These Terms of Service (“Terms”) set out the terms and conditions that govern use of the Gateway Services (as defined below) and the eWAY mobile application (the “eWAY Application”) and are entered into between the legal entity [or individual] registering for the Gateway Services and eWAY Payments, Inc., a Delaware corporation headquartered at Level 1, 2 Shea St, Phillip, ACT, 2606 (“eWAY”) (each, a “party” and collectively, the “parties”).
BY CLICKING TO SUBMIT YOUR APPLICATION FOR SERVICES (AS DEFINED BELOW) YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH EWAY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS. THE TERMS “EWAY CUSTOMER” AND “YOU” REFER TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU SUBMITTED YOUR APPLICATION FOR SERVICES THROUGH THE SITE (AS DEFINED BELOW). THE GATEWAY SERVICES(AS DEFINED BELOW) ARE ONLY MADE AVAILABLE UNDER THE TERMS TO PERSONS IN THE UNITED STATES THAT OPERATE A BUSINESS SELLING PRODUCTS OR SERVICES, OR TO ACCEPT DONATIONS FOR A BONA FIDE CHARITABLE ORGANIZATION, AND THEY ARE NOT MADE AVAILABLE TO PERSONS TO ACCEPT CARD PAYMENTS FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS OR USE THE SITE, EWAY APPLICATION OR THE GATEWAY SERVICES.
THE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE ESCALATED DISPUTE RESOLUTION AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
THE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY EWAY IN ITS SOLD DISCRETION AT ANY TIME. When changes are made, eWAY will make a new copy of the Terms available at the Site and within the eWAY Application. We will also update the “Last Updated” date at the top of the Terms. Any changes to the Terms will be effective immediately for new users of the Gateway Services and will be effective thirty (30) days after posting notice of such changes on the Site and eWAY Application for existing users. If you do not agree to any change(s) after being notified of such change(s), you must stop using the Site, the eWAY Application and/or the Gateway Services. Otherwise, your continued use of the Site, the eWAY Application and/or Gateway Services constitutes your acceptance of such change(s). eWAY may require you to provide consent to the updated Terms in a specified manner before further use of the Site, the eWAY Application and/ or the Gateway Services is permitted. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. The Services
The “Services” are an integrated payment services solution that consists of: (a) a proprietary point of sale payment gateway (“Gateway”) and services related to your use of the Gateway (“Gateway Services”) that enable you to accept payment through credit and debit cards and other payment cards (“Cards”) to complete business transactions with your End-User Customers (as defined below) (“Transaction(s)”) and include access to forums offered by eWAY through the eWAY website https://eway.io (“Site”) or eWAY Application and an administration area on the Site or eWAY Application through which you can view transaction reports, update details, request refunds, and perform other administrative tasks related to Transactions processed through the Gateway (the “Dashboard”); and (b) access to related payment processing services offered through an independent third party payment processor (“Processor”), which consist of services necessary to authorize the Cards that you submit through the Gateway and interface with banks to effect the transfer of funds between you and any person that purchases your products or services and submits payment information to you (“End-User Customer”) in relation to a Transaction (“Processing Services”). The Gateway connects your systems to the Processor via various connections that eWAY has in place and transmits Card information, such as account number, expiration date and CVV2, and other related information about a Transaction (“Card Data”) to the Processor. eWAY then receives the results of the Transaction from Processor, including authorization and settlement messages, which is then passed back to you (“Transaction Data”). eWAY is not a bank, a money services business (“MSB”) or a money transmitter ("MT"), and eWAY does not offer banking, MSB or MT services as defined by federal and state law. In addition, we do not assume any liability for the products or services purchased using the Services. You will be required to register with eWAY to use the Services. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL NOT HAVE ACCESS TO ANY OF THE SERVICES AND NO LICENSES WILL BE GRANTED TO YOU UNLESS AND UNTIL YOUR APPLICATION FOR SERVICES AND YOUR MERCHANT AGREEMENT HAVE BEEN APPROVED.
2. Establishing the Services
2.1 Application for Services. In order to use the Services, you are first required to submit an online application (“Application for Services”). You agree to submit the information about you and your business as required to complete the Application (“Application Information”). Your Application for Services will include a merchant application package for Processing Services that includes a legally binding agreement with the Processor and its sponsoring bank (“Merchant Agreement”). You must complete the merchant application package, execute the Merchant Agreement and return to eWAY. By submitting your Application for Services, you authorize us to retrieve information about you by using third parties, including credit bureaus and other information providers. You acknowledge that such information retrieved may include your name, address history, credit history, and other data about you. eWAY may periodically update this retrieved information to determine whether you continue to meet our eligibility requirements. You expressly acknowledge and agree that eWAY may share information about you, including but not limited to, your Application Information, with the Processor. By submitting your Application for Services, you represent and warrant that the information you provide is complete, true, current and accurate and does not omit any material information. You agree to maintain and promptly update your Application Information during the entire application process to keep it complete, true, current and accurate. You agree not to submit an Application for Services using a false identity or information, or on behalf of someone other than yourself.
2.2 Approval of Your Application for Services. eWAY reserves the right to approve or reject your Application for Services in its sole discretion based on the Application Information you provide and any additional information that we may retrieve about you. If we reject your Application for Services, we will notify you of our rejection using the information you have provided and you will be unable to sign up for or use the Services.
2.3 Merchant Agreement Subject to Processor Approval. The Processor must review and approve your completed Merchant Agreement package as a part of your Application for Services. By submitting your Application for Services, you agree (a) to provide additional information required by Processor to validate the information you have provided, verify your identity, and assess your business risk, such as your business EIN or tax identification number, business invoices, financial statements, or a business license; and (b) at Processor’s request, to grant eWAY permission to do a physical inspection at your place of business and to examine books and records that pertain to your compliance with the Terms. The Processor may reject your Merchant Agreement for any reason in its sole discretion. If Processor rejects your Merchant Agreement, eWAY will notify you and terminate your Application for Services. If we terminate your Application for Services, you will not be eligible to use the Services. If Processor approves your Merchant Agreement, Processor will issue you an operating account with Processor as an approved merchant (“Merchant Account”) and a merchant identification number (“Merchant ID”).
2.4 Setting Up an eWAY Account. Upon Processor’s approval of your Merchant Agreement, we will create an account through which you can access and manage the Gateway Services (“eWAY Account”). If you have not already done so, you may be required to provide an e-mail address and password for your eWAY Account. Once we have created your eWAY Account, we will complete the process to establish the Services and notify you of the date on which the Services will begin (“Service Initiation Date”).
2.5 No eWAY Liability for Processing Services. You acknowledge and agree that eWAY is not a party to the Merchant Agreement and that the Merchant Agreement is among you, Processor, and the acquiring bank (“Bank”). You understand and acknowledge that the Processor is an independent third party and eWAY is not a subsidiary, division, agent, or representative of Processor. eWAY makes no representations or warranties regarding and shall have no liability related to the Processor’s approval process, your Merchant Account with the Processor, the Processing Services, Processor’s termination of the Processing Services or your Merchant Account, or eWAY’s sharing of your information with Processor.
2.6 Password Policy. Your password for access to your eWAY Account must:
(6.a) Be changed every 90 days.
(6.b) Not be the same as one of your last 4 passwords.
You may not share your eWAY Account or password with anyone, and you agree to (1) notify eWAY immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your eWAY Account at the end of each session.
2.7 Accuracy of Your Information. If you provide any information that is untrue, inaccurate, not current or incomplete, or eWAY has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, eWAY has the right to suspend or terminate your eWAY Account and refuse any and all current or future use of the Site, Gateway Services, and eWAY Application (or any portion thereof).
3. Using the Gateway Services and Your Obligations
3.1 Using the Gateway Services. You agree to perform your obligations under the Terms and to use the Gateway Services in a competent and business-like manner and with reasonable skill and care.
3.2 The Importance of the Information You Provide Us. We agree to provide you the Gateway Services based on your Application Information. If any of your Application Information changes during the term (including information related to your business model and/or the goods and/or services you sell, as applicable), you must update it through your eWAY Account or notify us promptly in writing to keep your information accurate, up to date, truthful and complete.
3.3 Your Systems. You agree that you are responsible, at your own cost, for the provision of all systems and/or other goods or services required to use the Gateway Services, including that such systems:
(3.a) properly collect and deliver to us the Card Data and End-User Customer Data (as defined below) in the manner and form requested and specified by eWAY;
(3.b) use the eWAY Application or Software (as defined below), as applicable, without alteration, modification or adaptation and integrate your website or other systems with our server and the Gateway so as not to affect or in any way prejudice the functionality of the eWAY Application or Software; and
(3.c) hold all forms of End-User Customer Data (as defined below) securely. We take no responsibility for the security of your systems.
3.4 Compliance with Laws and Card Network Rules. You agree that you are solely responsible for carrying out your business operations and performing any and all Transactions in compliance with all applicable federal, state, or local laws and regulations (including regulations, rules and guidance of any governmental or regulatory authority) currently in force (“Laws”). The issuers of Cards, including but not limited to Visa, MasterCard, Discover, JCB and American Express (“Card Networks”), have established guidelines, bylaws, rules, and regulations (“Card Network Rules”). You agree to comply with all Card Network Rules that are applicable to merchants. The Card Networks reserve the right to amend the Card Network Rules. eWAY reserves the right to amend the Terms at any time with notice to you as necessary to comply with Card Network Rules.
3.5 Responsibility for Transactions With Your End-User Customers. In providing or performing services to or for your End-User Customers, you agree to always represent yourself and your business operations as a separate entity and operation from eWAY. We are not responsible for any goods and/or services sold or offered by you. It is your responsibility to determine what, if any, taxes apply to the sale of your products and services and/or the payments you receive in connection with your use of the Gateway Services (“End-User Customer Taxes”). It is solely your responsibility to assess, collect, report, or remit the correct End-User Customer Taxes to the proper tax authority. We are not obligated to, nor will we determine whether End-User Customer Taxes apply, or calculate, collect, report, or remit any End-User Customer Taxes to any tax authority arising from any Transaction.
3.6 Protecting our Reputation and Goodwill. You agree not to undertake any action or failure to act that adversely impacts eWAY’s goodwill, reputation and/or branding.
3.7 Marketing. eWAY reserves the right to use your company or trading name in any promotional or marketing material it deems fit. This may be in the form of print, TV, radio or multimedia (including Web). Example uses may include promotional flyers and website case studies.
4. License Grants
4.1 eWAY Application License. Subject to your compliance with the Terms, eWAY grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the eWAY Application on a single mobile device or computer that you own or control and to run such copy of the eWAY Application solely for your own internal business purposes. Furthermore, with respect to any eWAY Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
4.2 Software License. Subject to your compliance with the Terms, eWAY grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to use any software and associated documentation, other than the eWAY Application, including but not limited to application programming interfaces (“APIs”), that is made available via the Site or the Gateway Services, (collectively, the “Software”) for the sole purpose of enabling you to use the Gateway Services in the manner permitted by the Terms. Any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis.
4.3 Third-Party Materials. As a part of the Site, Gateway Services or eWAY Application, you may have access to materials that are hosted by another party. You agree that it is impossible for eWAY to monitor such materials and that you access these materials at your own risk.
4.4 License Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit all or any portion of the Site, Gateway Services, eWAY Application, or Software (the “eWAY Properties”); (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other aspect of the eWAY Properties (including images, text, page layout or form) of eWAY; (c) you shall not use any metatags or other “hidden text” using eWAY’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the eWAY Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the eWAY Properties; (f) you shall not access the eWAY Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the eWAY Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the eWAY Properties.
4.5 eWAY Rights Reserved. eWAY, its suppliers and service providers reserve all rights not granted in the Terms. Any future release, update or other addition to the eWAY Properties shall be subject to the Terms.
4.6 Termination of License for Unauthorized Use. Any unauthorized use of the eWAY Properties terminates the licenses granted by eWAY pursuant to the Terms.
5. Use of the eWAY Application
5.1 App Stores. You acknowledge and agree that the availability of the eWAY Application and the Gateway Services is dependent on the third party from whom you received the eWAY Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that the Terms are between you and eWAY and not with the App Store. eWAY, not the App Store, is solely responsible for the eWAY Site, Gateway Services and eWAY Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the eWAY Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the eWAY Application. You agree to comply with, and your license to use the eWAY Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the eWAY Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
5.2 Accessing and Downloading the EWAY Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(2.a) You acknowledge and agree that (i) the Terms are concluded between You and eWAY only, and not Apple, and (ii) eWAY, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(2.b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(2.c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between eWAY and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of eWAY.
(2.d) You and eWAY acknowledge that, as between eWAY and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(2.e) You and eWAY acknowledge that, in the event of any third-party claim that the App Store Sourced Application or Your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between eWAY and Apple, eWAY, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(2.f) You and eWAY acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(2.g) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
6. Data Privacy and Security
6.1 Your Responsibility for Security of Data. You are solely responsible for the security of data residing on servers owned or operated by you, or a third party designated by you (e.g., a Web hosting company, data processor or other service provider). You agree to comply with all applicable laws, policies, regulations, and rules governing your provision of Card Data to eWAY and the security, privacy, collection, retention and use of your End-User Customer data, including, without limitation, financial information, Transaction Data, to the extent it includes End-User Customer information, and all other personally identifiable End-User Customer information (“End-User Customer Data”). You agree that you will comply with any and all eWAY security protocols and security advisories in effect during the term. You agree to provide notice to End-User Customers on your website that discloses how and why personal and financial information is collected and used, including uses governed by the Terms.
6.2 No Access to Card Data. You acknowledge and agree that:
(2.a) you have no right in or to Card Data; and
(2.b) eWAY has no obligation to provide you with Card Data or access to Card Data.
6.3 Your Compliance With PCI Standards. You agree that at all times you shall be compliant with the Payment Card Industry (“PCI”) Data Security Standards (“PCI-DSS”) and the Payment Application Data Security Standards (“PA-DSS”), as applicable. If we believe it is necessary based on your implementation and request it of you, you will promptly provide us with documentation evidencing your compliance with PCI-DSS and/or PA-DSS. You also agree that you will use only PCI-compliant service providers in connection with the transmission of Card Data. You must not store Card Data at any time. Information on the PCI-DSS and PA-DSS can be found on the PCI Council’s website. You acknowledge that you are responsible for the security of the Card Data that you provide to eWAY. You warrant that you have taken such precautions as are necessary to ensure that your server and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that your system is breached or you suspect your system has been breached, you shall notify eWAY promptly of such breach or suspected breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future.
6.4 Verifying Transactions. You are solely responsible for verifying the accuracy and completeness of all Transactions associated with your eWAY Account submitted for processing by eWAY and processed by Processor and for verifying that all corresponding funds are accurately processed. You acknowledge that eWAY shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to your eWAY Account, Card Data, End-User Customer Data or Transaction Data.
6.5 Records. You are solely responsible for compiling and retaining records of all Transaction Data and End-User Customer Data for your reference. Except as otherwise provided herein, at no time shall eWAY have an obligation to store, retain, report or otherwise provide any copies of or access to any records of Transaction Data or End-User Customer Data received or submitted for processing by eWAY.
6.6 Transfer of Data. eWAY, its partners, suppliers and/or their agents/contractors may transfer data among themselves as necessary for the purpose of the provision and management of the Gateway Services. We may further transfer data: (i) to third parties assisting us in evaluating your eligibility for, provision of, administration and management of the Gateway Services; (ii) with nonaffiliated entities that assist eWAY in providing products and services that you request; (iii) with companies that provide support services to eWAY or with which eWAY has agreements to provide marketing services on its behalf; or (iv) as otherwise permitted by law.
6.7 eWAY Compliance with PCI-DSS. eWAY will hold and store Card Data in compliance with the PCI-DSS.
7. Fees for Gateway Services
7.1 Applicable Fees. During the term of the Terms you must pay to eWAY the fees for the Gateway Services and other services detailed at http://eway.io/plans-pricing (“Fees”). You warrant that you understand and agree to the Fee structure as outlined at http://eway.io/plans-pricing and that the Fees apply for any Transaction sent to the Gateway, whether successful or unsuccessful, purchase or refund. Unless otherwise stated all Fees are quoted in U.S. Dollars.
7.2 Changes to Fees. eWAY in its sole discretion reserves the right to change any Fees at any time. In the event of an increase in a Fee, that Fee will become payable from the earlier of:
(2.a) Seven (7) days after a notice in respect of the Fee is posted on the Site or provided to you; and
(2.b) Your entry into a new agreement or the renewal of a term.
7.3 Fees for New Services. If eWAY introduces a new service, any Fees for the use of that new service are applicable from the commencement of the new service unless otherwise stated, and by using that new service you warrant that you agree to the Fees applicable to that new service as set out at http://eway.io/plans-pricing .
7.4 Fees Are Net of Any Applicable Sales Tax. If any Gateway Services, or Fees for any Gateway Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to eWAY, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority and you will indemnify eWAY for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that eWAY is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
7.5 Refunds. eWAY offers no refund of Fees.
7.6 Payment of Fees. All Fees and other amounts owed to eWay by you under these Terms shall either (a) be billed by the Processor directly and remitted to eWay; or (b) be paid by you directly through your credit card on file with eWay.
7.7 Fees for Processing Services and Settlement Proceeds. The fees for Processing Services will be established by Processor and subject to the Merchant Agreement. The Processor is responsible for payment of the proceeds due to you as a result of settlement of your Transactions in accordance with your Merchant Agreement.
7.8 Fee Disputes. The parties shall promptly investigate any disputed Fees under these Terms. A dispute will not relieve you of your payment obligations under these Terms. All Fee disputes shall be made in good faith and in writing within thirty (30) days of the billing date. Fees billed shall be deemed accepted where written objections are submitted within such thirty (30) day period.
7.9 Opening/Closing Accounts. If you fail to pay Fees due under these Terms and subsequently open up a new eWay Account, eWay reserves the right to bill the subsequent eWay Account for amounts due under these Terms.
8.1 Ownership of eWAY Properties. The eWAY Properties are protected by copyright, trade secret and other intellectual property laws. eWAY and its licensors and suppliers own all rights, title and interest in and to the eWAY Properties, including, but not limited to, patent rights; copyright, including rights in derivative works; moral rights; rights of publicity; trademark, trade dress and service mark rights; goodwill; trade secret rights; and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.
8.2 Trademarks. and other related graphics, logos, service marks and trade names used on or in connection with the eWAY Properties are the trademarks of eWAY and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the eWAY Properties are the property of their respective owners.
8.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to eWAY through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that eWAY has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to eWAY a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the eWAY Properties.
9.1 Confidential Information. “Confidential Information” for purposes of the Terms means all information acquired or created by eWAY during the course of or in connection with the Services, including information about eWAY, its business, processes, systems, equipment, dealings, transactions, policies, finances, organization or personnel, or about those of its customers or anyone associated with it or them, unless that information is readily available to the public, and shall include (but not be limited to) eWAY's principles, policies, procedures, intellectual property and other documents, or material which eWAY may direct you to treat as confidential information. Without limiting the generality of the foregoing, eWAY's Confidential Information shall include (but not be limited to) eWAY's documents, client lists, client cards, job orders, eWAY's principles, policies and procedures or other documents you came into possession in the course of the Terms.
9.2 Your Use of Confidential Information. You acknowledge and undertake to eWAY that:
(2.a) all Confidential Information provided by eWAY to you or your directors, officers, employees and agents in connection with the Terms or Services and all copies of such Confidential Information made by you or your directors, officers, employees and agents or a third-party is and remains the property of eWAY;
(2.b) You will use the Confidential Information for the sole purpose of the exercise of the rights and performance of the obligations under the Terms;
(2.c) You will only disclose the Confidential Information to such of your officers, employees, agents and advisers to whom it is necessary to disclose the Confidential Information for the purposes of the Terms and the use of the Services;
(2.d) You will not, and will ensure that your officers, employees, agents and advisers will not, use, provide or disclose the Confidential Information to any person, other than as expressly permitted in this clause;
(2.e) You will take all steps necessary to prevent or stop, and comply with all reasonable directions of eWAY in respect of, suspected or actual breaches of, or defaults under this clause;
(2.f) You will promptly notify eWAY if you suspect, or become aware of, any unauthorized access, use or disclosure of any of the Confidential Information and will give eWAY (at your cost if the unauthorized access, use or disclosure is as a result of a breach of, or default under, the Terms) all reasonable assistance in connection with any action which eWAY may take, or proceedings which eWAY may institute, in respect of the unauthorized access, use or disclosure;
(2.g) You will, and will procure that your agents and advisers will, return to eWAY all Confidential Information at the end of the term or upon termination of the Terms; and
(2.h) You agree that you will not during the term of the Terms, or at any time after the termination of the Terms (however this may occur) disclose to any other person (without the previous consent in writing by eWAY) either directly or indirectly, any Confidential Information relating to eWAY of which you became possessed while subject to the Terms, nor use of any such Confidential Information in any manner which may cause or be calculated to cause injury or loss to eWAY however arising.
You shall defend, indemnify, and hold harmless eWAY and its affiliates, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by eWAY, either directly or claimed by a third party arising out of or relating to (a) any breach or alleged breach by you of any representation, warranty, or obligation you have made under the Terms or the Merchant Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by you or any of your employees, agents or End-User Customers; (c) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by you to eWAY; (d) Card Data submitted by you to eWAY and rejected by eWAY, a Processor, or Bank; (e) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from your actions; (f) claims by End-User Customers, including, without limitation, claims relating to the disclosure of Card Data or End-User Customer Data; or (g) any alleged or actual violation by you of any applicable Laws, Card Network Rules, PCI-DSS, PA-DSS or any rules of any regulatory body or agency having jurisdiction over the subject matter hereof. In the event you cause fines and/or penalties to be charged to eWAY by the Card Networks or any other entity, you agree to immediately reimburse eWAY for said fines or penalties. You agree that the provisions of this section will survive any termination of your eWAY Account, the Terms, or your access to the eWAY Properties.
11. Disclaimer of Warranties and Conditions
THE EWAY PROPERTIES ARE PROVIDED BY EWAY ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS. EWAY DOES NOT REPRESENT OR WARRANT THAT THE EWAY PROPERTIES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. YOU MAY NOT RELY UPON ANY REPRESENTATION, WARRANTY OR CONDITION REGARDING THE EWAY PROPERTIES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING REPRESENTATIONS, WARRANTIES OR CONDITIONS OF THE PROCESSOR. EWAY SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE EWAY PROPERTIES, OR ANY OTHER SERVICES OR GOODS, INCLUDING BUT NOT LIMITED TO THE PROCESSING SERVICES. YOU UNDERSTAND AND AGREE THAT EWAY SHALL BEAR NO RISK WITH RESPECT TO YOUR SALE OF PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CARD FRAUD OR CHARGEBACKS.
12. Limitations of Liability
12.1 LIMITATIONS. UNDER NO CIRCUMSTANCES (I) WILL EWAY OR ANY OF ITS PARENTS, AFFILIATES OR VENDORS (OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF EWAY, OR ITS PARENTS, AFFILIATES OR VENDORS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGE OR LOSS SUFFERED OR INCURRED BY YOU, REGARDLESS OF THE FORM OF ACTION, OR ANY LOSS OF REVENUE, PROFITS OR BUSINESS, ANTICIPATED SAVINGS, LOSS OF GOODWILL OR REPUTATION, COSTS OF DELAY, LOSS OR DAMAGED DATA, OR THE INCURRING OF LIABILITY FOR LOSS OR DAMAGE OF ANY NATURE WHATSOEVER SUFFERED BY THIRD PARTIES, ALL WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE), REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) WILL EWAY’S TOTAL AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT EXCEED THE GREATER OF THE AGGREGATE COMPENSATION EWAY RECEIVED FOR PROVIDING THE SERVICES TO YOU DURING THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $1,000. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO EXCLUDE OR LIMIT LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW.
12.2 DISCLAIMER. EXCEPT AS OTHERWISE PROVIDED IN THE TERMS, YOU EXPRESSLY AGREE THAT EWAY SHALL NOT BE LIABLE FOR ANY LOSS (HOWEVER OCCURRING, INCLUDING NEGLIGENCE), ARISING FROM OR RELATED TO: (A) YOUR FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE YOUR EWAY ACCOUNT OR YOUR MERCHANT ACCOUNT; (B) PROCESSOR’S BREACH OF ITS OBLIGATIONS PURSUANT TO THE MERCHANT AGREEMENT; (C) FRAUDULENT TRANSACTIONS PROCESSED THROUGH YOUR USE OF THE GATEWAY SERVICES AND/OR YOUR EWAY ACCOUNT(S); (D) DISRUPTION OF THE SERVICES, EWAY SYSTEMS, SERVERS OR WEBSITES BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (E) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, PROCESSOR OR BANK; OR (F) THE LIMITATION OF THE FUNCTIONING OF ANY SERVICES OR EWAY SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH.
12.3 THIRD PARTY PRODUCTS AND SERVICES. EWAY MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO THIRD PARTY PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO THE PROCESSING SERVICES. YOUR USE OF THIRD PARTY PRODUCTS AND SERVICES IS AT YOUR OWN RISK. EWAY ASSUMES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE USE OF, OR CONCLUSIONS DRAWN FROM, ANY THIRD PARTY PRODUCT OR SERVICE, REGARDLESS OF WHETHER OR NOT EWAY IS A DISTRIBUTOR OF OR REFERRAL AGENT FOR SUCH PRODUCT OR SERVICE.
12.4 BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EWAY AND YOU.
13. Term and Termination
13.1 Term. The Terms become effective on the date you submit your Application for Services and remain in full force and effect until terminated in accordance with this provision.
13.2 Termination by You. You may terminate the Terms by closing your eWAY Account at any time following the instructions on our Site or EWAY Application or by contacting us at the contact information provided in these Terms.
13.3 Termination by eWAY. We may terminate the Terms and close your eWAY Account at any time for any reason effective upon providing you written notice. We may immediately suspend your eWAY Account and your access to the Gateway Services or terminate the Terms without notice if (i) we reject your Application for Services; (ii) Processor declines to continue to provide you with Processing Services for any reason whatsoever including without limitation if your Merchant ID No. is withdrawn or your Merchant Account is closed; (iii) we receive a notice from Processor or Bank that you are no longer entitled to send an authorization message, settlement message, or other message or payment data related to a Transaction to your Processor; (iv) you wish to use the Gateway Services to support a business which is contrary to any applicable Laws or prohibited under the Card Network Rules; (v) we determine in our sole discretion that you are ineligible for the Gateway Services because of the risk associated with your eWAY Account, including without limitation significant credit or fraud risk, or for any other reason; (vi) you have breached any provision of the Terms; (vii) upon request of a Processor, Card Network or Bank; or (viii) we are required to do so by law. You agree that all terminations by eWAY shall be made in eWAY’s sole discretion and that eWAY shall not be liable to you or any third party for any termination of your eWAY Account or the Services.
13.4 Effects of Termination. Upon termination, we will immediately close your eWAY Account and discontinue your access to the Services. You agree to complete all pending Transactions, stop accepting new Transactions through the Services, and immediately remove all Card Network logos from your site, as applicable, (unless otherwise permitted to do so under a separate license from the Card Networks). Upon termination you agree to immediately: (i) cease your use of the Services and (ii) remove any eWAY references and logos from your site, to the extent applicable. In addition, upon termination you understand and agree that (iii) your right to use the Services will terminate immediately; (iv) the license grants under the Terms shall end; (v) we reserve the right (but have no obligation) to delete all of your information, including but not limited to Transaction Data and Card Data, as applicable, and your eWAY Account data stored on our servers; (vi) we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Services, or any termination or suspension of the Services or deletion of your information or eWAY Account data; and (vii) you are still liable to us for any Fees or other amounts incurred by you prior to termination.
14. Customer Service and Support
eWAY will provide you with technical support and customer service via phone, e-mail or live chat with an eWAY representative (“eWAY Customer Support”) to assist you in your implementation and use of the Gateway Services. For support regarding the Processing Services, you may contact eWAY Customer Support, and we will route your inquiries regarding Processing Services to Processor’s customer support service. To access eWAY Customer Support by phone or e-mail, you may contact eWAY using firstname.lastname@example.org or by accessing the contact information available on eWAY’s Site or through the EWAY Application. To access eWAY Customer Support by live chat, click the “support” or “live chat” or related icon on the Site or eWAY Application.
15. Dispute Resolution
15.1 Dispute Resolution Process. To resolve any disputes arising out of or related to these Terms or the eWAY Properties, a party must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”). You may download a form Notice here. The Notice to eWAY should be sent to eWAY, Inc., Attn: 315 Montgomery St, San Francisco, CA, 94104. eWAY will send any Notice to you to the physical address we have on file associated with your eWAY Account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought. If you and eWAY are unable to resolve the claims described in the Notice within forty-five (45) days after the Notice is sent, you or eWAY may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to eWAY at the following address: eWAY, Inc. 315 Montgomery St, San Francisco, CA, 94104. In the event eWAY initiates arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your eWAY Account. Any settlement offer made by you or eWAY shall not be disclosed to the arbitrator.
15.2 Arbitration. Please read this Arbitration Agreement carefully. It is part of your contract with eWAY and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(2.a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by eWAY that cannot be resolved informally pursuant to Section 15.1 or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and eWAY, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(2.b) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Commercial Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(2.c) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(2.d) Time Limits. If you or eWAY pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(2.e) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and eWAY, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and eWAY.
(2.f) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and eWAY in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND EWAY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(2.g) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(2.g) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(2.i) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(2.j) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(2.k) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with eWAY.
(2.l) Small Claims Court. Notwithstanding the foregoing, either you or eWAY may bring an individual action in small claims court.
(2.m) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(2.n) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(2.o) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within San Francisco Count, California, for such purpose.
16.1 Electronic Communications. The communications between you and eWAY use electronic means, whether you visit the Site, use the Gateway Services or EWAY Application, or send eWAY e-mails, or whether eWAY posts notices on the Site, Gateway Services, and EWAY Application or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from eWAY in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that eWAY provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
16.2 Assignment. You may not assign, subcontract, delegate or otherwise transfer the Terms, and your rights and obligations hereunder, without eWAY’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.3 Force Majeure. eWAY shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, wars, hostilities, acts of terrorism, revolutions, riots, civil commotion, national emergency, strikes, lockouts, epidemics, fire, flood, earthquake, force of nature, explosion, embargo, or any other act of God, or any law, proclamation, regulation, ordinance, or other act or order of any court, government or governmental agency.
16.4 Limitations Period. YOU AND EWAY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, OR THE EWAY PROPERTIES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
16.5 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
16.6 Notice. Where eWAY requires that you provide an e-mail address, you are responsible for providing eWAY with your most current e-mail address. In the event that the last e-mail address you provided to eWAY is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, eWAY’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to eWAY at the following address: 315 Montgomery St, San Francisco, CA, 94104. Such notice shall be deemed given when received by eWAY by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
16.7 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.8 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
16.9 Survival. The following provisions of the Terms will survive termination: 6 (Data Privacy and Security); 7 (Fees for Gateway Services); 8 (Ownership); 9 (Confidentiality); 10 (Indemnification); 11 (Disclaimer of Warranties); 12 (Limitation of Liability); 13 (Term and Termination); 15 (Dispute Resolution); 16.4 (Limitations Period); 16.5 (Governing Law); 16.8 (Severability); and 16.9 (Survival).
16.10 Export Control.
(10.a) You acknowledge and agree that the eWAY Properties are subject to the export control laws and regulations of Australia, the United Kingdom, the United States and any country in which the eWAY Properties are developed, received, downloaded, or used. You shall be solely responsible for determining whether your use, release or transfer of the eWAY Properties requires approval or authorization from U.S. or other government authorities, and for securing all required government authorizations.
(10.b) Except as specifically authorized or licensed by the United States Government and other applicable authorities, you represent and warrant that you will not sell, offer, transfer, deliver, or release, either directly or indirectly, the eWAY Properties to any end-user located in or acting on behalf of a country subject to comprehensive trade sanctions, including Cuba, Iran, North Korea, Sudan, Syria, and the Crimea Region of the Ukraine (“Sanctioned Countries”), or end-users that have been designated as prohibited or restricted parties by the Australian Government, the U.S. Government, including the Office of Foreign Assets Control of the U.S. Treasury Department and the Bureau of Industry and Security of the U.S. Department of Commerce, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (“Designated Persons”). You further represent and warrant that you are not located in or acting on behalf of a Sanctioned Country, and are not a Designated Person.
(10.c) Finally, you represent and warrant that you will ensure that any person or entity to which you have granted access to the eWAY Properties has been made aware of, and will comply with this provision and U.S. and other applicable export control laws and regulations.
16.11 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Last Updated: 9 September 2015
1. Contact for Privacy Inquiries
If you have any questions, please contact us at: email@example.com, or 351 Montgomery St, CA, 94104, or +61 2 6175 3000, or access our customer support through the live chat function, where available, on our Site or through our Apps.
2. Children's Privacy Protection
The Site is not intended for persons under the age of 18. If you are under 18 you must ask a parent for permission prior to submitting any information to the Site. eWAY takes special care to protect the privacy needs of children under the age of 13 and eWAY encourages parents to be an active participant in their child's online activities. eWAY abides by the requirements of the Children's Online Privacy Protection Act (COPPA) and other relevant laws. The Site does not target and is not intended for children under the age of 13, and eWAY will not knowingly collect Personal Information from them. If eWAY discovers personal data from a child gathered through the Site, eWAY will eliminate that data.
3. Information We Collect
“Personal Information” means information that allows someone to identify or contact you, such as, for example, your name, address, telephone number, e-mail address, as well as any other non-public information about you that is associated with or linked to any of the foregoing data. The types of Personal Information that eWAY collects varies depending upon the nature of your activity and your relationship with eWAY. We may collect the following types of Personal Information when you use our Site, Apps or Services:
We may receive Personal Information about you from third party sources, including, without limitation, consumer reporting agencies.
When you browse our Site, eWAY may receive information collected automatically through technology. Some of this information may include Personal Information. We may collect information regarding the domain and host from which you access the Internet, the Internet Protocol (“IP”) address of the computer you are using, your Internet Service Provider (“ISP”), browser type, your computer’s operating system, referring/exit pages, date/time stamp for your visit, and clickstream data and anonymous Site statistical data. This information is collected for the purpose of assessing the effectiveness of eWAY’s Site and for security reasons.
We may also collect non-personal information from your mobile device if you have downloaded our Apps. This information is generally used to help us deliver the most relevant information to you. Examples of information that may be collected and used include your geographic location, how you use the Apps, and information about the type of device you use. In addition, in the event our App crashes on your mobile device, we will receive information about your mobile device model software version and device carrier, which allows us to identify and fix bugs and otherwise improve the performance of our mobile application. This information is sent to us as aggregated information and is not traceable to any individual and cannot be used to identify an individual.
Please note that at all times you are responsible for updating your Personal Information to provide us with your most current information.
We may use automatic data collection technology to record other information that identifies your device and tracks your behavior on the Site. We may automatically receive and record information on our server logs from your browser, including your IP address, cookies, and the pages you request, as well as pages you have visited of our partner and affiliate websites and the products you were interested in on that site. At the current time, we do not comply with Do Not Track settings on your browser and the Site will not treat you differently if we receive Do Not Track signals from your browser.
) to help measure traffic and usage trends for the Site, Apps and Gateway Services. Analytics Tools collect information sent by your mobile device, our Site or our Gateway Services, including the web pages you visit, add-ons and other information that assists us in improving the Site, Apps and Gateway Services. We collect and use this analytics information with analytics information from other Users so that it cannot reasonably be used to identify any particular individual User. For information about how to opt out of Google Analytics, please click here:
Any communication with us (regardless of mode) is recorded and stored in order to provide service references, ensure compliance with our service standards and to assist in our staff training and development initiatives.
eWAY may create anonymous data records from Personal Information by excluding information (such as your name) that makes the data personally identifiable to you (“Anonymous Data”). We use such Anonymous Data records to analyze request and usage patterns so that we may enhance the content of the Gateway Services and improve navigation on our Site and Apps. We reserve the right to use Anonymous Data for any purpose and disclose Anonymous Data to third parties in our sole discretion.
We may disclose your Personal Information to consumer reporting agencies, financial institutions and other entities in order to establish your eWAY Account and provide and maintain the Gateway Services.
We may share Personal Information with third party service providers that perform services on our behalf to: provide you with customer service and technical support; facilitate the creation of your eWAY Account; conduct quality assurance testing; analyze usage trends on our Site; administer and improve our Site; store Personal Information; process your payments for the Gateway Services; and provide other services to eWAY.
We may share some or all of your Personal Information with our parent company, subsidiaries, or other companies under a common control (“Affiliates”). We have Affiliates in Australia, the UK, Canada and Asia and so we may disclose Personal Information to recipients in these regions.
If you use any eWAY forum or Community on the Site or through the Apps, you should be aware that any Personal Information you submit there can be read, collected, or used by other Users, and could be used to send you unsolicited messages. We are not responsible for the Personal Information you choose to submit in these forums.
eWAY provides free-of-charge a directory for associated partners to join. eWAY associated partners generally include third party applications that contribute to the functionality of the Gateway Services. The process of registering for the partner directory is initiated and completed entirely by the partner, with all information submitted by the partner. If at any time the partner feels that they no longer wish to be a part of this directory they can request to be removed by e-mailing us at firstname.lastname@example.org.
We may post customer testimonials on our Site, which may contain Personal Information such as the customer's name. We will obtain your consent to use your Personal Information prior to posting the testimonial. If at any time you no longer wish to have any testimonial you have provided posted on the Site you may request for it to be removed by e-mailing us at
If you decide at any time that you no longer wish to accept cookies, then you can instruct your browser, by changing its settings, to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit. Consult your browser’s technical information for how to manage cookies. If you reject cookies, you may still use our Site and Gateway Services, but your ability to use some areas or functionality of our Site or Gateway Services, such as our administration area, may be limited.
eWAY believes that the privacy of its Users is of the utmost importance, and all efforts are made to ensure that any communications from eWAY are carried out to benefit our valued merchants. eWAY uses third-party tools for all mass e-mail campaigns, allowing Users to unsubscribe should they wish to no longer receive e-mails from us. These tools allow us to manage our e-mail lists and ensure that once a User has unsubscribed, the User will no longer be contacted, except as set forth below. These tools abide by anti-spam laws and make all efforts to ensure that any e-mail communication is carried out to benefit recipients.
When you receive communications from us, you may indicate a preference to stop receiving further communications from us and be removed from our mailing lists by choosing to “opt-out” following the unsubscribe instructions provided in the e-mail you receive or by contacting us directly email@example.com. Despite your indicated e-mail preferences, we may continue to send you administrative and service-related communications.