIL TO: legal@eved.com. THIS AGREEMENT IS A BINDING LEGAL CONTRACT BETWEEN YOU (“you” or “your”) AND EVED, LLC (“we”, “us” or “our”). TOGETHER WITH ANY ADDITIONAL TERMS GOVERNING SPECIFIC SERVICES, FEATURES AND FUNCTIONS MADE AVAILABLE VIA EVED, THIS AGREEMENT COVERS YOUR USE AND PARTICIPATION IN EVED AND ITS RELATED SERVICES.

THIS AGREEMENT CONTAINS IMPORTANT TERMS AND CONDITIONS THAT AFFECT YOU AND YOUR USE OF EVED, INCLUDING A PROVISION REGARDING BINDING ARBITRATION OF DISPUTES AND A WAIVER OF CERTAIN RIGHTS TO JURY TRIALS AND/OR CLASS ACTIONS. PLEASE READ THE “DISPUTE RESOLUTION” SECTION (SECTION 19) IN ITS ENTIRETY.

WE RESERVE THE RIGHT AT ANY TIME TO CHANGE ANY OF THE TERMS CONTAINED HEREIN OR ANY INFORMATION CONTAINED IN EVED. ANY SUCH CHANGES WILL APPEAR ON THE INDIVIDUAL PAGES OF EVED AND/OR ON THIS SCREEN. BY USING EVED, YOU AGREE IN ADVANCE TO ACCEPT ANY SUCH CHANGES WHICH ARE EFFECTIVE UPON POSTING.

In the event of conflicts between the terms and conditions of any of the related policies and agreements, the terms in the body of this Agreement shall govern unless expressly stated by us to the contrary.

As used in this Agreement, “Eved” means the features and services made available to you from certain sites owned or controlled by Eved LLC, including without limitation, vendorcheckin.com, evedonline.com, eved.com and any replacement site thereof.

1. Eligibility & Rules

1.1 In order to access and use Eved, you are required to register for an account (“Merchant Account”). When registering, you may select the type of Merchant Account to register for. By creating a Merchant Account, you agree to: (a) provide accurate, current and complete account information; (b) maintain the security of your password, not share your password with any other person and accept all risks of unauthorized access to your account; and (c) promptly notify us if you discover or otherwise suspect any security breaches related to Eved.
1.2 By registering for a Merchant Account and each time you access and use Eved, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) all information you submit or post via Eved, including your profile and your Merchant Account is truthful and accurate; (c) you will maintain the currentness and accuracy of all such information; and (d) your use of Eved does not violate any applicable law or regulation. Your Merchant Account may be deleted and your Merchant Account may be suspended or terminated without warning and without any liability whatsoever, if we believe, in our sole discretion, that you are violating this Agreement. Your Merchant Account is subject to verification. We may deny a Merchant Account in our sole discretion without liability to
you. You agree and consent to authorizing us to periodically audit the validity of the information in your Merchant Account. If you are registering on behalf of your company or another entity, you represent that you are authorized to enter into, and bind the entity to, this Agreement and register for Eved.
1.3 Excluding any payment information, we may include any information from your Merchant Account profile to create, maintain, host and publish a directory listing.

2. Grant of Rights to Eved

2.1 Except as otherwise agreed upon, we hereby grant you a limited, nonexclusive, non-assignable or transferable right to access and use Eved solely for your own or your company’s purposes, subject to your compliance with this Agreement. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, rent, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit Eved, except as expressly permitted by us or as permitted under applicable law. Any unauthorized use of Eved is strictly prohibited and will terminate the rights granted in this section. No licenses or rights are granted to you by implication or otherwise, except for the licenses and rights expressly granted to you.

3. Content

3.1 You may submit, post, upload, publish, email, send or otherwise transmit content, including, but not limited to, text, images, photos, videos, sounds, software and other information and materials (collectively, “Content”). Unless otherwise agreed to, we do not claim any ownership rights in or to the Content. By submitting Content though Eved, you grant us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free and fully sublicensable right to use, copy, display, store, adapt, perform and distribute such Content in connection with Eved. You irrevocably consent to any and all acts or omissions by us or persons authorized by us that may infringe any moral right (or analogous right) in the Content. You understand that whether or not such Content is published, we do not guarantee any confidentiality with respect to any such Content.
3.2 Please remember that while Eved is not a public forum, Content is accessible to and viewable by other users of Eved seeking to acquire services (“Buyers”). Except as may be required to register and/or maintain your Merchant Account, do not submit personally identifiable information (e.g. first and last name together, password, phone number, address, credit or debit card number, medical information, e-mail address, or other contact information).
3.3 You are solely responsible for your Content and you represent and warrant that (a) you either are the sole and exclusive rights owner of your all Content that you provide, or you have obtained all rights, licenses, permissions, consents and releases that are necessary to grant to us the rights specified in this section; (b) the provision of your Content, and our subsequent use of such Content, does not and will not infringe, misappropriate or violate any third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable laws or regulations; (c) your Content does not violate our community standards; (d) the Content does not include malicious code, which includes, without limitation, viruses, Trojan horses, worms, time bombs, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data, or passwords; and (e) the Content does not offer or disseminate fraudulent products, services, schemes, or promotions, or promote domain names, URLs, or hyperlinks that constitute commercial content such as that found in advertising, promotions, or solicitations.
3.4 We have no responsibility or liability for Content made available through Eved, and we have no obligation to screen, edit or monitor such content. However, we do reserve the right, and have absolute discretion, to remove, screen or edit Content at any time and for any reason.
3.5 Certain Buyer provided Content may be subject to additional terms, which such terms shall be solely between you and the applicable Buyer. We have no responsibility or liability with respect to your access to or use of such Buyer Content, or any content or functionality contained therein. In no event shall we be considered the licensor or provider of any Buyer Content, to have granted any rights to use any Buyer Content, to have assumed any obligations with respect to the Buyer Content, or to have made any representations or warranties with respect to the Buyer Content.

4. In Using or Accessing Eved You Agree That:

4.1 By accessing or using Eved or the Content, you agree that you will not: (a) access or use Eved or Content in any manner that could interfere with, disrupt, negatively affect or inhibit anyone from fully enjoying and using Eved or the Content; (b) damage, disable, overburden or impair the functionality of Eved or the Content in any manner; (c) access or use Eved or the Content for any illegal or unauthorized purpose, including for the purposes of circumventing Eved, or engage in, encourage, or promote any illegal activity, or any activity that violates this Agreement, community standards or any other terms or policies provided in connection with Eved or the Content; (d) use or attempt to use another user’s account without authorization from such user; (e) modify, adapt, hack or emulate Eved or the Content or “frame”, “mirror” or otherwise copy any portion of Eved without our express written authorization; (f) use any robot, spider, crawler, scraper or other automated means or interface not provided or authorized by us to access Eved or the Content or to extract data; (g) circumvent or attempt to circumvent any filtering, security measures or other features designed to protect Eved or the Content, or third parties; (h) infringe upon or violate our rights and/or those of our users or any third party; (i) attempt to access or search Eved or download Content from Eved through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than via the online platform and/or search agents provided by us; (j) access, tamper with, or use non-public areas of Eved, our computer systems, or the technical delivery systems of our providers; (k) gather and use information, such as other users’ names, real names, email addresses, available through Eved to transmit any unsolicited advertising, junk mail, spam or other form of solicitation; (l) use Eved for any commercial purpose or for the benefit of any third party or in any manner not authorized by this Agreement; or (m) encourage or enable any other individual to do any of the foregoing. We reserve the right to investigate and prosecute violations of any of the above and/or involve and cooperate with law enforcement authorities in prosecuting anyone who violates this Agreement.
4.2 You agree not to sell, distribute, disseminate or link to any sites for marketing, sales, distribution of: firearms, explosives, ammunition, tobacco (including e-cigarettes), alcohol products as well as any products or services that (a) you cannot legally sell, (b) are misrepresented, or (c) if sold using Eved, could cause us or our affiliates and licensors to violate any law, statute or regulation.
4.3 You will not take any actions which may undermine the Merchant referral system, or the Merchant feedback system used to solicit feedback from other users, including without limitation leaving positive feedback for yourself or other users, using secondary Merchant names or third parties or leaving negative feedback if a user fails to perform some action that is outside the scope of the services contracted for via Eved.
4.4 This Agreement applies to all transactions, negotiations and other communications occurring that are initiated or facilitated, in whole or in part, using Eved. While the Agreement establishes the general rules and procedures for such interactions via Eved, the specific terms and conditions of transactions entered into between
such transacting parties (such as pricing, delivery, warranties, refunds and confidentiality) must be established and mutually agreed upon separately by such parties. All transactions conducted through Eved are intended to be carried out between businesses, and not individuals or consumers. To the extent permitted by law, you agree that your dealings with us and any transactions conducted through Eved are not intended to be subject to any consumer protection legislation.
4.5 Eved includes various product and service offerings that permits Merchant to enter into online transactions with Buyers upon terms and conditions mutually agreed upon by Merchant and Buyer. You acknowledge and agree that we are not a party or an agent of any in transactions conducted via Eved. We do not set, control or endorse the price, contract terms, quality, safety, conformance or legality of the products or services advertised or offered for sale via Eved, the ability to sell products and services or the ability of Buyers to buy such products and services. Notwithstanding anything to the contrary, in order to enhance Eved and ensure that Buyers can find the products and services they are seeking, we reserve the right to modify your listing and description of the products and services in the event we believe, in our sole discretion, that such listing or description, including without limitation any categorization, location or type of such products and services does not accurately reflect the nature of the products or services offered. We cannot be held responsible for any Buyer’s failure to comply with laws or regulations concerning their Content. Instead, Eved acts as a technology service that allows you to solicit and market products or services to potential Buyers. We cannot, and do not, control whether any transaction will be completed. We are not responsible for payment or collection with respect to orders made or bids placed on Eved or with respect to products or services made available via Eved. You shall determine, in your sole discretion and without any input from or reliance upon us, which Buyers are authorized to do business with you, which Buyers can view your products, services and technology and which Buyers may bid on or place orders for your products and services. We do not represent or warrant the effectiveness or validity of any transaction in the participating Buyers’ or users’ respective jurisdictions and does not endorse any contracts or agreements arising or resulting from any transaction on Eved.
4.6 If you have a dispute with a Buyer, or suffer any harm arising out of or connected with any Buyer, you hereby waive all claims against and release Eved LLC (and its subsidiaries, employees, officers, directors, shareholders, suppliers, joint ventures and agents) and Eved from any and all liability for claims, demands, damages (actual and consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Eved, any Buyer or with regard to such disputes. If you are a California resident, you waive your rights under 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 known by him must have materially affected his settlement with the debtor.” Residents of other states and nations waive their rights under analogous laws, statutes or regulations.
4.7 Eved is not responsible for credit card charge backs as a result of a billing dispute. All disputes must be resolved directly between you and the applicable Buyers. In the event of a credit card chargeback, Eved is authorized to immediately generate an ACH from the seller for the total amount of the chargeback and retain those funds until such time that the dispute is resolved in Eved’s favor. At such time, Eved shall refund such amounts to the seller, less the Merchant Fees (as defined in Section 7.1) for the initial transaction. If dispute is not resolved in Eved’s favor, then Eved will retain those funds indefinitely. Seller must pursue the dispute directly with the buyer and Eved shall have no liability.
4.8 We own the aggregated and statistical data derived from the operation of Eved, including, without limitation, the number and types of transactions, configurations, and reports processed in Eved and the performance results for
Eved (the “Aggregated Data”). Nothing herein shall be construed as prohibiting us from utilizing the Aggregated Data for purposes of operating our business, provided that our use of Aggregated Data will not reveal your confidential information, including without limitation your specific data entered by you into Eved. Except as set forth above, as between you and us, you retain all right, title and ownership of your Confidential Information.
4.9 We reserve the right, upon reasonable notice, to: (a) charge for access to some or all of Eved, charge for access to premium functionality or Content, or require a subscription or account registration to access some or all of Eved (“Subscriptions”); (b) change terms and conditions for Eved or portions thereof; and (c) restrict access to Eved or portions thereof, in whole or in part, based on any lawful eligibility requirements we may elect to impose (e.g. geographic or demographic limitations). You are responsible for obtaining and maintaining, at your sole cost, your connectivity and all related technology and other equipment and software, and services necessary for you to access and use Eved.

5. Beta Services

5.1 From time-to-time we may release certain new functionalities or services to be made available in connection with Eved (the “Beta Services”). Such Beta Services are pre-release versions of features, functionality or services that have not been generally released to all users. In the event you use, test or evaluate any of the Beta Services as provided by us, you acknowledge and agree that: (a) the Beta Services will be experimental and will not have been fully tested; (b) the Beta Services may not meet your requirements; (c) the use or operation of the Beta Services may not be uninterrupted or error free; (iv) your use of the Beta Services will be for purposes of evaluating and testing the new functionality and services and providing feedback to us; and (d) you shall inform your personnel and other users regarding the nature of the Beta Services. Your use of the Beta Services shall be subject to all of the terms and conditions set forth herein and the Agreement. You shall promptly report any errors, defects, or other deficiencies in the Beta Services to us. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ALL BETA SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE”, WITHOUT WARRANTIES OF ANY KIND. You hereby waive any and all claims, now known or later discovered, that you may have against us and our suppliers and licensors arising out of your use of the Beta Services.

6. Termination

6.1 Without limiting other remedies, we reserve the right to suspend and/or terminate your Merchant Account and/or your right to access and use Eved or Content, whether in whole or in part, if you violate this Agreement or any other terms or policies referenced herein, or if you otherwise create risk or possible legal exposure for us, pose an unacceptable credit or fraud risk to us, or provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.
6.2 You may terminate this Agreement at any time by closing your Merchant Account at any time. Any pending transactions at the time you terminate your Merchant Account will be cancelled. Any funds that we are holding in custody for you at the time of closure, less any applicable fees, will be paid out to you, assuming all payout-related authentication requirements have been fulfilled. If an investigation is pending at the time you close your Merchant Account, we may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds in dispute, we will release those funds to you.
6.3 If your Merchant Account is terminated or suspended, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using Eved and the Content, (c) that the rights granted under this Agreement shall immediately cease, (d) that we reserve the right (but have no obligation) to delete all of your information and
account data stored on our servers, and (e) that we shall not be liable to you or any third party for termination or suspension of access to Eved or for deletion of your information or account data.
6.4 We will not be liable to you for compensation, reimbursement, or damages in connection with your use of Eved, or in connection with any termination or suspension of Eved. Any termination of this Agreement does not relieve you of any obligations to pay any fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement.

7. Merchant Account

7.1 Eved allows you to accept payments from Buyers. Buyers may remit payment to you, and you may remit payment to Buyers via EvedPay, which deposits the payment directly into your Merchant Account or the Buyer’s account via an electronic bank transfer, less a merchant fee, if applicable, in accordance with the then-current posted rates for every payment processed via EvedPay (the “Merchant Fee”). All Merchant Fees are charged at the time the transaction is processed and is deducted first from your Merchant account payment or the Buyer’s account prior to transferring the funds to the applicable Merchant.
7.2 We are not a bank and do not offer banking services. Except for our limited role in processing payments, we are not involved in any underlying transaction between you and any Buyer. We take no responsibility for the quality, fitness, safety, reliability, legality of any transaction. We do not guaranty payment on behalf of any Buyer. You acknowledge that (a) we are acting on your behalf solely to process, administer and maintain funds as part of your Merchant Account, (b) we may use the services of one or more third party processors and/or financial institutions to process your transactions (each a “Processor”), and (c) no partnership, joint venture, employee-employer, franchisee-franchiser, creditor-debtor, escrow, or other fiduciary relationship is intended or created by the establishment of your Merchant Account or this Agreement. We are not your agent in connection with any transaction conducted by you, and we have no liability for, or relationship to, such transaction.
7.3 We will hold money that you collect from Buyers in your Merchant Account (your “Balance”). When you carry a Balance, your funds will be co-mingled and held with other participants’ funds in one or more pooled accounts at one or more FDIC-insured banks by us on your behalf and for the benefit of you and other participants holding balances (each a “Pooled Account”). U.S. dollar balances held in the Pooled Account are eligible for FDIC pass-through insurance as determined by applicable law. We have sole discretion over the establishment and maintenance of any Pooled Account. We will hold the funds associated with your Merchant Account separate from our corporate funds, will not use your funds for our corporate purposes, will not voluntarily make the funds available to our creditors in the event of bankruptcy, and will not knowingly permit our creditors to attach the funds. You will not receive interest or any other earnings on any funds that we handle for you. As partial consideration for using Eved, you irrevocably assign to us all rights and legal interests to any interest and/or other earnings that may accrue or are attributable to our holding of your Balance in a Pooled Account or Reserve Account (described in Section 7.4).
7.4 We may require that you either maintain a minimum balance in your Merchant Account or establish a separate reserve account (a “Reserve Account”) to secure the performance of your obligations under this Agreement. Without limiting the foregoing, we may require a Reserve Account in the event of a Chargeback or if you have a high rate of Chargebacks (described in Section 9), refunds, or complaints from Buyers. We may fund the Reserve Account through any or all of the following, in each case, at such times and in such amounts as determined by us to be sufficient to secure your obligations under this Agreement: (a) funds deposited by you at our reasonable request; (b) funds due to you; or (c) at your election, funds withdrawn by us from any Bank Account (defined Section 8.2) or account designated by you. You hereby (i) grant us a security interest in and lien on any and all funds held in any Reserve Account, and (ii) authorize us to make any withdrawals or debits from the Reserve Account, without prior
notice to you, to collect amounts that you owe us or other users under this Agreement, including without limitation for any reversals of deposits or transfers made to your Merchant Account. You agree to execute any additional documentation required for us to perfect our security interest in any funds in the Reserve Account. This security interest survives for as long as we hold funds in your Reserve Account.
7.5 If there is no activity in your Merchant Account (including without limitation access or payment transactions) for at least two (2) years, consecutively, and you are currently holding a Balance, we will notify you by sending an e-mail to your registered e-mail address and give you the option of keeping your Merchant Account open and maintaining the Balance or withdrawing the Balance. If you do not respond to our notice within thirty (30) days, we will automatically close your Merchant Account and refund your Balance to you. If we cannot refund the Balance to you, we may be required to escheat your Balance to the State in which you reside. Your Balance may be available via your state’s unclaimed property administrator.
7.6 You will all times adhere to all applicable laws, rules, and regulations applicable to your use of Eved, including, without limitation, any acceptable use policies applicable to Eved. Without limiting the foregoing, you may not act as a payment intermediary, aggregator or service bureau or otherwise resell Eved on behalf of any third party, including without limitation the handling, processing, and transmission of funds for any third party. We may inspect your Merchant Account for any reason, including without limitation to investigate any alleged violation of this Agreement, our policies or any third-party complaints. In the event that we determine, in our sole discretion, that your conduct or actions (including, without limitation, your employees) are objectionable, unlawful, potentially infringing, or otherwise in violation of this Agreement or our policies, we may take any action that we deem appropriate and reasonable to protect our systems, facilities, users, or third parties. Such corrective action includes, but is not limited to: (a) issuing a warning; (b) immediately suspending or terminating Eved; and (c) restricting or prohibiting access to your Merchant Account. Subject to applicable law, we may access, use, and disclose transaction information about your use of Eved or your Merchant Account (including without limitation any transfers to your Merchant Account) to: (i) comply with law (e.g., a lawful subpoena); (ii) to enforce or apply our agreements with you; (iii) initiate, render, bill, and collect for Eved; (iv) protect our rights or property; or (v) protect other users from fraudulent, abusive, or unlawful use of Eved.

8. Transactions

8.1 By registering for Eved, you authorize us to hold, receive, and disburse funds on your behalf in accordance with your payment instructions, subject to the terms of this Agreement. To process payment transactions that you authorize, we (or third parties acting on our behalf) may debit or credit (as appropriate) your Balance, or the U.S. checking or other ACH-enabled bank account that you registered with us (your “Bank Account”). If there is an error in the processing of any transaction described above, you authorize us to initiate debit or credit entries to your Balance or Bank Account, as applicable, to correct such error, provided that any such correction is made in accordance with applicable laws and regulations. If we are unable to debit the Bank Account you select for any reason, you authorize us to resubmit the debit, plus any applicable fees, to any other Bank Account or payment instrument that you have on file with us. Your authorizations will remain in full force and effect while you maintain your Merchant Account with us and for any Bank Account listed.
8.2 Funds for any given transaction will not be available until the transaction is deemed complete. As applicable, transactions will be deemed complete when the funds are received by us, including in the Pooled Account. Funds in your Account may be withdrawn only by direct deposit via ACH to your Bank Account. You must have a Bank Account to withdraw funds paid to you using Eved. We may restrict access to funds in your Merchant Account for the
time that it takes for us to complete any pending investigation or resolve a pending dispute or as required by law or court order or if otherwise requested by law enforcement or any governmental entity.
8.3 Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your Merchant Account and your use of Eved, and (b) reconciling all payment activity to and from your Merchant Account and all other transactional information that is associated with your Merchant Account. Upon the termination of this Agreement for any reason, we will have no obligation to you to store, retain, report, or otherwise provide any copies of, or access to, any records, documentation or other information in connection with any transactions submitted by you through Eved.
8.4 You agree to cooperate with us to resolve complaints involving you. You will respond to our inquiries and deliver to us any information reasonably requested by us regarding any disputed transactions within ten (10) business days of our request. If a Buyer files a complaint, we may place the disputed amount on hold and you will not be able to withdraw the amount until the complaint is resolved. We may transfer the disputed amount to the Buyer as a Chargeback to you (as described in Section 9) if you fail to timely respond to a complaint or fail to honor any agreement for the resolution of a complaint. If a dispute arises between you and a Buyer, you release us (and our agents and employees) from any and all claims, demands, and any damages (actual and consequential) in any way connected with the dispute and the transaction. We have no obligation to, and cannot guarantee, we will resolve any disputes related to any transaction.
8.5 Prior to you being able to make your products, services and Content available to Buyers, you shall set and enter your prices to be charged for the products, services and Content you are offering. All prices shall be stated in advance before any party can purchase them.
8.6 We offer tools to help you conduct activities on Eved, such as offering for sale and selling your products and services and enabling you to invoice and collect payments. How you conduct your activities is your responsibility. We are not a party to your transaction and therefore not liable for it. You are solely responsible for your activities, including compliance with applicable laws and regulations, including without limitation any taxes related to the purchase or sale of products or services, collecting, reporting and remitting required taxes to relevant government authorities, and informing your buyer of required taxes, and providing them with compliant invoices as required by law. You also agree that any tax estimates, reporting or related materials, including invoicing that we may provide via Eved are for illustration purposes only, and you may not rely on them to comply with your tax or other legal and compliance obligations.

9. Transaction Reversals and Chargebacks

9.1 The amount of a transaction may be charged back or reversed to your Merchant Account (a “Chargeback”) if the transaction (a) is disputed by the account holder, (b) is reversed for any reason by the Buyer’s financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement (including any policy).
9.2 For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve Account. We may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by our Processor, or processing financial institutions from your Merchant Account (including without limitation any Reserve Account), any proceeds due to you, your Bank Account, or other payment instrument registered with us. If you have pending or anticipated Chargebacks, we may block withdrawals or outgoing payments made from your Merchant Account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction submitted by or authorized by you or on your behalf, we may withhold from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a Buyer’s complaint, in which case we will retain
the funds; (b) the period of time under applicable law or regulation by which the Buyer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to collect the Chargeback, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all account deficit balances unpaid by you.
9.3 If we determine that you are incurring an excessive amount of Chargebacks, we may establish controls or conditions governing your Merchant Account, including without limitation, by (a) establishing new processing fees, (b) creating a Reserve Account in an amount determined by us to cover anticipated Chargebacks and related fees, (c) limiting withdrawals, and (d) terminating or suspending Eved.
9.4 You agree to assist us when requested, at your expense, to investigate any transaction processed through Eved. We will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, we will release the reserved funds to your Merchant Account. If a Chargeback is not successfully contested or you choose not to contest the Chargeback, we may recover the Chargeback amount as described in this Agreement. You acknowledge that your failure to timely assist us in investigating a transaction, including without limitation providing necessary documentation within seven (7) days of our request, may result in an irreversible Chargeback.

10. Payment Terms

10.1 You will pay to us the applicable fees specified in Eved or with respect to any transactions entered into by you. There are no refunds or prorations on Merchant Fees, dues or other fees; no exceptions.
10.2 To the extent permitted by law, we may set off against the Balances or debit your Bank Account or other payment instrument in your Merchant Account for any obligation you owe us under this Agreement, including without limitation any Chargebacks. All fees are charged at the time we process a transaction and are deducted first from the transferred or collected funds and thereafter from the Balance in your Merchant Account. If you owe us an amount that exceeds your Balance, we may charge or debit a payment instrument registered in your Merchant Account. Your failure to fully pay amounts that you owe us will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount collected, including without limitation attorneys’ fees, court costs, collection agency fees, and any applicable interest.
10.3 You are responsible for determining any and all taxes and duties, including without limitation, sales, use, transfer, value added, withholding, and other taxes and/or duties assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with any request for or performance of Eved, your use of Eved, the transactions and related payment, or otherwise in connection with any action, inaction, or omission by you or any affiliate of yours, or any of your or their respective employees, agents, contractors, or representatives (“Taxes”). You also are responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to determine whether Taxes apply and are not responsible for collecting, reporting, or remitting any Taxes arising from any transaction.

11. Ownership

11.1 We own all right, title and interest in Eved, including but not limited to, all methods, processes, content, formats, designs and URLs, together with all inventions, patents, copyrights, trademarks and other intellectual property rights and derivative works and improvements pertaining thereto. Except as expressly set forth in this Agreement, no intellectual property rights are granted to you, either express or implied.

12. Feedback

12.1 You may provide suggestions, comments or other feedback (collectively, “Feedback”) to us with respect to Eved or any of the products and services available via Eved. Feedback is voluntary. We may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the Feedback, you grant us an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with our business, including the enhancement of Eved.

13. Digital Millennium Copyright Act (“DMCA”) Notice

13.1 We are committed to complying with copyright and related laws, and requires all users of Eved to comply with these laws. Accordingly, you may not store any material or content or use or disseminate any material or content though Eved in any manner that constitutes an infringement of third party intellectual property rights, including rights granted by copyright law. Owners of copyrighted works who believe that their rights under copyright law have been infringed may take advantage of certain provisions of the Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is our policy to terminate use privileges of any user who repeatedly infringes the copyright rights of others upon receipt of proper notification to us by the copyright owner or the copyright owner’s legal agent.
13.2 If you feel that a posted message is objectionable or infringing, we encourage you to contact us immediately. Upon our receipt of a proper notice of claimed infringement under the DMCA, we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content in issue.
13.3 If you believe that your work has been copied and posted using Eved in a way that constitutes copyright infringement, please provide our designated agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of where the material that you claim is infringing is located to permit us to locate the material; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the information contained in your report is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
13.4 Our designated agent for notice of claims of copyright infringement can be reached as follows: (a) by E-Mail: legal@eved.com with the subject line “DMCA”; or (b) by mail: Eved, LLC, 5641 Howard Steet, Niles, IL 60714, Attn: DMCA Agent

14. Confidentiality

14.1 Your access or use of Eved may provide you will access to certain non-public information or materials relating to our products, intellectual property, business, marketing programs and efforts, and other sensitive information (“Confidential Information”). Our Confidential Information will be deemed to include all non-public areas of Eved and the content thereof.
14.2 You agree not to disclose Confidential Information except as provided for herein. Confidential Information does not include information that: (a) is or becomes publicly available through no breach by you of this Agreement; (b) was previously known to you prior to the date of disclosure, as evidenced by contemporaneous written records; (c) was acquired by you from a third party without any breach of any obligation of confidentiality; (d) was
independently developed by you without reference to Confidential Information; or (e) is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that you shall promptly inform us in writing and provide a copy thereof, and shall only disclose that Confidential Information necessary to comply with such subpoena or order.
14.3 Except as expressly provided herein, you agree not to use or disclose any Confidential Information without our prior written consent, except disclosure to and subsequent uses by your employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as your obligations under this Section. Subject to the foregoing nondisclosure and non-use obligations, you agree to use at least the same care and precaution in protecting our Confidential Information as you use to protect your own confidential information and trade secrets, and in no event less than reasonable care. You acknowledge that due to the unique nature of the Confidential Information, we will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of our Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, we shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
14.4 On termination or expiration of this Agreement, you will return or destroy, at our option and instructions, our Confidential Information.
14.5 By using Eved, you may receive information about Buyers or other third parties. You must keep such information confidential and only use it in connection with Eved. You may not disclose or distribute any such information or use the information for marketing purposes unless you receive the express consent of Eved or the applicable Buyer. You are solely responsible for compliance with any privacy laws applicable to your use of Eved.
14.6 The collection, use and disclosure of information by Eved is disclosed in our Privacy Policy (http://www.eved.com/privacy-policy). We may share certain contact information (e.g., name, address, e-mail address) with a third party in the event that we receive inquiries for customer service purposes, regulatory or governmental agencies or our Processors. In order to allow you to manage transactions with Buyers, it may be necessary to provide Buyers with certain information, including, the name, e-mail address and any other information in order for the parties to conduct transactions and as may otherwise be necessary under this Agreement (“Merchant Information”). You grant to us a non-exclusive, world-wide, royalty-free license to use the Merchant Information for purposes of performing this Agreement.

15. Disclaimer

15.1 EVED, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SERVICE, PRODUCTS OR TECHNOLOGY OBTAINED THROUGH EVED ARE PROVIDED “AS IS,” WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE, AND NON-INFRINGEMENT; (B) THAT EVED WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, ACCURATE, UNINTERRUPTED, TIMELY, SECURE, OPERATE WITHOUT ERROR, OR WILL CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY; OR (C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR TRADE USAGE. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF EVED AND ANY CONTENT MADE AVAILABLE TO YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OUR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY.

16. Limitation of Liability

16.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER US NOR ANY OF OUR SUBSIDIARIES, DIVISIONS, AFFILIATES, AGENTS, REPRESENTATIVES, VENDORS, LICENSORS OR OTHER THIRD-PARTIES ARE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SERVICES, SHARED CONTENT, OR INFORMATION CONTAINED WITHIN THE SITE, OR ANY CONTENT PROVIDED, OR MADE AVAILABLE, INCLUDING ANY THIRD PARTY SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH EVED, OR ANY SERVICE, CONTENT OR SITE, IS TO STOP USING EVED AND THOSE SERVICES.
16.2 Regardless of the previous paragraph, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) the total fees you paid to us during the month immediately preceding the action giving rise to the liability, and (b) $100, or in the event of a breach of Section 14 (Confidentiality) our liability to you shall not exceed the total subscription fees paid by you to us for access to Eved.
16.3 In no event will we be liable to you for any failure or delay by us (or our employees, agents, or representatives) in performing our obligations under this Agreement, regardless of whether the failure or delay is caused by an event or condition beyond our control. The laws of certain states or other jurisdictions do not allow limitations on implied warranties, or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have rights in addition to those contained in this Agreement.

17. Indemnity

17.1 You will indemnify and hold harmless us, our subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, and Eved user from and against any and all claims, costs, losses, damages, judgments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our policies; (b) your wrongful or improper use of Eved; (c) your failure to comply with any applicable laws or regulations in connection with your use of Eved; (d) any transaction submitted by you or products or services sold or provided by you via Eved; (e) any claim or dispute arising out of products or services offered or sold by you; and (f) your Merchant Account and any transactions that you submit to Eved either for yourself or on behalf of Buyers.

18. Notices

18.1 Except as explicitly stated otherwise, legal notices shall be served on Eved via the e-mail to legal@eved.com. We may give you legal notice by mail or e-mail to the address provided during the registration process. In such case, notice shall be deemed given three days after the date of mailing.

19. Dispute Resolution

19.1 Any dispute which is not resolved within ten (10) days after referral to the parties’ senior executives shall at any time thereafter, at the initiation of either party, be submitted to binding arbitration which shall be the exclusive means for resolving any such disputes. THE PARTIES EACH AGREE THAT, EXCEPT AS MAY OTHERWISE BE
SET FORTH HEREIN, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING TO OR ARISING OUT OF EVED OR THIS AGREEMENT, SHALL BE FINAL AND BINDING ARBITRATION, except that, to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s patent, copyright, trademark, or trade secret rights, then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought. Such arbitration shall be held in Chicago, Illinois, United States of America. Arbitration under this Agreement shall be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA’s Supplementary Procedures for Consumer Related Disputes (the “AAA Consumer Rules”) (collectively the “AAA Rules”). The allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). Arbitrators must be active members of the Illinois Bar or retired judges of the state or federal judiciary of the State of Illinois, with expertise in the substantive laws applicable to the subject matter of the dispute. Arbitrators must have specific experience in sourcing disputes of this kind and not have a relationship with either party. A panel of three (3) arbitrators will be selected by the parties, if the parties are unable to agree on the panel, the arbitrators will be appointed by the AAA administrator in accordance with these provisions. Any costs associated with the arbitration shall be borne by the non-prevailing party. All decisions of the arbitrators shall be binding on both parties. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY AND IRREVOCABLY WAIVE THEIR RIGHT TO A TRIAL BY JURY and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge, without the use of a jury, sitting in a court of competent jurisdiction. This binding arbitration and jury trial waiver provision shall survive termination of this Agreement. Nothing in this Agreement will prevent us from applying for injunctive relief in any court of competent jurisdiction. If each of the countries in which you will be performing the Agreement is a signatory to the New York Convention on the Recognition and Enforcement of Arbitral Awards, the arbitration award shall be enforceable under the convention in all relevant foreign jurisdictions.
19.2 To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING, BUT NOT LIMITED TO, ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to Eved be instituted more than one (1) year after the cause of action arose.

20. Choice of Law; Venue

20.1 The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the United State of America, specifically, State of Illinois, as if performed wholly within the State and without giving effect to the principles of conflicts of law. In the event a claim is not subject to binding arbitration as set forth in Section 19, then the State and federal courts of Illinois shall have jurisdiction over any claim arising hereunder. Any legal action or proceeding relating to Eved or this Agreement which is not subject to such binding arbitration shall be instituted in a state court in Chicago or Cook County, Illinois, or in a federal court in the Northern District of Illinois. Each party hereby agrees to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding. The prevailing party shall be entitled to reasonable attorneys’ fees and expenses.

21. Miscellaneous

21.1 We reserve the right to change, suspend, remove, discontinue or disable access to Eved or Content or particular portions thereof, at any time and without notice. In no event will we be liable for the removal of or disabling of access to any portion or feature of Eved or Content. If any provision of this Agreement is held to be invalid or unenforceable, that provision will be deemed to be restated to reflect as nearly as possible the original intention in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. In our sole discretion, we may assign this Agreement without your consent. You may not assign this Agreement without our express consent. Nothing contained in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Headings are for reference purposes only and do not limit the scope or extent of such section. Our failure to act with respect to a breach does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement. You may report complaints or post comments by emailing legal@eved.com