CMAX/Cleveland, Inc. ("CMAX") provides its service to the Client ("you") subject to the following Terms of Service ("TOS") and CMAX's Privacy Policy for its CheckMAX-asp Services. In addition, when using specific CheckMAX-asp Services, you and CMAX will be subject to any guidelines or rules applicable to these Services, which CMAX may communicate to you or post from time to time. These guidelines or rules and CMAX's Privacy Policy shall be deemed part of the TOS.
CMAX currently provides users with online business applications branded as CheckMAX-asp (the "Services"). Unless explicitly stated otherwise, any new features that augment or enhance the current Services, including any new CheckMAX-asp Services, will be subject to the TOS. In addition, CMAX offers goods and services of various merchants ("Merchants") through its Integrated Merchant's Services ("Integrated Merchant Services"). The Intgrated Merchant Services are subject to the TOS.
In order to use the Services, you must obtain access to the World Wide Web, either directly or through devices that access Web-based content, and pay any service fees associated with such access. You must provide all equipment necessary to make such connection to the World Wide Web, including a computer, modem, router or other access device.
In consideration of your use of the Services, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form of the Services (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or CMAX has reasonable grounds to believe that such information is untrue, inaccurate, not current or incomplete, CMAX has the right to suspend or terminate your account and to refuse any and all current or future use of the Services (or any portion thereof).
4. Your obligation to pay fees
You agree to pay all subscription, service and use fees CMAX charges you for the Services. You agree to pay all costs (including attorney's fees) incurred by CMAX in collecting overdue fees from you, and to pay a late charge on any overdue fees at a rate equal to the lesser of 1.5% per month or the maximum rate allowed under applicable law. You also agree to pay all foreign, federal, state and local taxes applicable to your access, use or receipt of the Services.
You may designate a number of users under your account, which corresponds to the level of Services you are receiving from CMAX, and you may provide and assign access and passwords to such users. You will be responsible for the confidentiality and use of your access number(s), password(s), and account number(s). You will be responsible for all electronic communications, including account registration and other account holder information, e-mail and financial, and other data ("Electronic Communications") entered through or under your access number(s), password(s) or account number(s). CMAX will act as though any Electronic Communications it receives under your access number(s), password(s) or account number(s) will have been sent by you. You agree immediately to notify CMAX if you become aware of any loss or theft or unauthorized use of any of your access number(s), password(s) and/or account number(s).
The Services allow you to send Electronic Communications directly to CMAX and interact within applicable areas of the Services. Electronic Communications include your business's financial and business data that you send through the Services (the "Data"). You acknowledge and agree to the following with respect to use of Electronic Communications through the Services:
CMAX shall be entitled, but is not obligated, to review or retain your Electronic Communications for your compliance with the TOS and the security of the Services. CMAX may also review or retain Electronic Communications (other than Data) for other reasons that CMAX believes in good faith will improve the quality of the Services;
CMAX may disclose Electronic Communications if required to by law or in the good-faith belief that such disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the TOS; (iii) respond to claims that any Electronic Communications violate the rights of third parties; or (iv) protect the rights, property, or personal safety of CMAX, its users or others;
You will not use any Electronic Communication for any purpose that is unlawful, abusive, harassing, libelous, defamatory, obscene or threatening. Neither you, nor someone on your behalf, will use the Services to solicit CMAX customers or others for any purpose;
You will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights;
You will not in any way express or imply that any opinions contained in your Electronic Communications are endorsed by CMAX;
You agree to provide CMAX with your e-mail address, promptly provide CMAX with any changes to your e-mail address and accept Electronic Communications from CMAX at the e-mail address you specify;
You agree that CMAX may provide notices, statements and other communications to you solely through e-mail, posting on the Services or other electronic transmission; and
You understand that the technical processing and transmission of the Services, including your Electronic Communications, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
You agree to use software produced by third parties, including, but not limited to, "Client" software that supports a data security protocol compatible with the protocol used by CMAX. Until notified otherwise by CMAX, you agree to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by CMAX and to follow CMAX's logon procedures for Services that support such protocols. You acknowledge that CMAX is not responsible for notifying you of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet. You acknowledge that it is possible that Electronic Communications may be accessed by unauthorized third parties when communicated between you and CMAX using the Internet, other network communications facilities, telephone or any other electronic means.
You acknowledge that CMAX may establish general practices and limits concerning use of the Services. You acknowledge that CMAX reserves the right to disable accounts that are inactive for an extended period of time. You further acknowledge that CMAX reserves the right to change these general practices and limits at any time, upon notice as provided in Section 18 below.
The security of your Data may be maintained through the use of data encryption, data security protocols, passwords and other methods which CMAX may employ, or which CMAX may suggest or require that you employ. You agree that CMAX has no responsibility or liability either for the deletion or failure to store any Data transmitted by you or anyone else to the Services or the operation, or failure, or weakness, of any data encryption, data security protocols, passwords or other security methods employed by CMAX.
You acknowledge and agree that the Services and any necessary software used in connection with the Services ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in sponsor advertisements or information presented to you through the Services or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Software, in whole or in part. You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.
CMAX grants you a non-transferable, non-exclusive and terminable right and license to use the object code of its Software; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Software or any part thereof or otherwise attempt to discover any source code, or sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or to the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Services. You agree not to access the Services by any means other than through the interfaces that are provided by CMAX for use in accessing the Services.
"CMAX", the CMAX logo, "CheckMAX-asp", CheckMAX-asp logo, and other CMAX trademarks, service marks, logos and product and service names are marks of CMAX (the "CMAX Marks"). You agree not to display or use the CMAX Marks in any manner without the owner's express prior written permission.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CMAX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
CMAX MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (iv) ANY ERRORS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CMAX, OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
NO, FINANCIAL, LEGAL OR TAX ADVICE OR COUNSEL IS GIVEN, OR SHALL BE DEEMED TO HAVE BEEN GIVEN, BY THE SERVICES.
NEITHER THESE TOS, NOR ANY DOCUMENTATION FURNISHED UNDER THEM, ARE INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE INTEGRATED MERCHANT SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE SOFTWARE PROVIDED BY CMAX WILL PROVIDE UNINTERRUPTED, TIMELY OR ERROR-FREE SERVICE. THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS AND YOU MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS YOUR REQUIREMENTS. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE INTEGRATED MERCHANT SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. CMAX AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF CMAX IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM YOUR USE OR INABILITY TO USE THE MERCHANT'S INTEGRATED SERVICES OR THE SOFTWARE, OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE MERCHANT INTEGRATED SERVICES OR THE SOFTWARE. CMAX'S LIABILITY TO YOU SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY YOU TO CMAX OVER THE COURSE OF THE EXISTING TERM.
YOU AGREE NOT TO RESELL OR ASSIGN OR OTHERWISE TRANSFER YOUR RIGHTS OR OBLIGATIONS UNDER THESE TOS WITHOUT THE EXPRESS PRIOR WRITTEN AUTHORIZATION OF CMAX.
NEITHER CMAX, NOR YOU SHALL BE LIABLE TO THE OTHER FOR ANY DELAY OR FAILURE IN PERFORMANCE UNDER THESE TOS RESULTING DIRECTLY OR INDIRECTLY FROM FORCE MAJEURE EVENTS.
IN NO EVENT WILL CMAX BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE ITEMS) EVEN IF CMAX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. YOU AGREE THAT THE LIABILITY OF CMAX ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN ANY WAY CONNECTED WITH THE SERVICES WILL NOT EXCEED THE AMOUNT YOU PAID FOR THE SERVICES. CMAX shall not be liable for any loss resulting from a cause over which CMAX does not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines; telephone or other interconnect problems; bugs, errors, configuration problems or incompatibility of computer hardware or software; failure or unavailability of Internet access; problems with Internet service providers or other equipment or services relating to your computer; problems with intermediate computer or communications networks or facilities; problems with data transmission facilities or your telephone or telephone service; or unauthorized access, theft, operator errors, severe weather, earthquakes or labor disputes. CMAX is not responsible for any damage to your computer, software, modem, telephone or other property resulting from your use of the Services or the Integrated Merchant Services. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold CMAX harmless from and against any and all claims, losses, liability costs and expenses (including but not limited to attorneys' fees) arising from your violation of the TOS, state or federal laws or regulations, or any third party's rights, including but not limited to infringement of any copyright, violation of any proprietary right and invasion of any privacy rights. This obligation will survive the termination of the Services and/or the Integrated Merchant Services.
CMAX reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services and/or the Integrated Merchant Services (or any part thereof) upon notice to you. You agree that CMAX shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services and/or the Integrated Merchant Services.
You agree that CMAX, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Services and/or the Integrated Merchant Services, and remove and discard any Electronic Communications within the Services, for lack of use or if CMAX believes that you have violated or acted inconsistently with the letter or spirit of these TOS. CMAX may also in its sole discretion and at any time discontinue providing the Services and/or the Integrated Merchant Services, or any part thereof. You agree that any termination of your access to the Services and/or the Integrated Merchant Services under any provision of these TOS may be effected upon notice to you, and acknowledge and agree that thereafter CMAX may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files, the Services and/or the Integrated Merchant Services; however, in the event that your Services and/or the Integrated Merchant Services with CMAX terminates, CMAX will use commercially reasonable efforts to return your Data to you electronically, in an appropriate format selected by CMAX, as promptly as is reasonably possible after such termination, provided you have complied with the TOS and have paid in full all amounts owed to CMAX. Further, you agree that CMAX shall not be liable to you or any third party for any termination of your access to the Services and/or the Integrated Merchant Services; provided, however, that if the termination is unrelated to your acts or omissions CMAX will refund the pro rata portion of any fee that may have been paid by you for the portion of the Services not furnished to you as of the date of such termination.
The Services and/or the Integrated Merchant Services may provide, or third parties may provide, links to other World Wide Web sites or resources. Because CMAX has no control over such sites and resources, you acknowledge and agree that CMAX is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that CMAX shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
Notices to you from CMAX may be made by either e-mail or regular mail. CMAX may provide notices of changes to the TOS, modification or termination of the Services and/or the Integrated Merchant Services or other matters by e-mail to you or by displaying notices or links to notices to you on the Services and/or the Integrated Merchant Services.
CMAX may modify the TOS upon notice to you. If CMAX sends you notice, via e-mail, posting on the Services and/or the Integrated Merchant Services or otherwise, of a modification, you confirm your acceptance of the modification by not closing and/or by continuing to use the Services and/or the Integrated Merchant Services.
The TOS constitute the entire agreement between you and CMAX and govern your use of the Services and the Integrated Merchant Services, superseding any prior agreements between you and CMAX with respect to the subject matter contained in the TOS. The TOS may only be modified or amended as set forth above in Section 19 or otherwise in a writing signed by CMAX and you. The TOS and the relationship between you and CMAX shall be governed by the laws of the State of Tennessee without regard to its conflict of law provisions. The failure of CMAX to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS shall remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the Integrated Merchant Services or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. The Section titles in the TOS are for convenience only and have no legal or contractual effect.