Your Capacity and Related Matters. By accepting the terms and conditions of this Agreement, you represent and warrant that (a) You are 18 years of age or older, (b) all information You have provided to Tixda is true and correct in all respects, and (c) You will update Tixda by e-mail with any changes to information You have previously supplied. You further represent and warrant that You have the legal authority to accept the terms and conditions of this Agreement on behalf of Your company and that such acceptance will be binding on Your company.

This Transaction Processing Terms & Software License Agreement (herein after referred to as the “Agreement”) is entered by and between Tixda, (hereinafter referred to as “Tixda”), and “Merchant,” whose name, complete address, business organization and type of business are stated in records stored by Tixda for “Merchant”. In consideration of the premises set forth herein, Tixda and Merchant hereby agree as follows:

1. Tixda agrees to perform transaction processing services for Merchant. This includes the acceptance and authorization of transactions forwarded from Merchant in a timely manner, the subsequent transmission of transactions to the processing network and the detailed reporting of those transactions via Merchant’s web-based Merchant Portal.

2. By signing this document, Merchant will indemnify, protect, defend and hold Tixda and its vendors, suppliers, third-party agents, and their collective affiliates and / or subsidiaries and all of its or their officers, agents and / or employees, (collectively the “Indemnitees”) harmless from and against any and all claims, losses, demands, actions, expenses, damages, liability, and / or causes of action, including (without limitation) attorneys’ fees, other costs of defense and / or collection fees, which in any way result directly or indirectly from:

  • a. Merchant breach of this Agreement or any warranty or representation made to Tixda or the Indemnitees;
  • b. Any damage or loss caused by negligence, fraud, dishonesty or willful behavior by Merchant or any of Merchant employees or agents;
  • c. Any contention, whether well-founded, baseless or otherwise, that Merchant violated the law or any rule or regulation;
  • d. Any damages resulting from or related to any failure or delay of Tixda or the Indemnitees in providing Transaction Processing services under this Agreement; or
  • e. Any delays in the performance of services hereunder or for any failure to perform same hereunder if such delays are due to strikes, inclement weather, acts of G-d, or other causes beyond Tixda’s or the Indemnitees’ reasonable control. Tixda and the Indemnitees will not be liable for performance of services where delayed by war, riots, embargoes, strikes, or acts of its vendors and suppliers, concealed acts of workmen (whether of Tixda or others), or accidents. The indemnifications provided for in this Article shall survive any termination of this Agreement.

3. Merchant warrants to Tixda all of the following:

  • a. That all representations and statements made by Merchant in this Agreement, or in any other document relating hereto, by Merchant or on Merchant’s behalf are true, accurate and complete in all material respects. Merchant hereby authorizes Tixda to investigate and confirm the information herein. For this purpose, Tixda may utilize credit bureau / reporting agencies and / or its own agents. Upon Merchant’s request, Tixda will provide Merchant with a copy of credit reports used.
  • b. That Merchant is engaged in the lawful business shown on the Agreement which includes the sale of merchandise and / or services, and is duly licensed to conduct such business under the laws of the state, county and city in which Merchant is located.

4. Tixda and the Indemnitees shall not be liable for the individual merit and legitimacy of orders forwarded from Merchant. This liability shall remain the Merchant’s.

5. Tixda and the Indemnitees shall in no event be liable to Merchant or Purchaser (Purchaser is any customer, client, member or entity who elects to buy goods or services from Merchant) for any indirect, special or consequential damages or lost profits arising out of or related to this Agreement, the performance or breach thereof, or the accuracy or correctness of the data being passed to and from Merchant and hereby releases the right to any such claim, even if Tixda and/or Merchant has been advised of the possibility thereof.

6. Any claim or legal action arising out of disputes, failures, misrepresentations, malfunctions, or defects shall be waived. In no event shall Tixda’s liability to Merchant exceed the total amount Merchant paid to Tixda hereunder. Merchant agrees that any cause or action arising out of or relating to this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. Jurisdiction of any legal proceeding arising hereby shall be the state of Delaware, United States of America.

7. Merchant agrees, as a company and/or as an individual, to defend, indemnify, and hold harmless Tixda and the Indemnitees from any and all claims resulting from Merchant’s use of any services contemplated under this Agreement, which cause damage to Merchant or any other party.

8. Tixda and the Indemnitees shall not be responsible or liable for unauthorized access of facilities or to Merchant’s data or programs due to accident, illegal or fraudulent means or devices.

9. Tixda shall retain full ownership of all data submitted by either Merchant or Purchaser through the Tixda Payment Gateway (Payment Gateway refers to the electronic systems through which a Merchant may pass payment information to Tixda) including, but not limited to name, mailing & shipping address, card verification value 2, email address, phone number, dollar amount of purchase, type of purchase and description of purchase.

a. Tixda Privacy Obligation

Tixda will collect, retain, and disclose information and data collected from You and your customers (including data associated with the Tixda Services) in accordance with Tixda’s then current privacy policy as specified by Tixda. You hereby consent, as a condition of Your enrollment in and use of the Tixda Services, to the collection, use, processing and transfer of personal data as described in this paragraph and Tixda’s privacy policies. You understand that Tixda will collect and hold personal or non-public information about You and Your customers, including but not limited to: Your name, address, telephone number and e-mail address for the purpose of considering eligibility for the Tixda Services as well Your customers’ names, mailing & shipping addresses, email addresses, phone number, dollar amount of purchases, types of purchases and descriptions of purchases for the purpose of providing You with the Tixda Services (“Data”). You also understand and agree that Tixda may obtain various consumer reports regarding You from third parties, run a credit check or obtain other personal or credit information about You. You further understand and agree that Tixda, its suppliers and/or their agents/contractors may transfer Data among themselves as necessary for the purpose of the provision and management of the Tixda Services, and that Tixda may further transfer Data to third parties assisting Tixda in evaluating Your eligibility for, provision of, administration and management of the Tixda Services, as well as under circumstances described in Tixda’s privacy policies, as they may be published on the Tixda web site and changed from time to time by Tixda.

b. Data Retention

You are solely responsible for compiling and retaining permanent records of all Transactions and other Data for Your reference. Upon the termination of this Agreement, Tixda shall have no obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or other Data collected or processed by Tixda.

c. 3rd Party / Merchant Obligations

You are solely responsible for the security of data residing on server(s) owned or operated by You, or a third party designated by You (e.g., a web hosting company, processor, or other service provider), including credit card numbers. You shall comply with all applicable laws and regulations governing the collection, retention and use by You of credit card and other financial information. You agree to provide notice to your customers on Your web site that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement. Nothing in this Agreement shall prevent or restrict You from using any information You collect or receive independent of Your performance under this Agreement.

10. Merchant agrees that Tixda’s services shall only be performed for lawful purposes. Any transaction or transmission, which violates any Federal, State, or local laws, is expressly prohibited.

11. Merchant understands that Merchant may not process orders on behalf of any other entity or individual and that the use of the Transaction processing services is provided herein as a service license for a single Merchant account. Any attempt to use the Transaction Processing services provided herein for more than one Merchant account without additional service licenses may result in additional fees and charges and/or the revocation of the service license and termination of this Agreement. This service license is transferable and may be sold, traded, assumed or otherwise transferred to other individual or entity with the express written consent of Tixda.

12. This Agreement may be amended by Tixda at any time upon written or electronic notice to Merchant of not less than ten (10) days prior to the effective date of such amendment.

13. Merchant agrees not to change its type of business, without the express written consent of Tixda.

14. If any provision in this Agreement is invalid, such invalidity shall not affect the validity of the remaining provisions of this Agreement and Merchant and Tixda agree to substitute for the invalid provision a valid provision which most closely approximates the effect and intent of the invalid provision.