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User Agreement:
This Service Agreement is made by and between Bjorkman International, Inc. ("PayWide") and you (the "Client"). In consideration of the mutual covenants herein contained and intending to be legally bound by the provisions of this Agreement, the parties agree as follows: Description of Services PayWide will provide to Client and Client will purchase from PayWide a service which allows PayWide to accept payments for Client's services over the Internet via checking accounts and telephone billing. As part of the Service PayWide also provides the Client with access to a admin area which allows the Client to track sales and make certain administrative changes to its account(s) on-line. Definitions: The following terms are defined for use in this Agreement: "Agreement" means this Service Agreement for PayWide's services. "Client" means the individual or business entity that agrees to these terms and conditions and intends to use PayWide's services to sell access. "Customer" means any person desiring to purchase access to the Client's services via PayWide "Customer Charge" means the amount to be charged to the Customer's account for the purchase of access. "Delayed Funds" means funds withheld from client sales in order to cover Revokes and Refunds or Client indemnification obligations hereunder. "PayWide Check Service" or "Online Checks" means the PayWide service which allows PayWide to accept payments for Client's services via checking accounts. "PayWide Telephone Billing Service" or "Telephone Billing" means the PayWide service which allows PayWide to accept payments for Client's services via a 900 number and/or dialer. "Proof of Purchase" means an authentication provided to Customer by PayWide for use as an access device to Client's services. "Refund" means a Customer Charge via the Service which PayWide, the Client, or the Customer and PayWide, or the Customer and Client identify as being invalid or non-collectible after initial acceptance on account of fraud, lost, canceled, unissued, invalid account identification, an unresolved customer complaint, or other cause which results in the deduction of the Customer Charge from moneys otherwise payable to PayWide. "Revoke" means a Customer Charge via PayWide Check or PayWide Telephone Billing services which the Customer's bank or telephone services provider identify as being invalid or non-collectible after initial acceptance on account of fraud, lost, canceled, unissued, invalid account identification, an unresolved customer complaint, or other cause which results in the deduction of the Customer Charge from moneys otherwise payable to PayWide. "Service" means the PayWide service and any related services. "Software" means Software and related documentation provided by Paywide to Client in connection with the Service. "Total Revenue" means Client's revenues for the applicable service (Telephone Billing or Online Checks) before the deduction of applicable Delayed Funds, Service Fees, and any other charges or obligations. Fees and Delayed Funds: Fees for Online Check Services. Service fees for PayWide Check Service are equal to a percentage of Client's Total Revenue for the PayWide Check Service after the deduction of Customer Refunds. The applicable service fee percentage is based on the Client's Total Revenue for PayWide Check Service (after the deduction of Refunds and Chargebacks) during the relevant billing period. Price Chart Fees for PayWide Telephone Billing Service. PayWide's service fees for Telephone Billing are equal to a percentage of Client's Total Revenue for Telephone Billing after the deduction of Customer Refunds and Revokes. The applicable service fee percentage is based upon the retail amount charged for the Client's services as follows: Price Chart Fees for PayWide Dialer Service. PayWide's service fees for Dialer are equal to a percentage of Client's Total Revenue for Dialer after the deduction of Customer Chargebacks. Price Chart Delayed Funds for PayWide Checks. PayWide will withhold 10% of Client's Total Revenue for PayWide Checks for a period of six months as Delayed Funds to cover Returns, Revokes and Refunds for PayWide Checks services. PayWide shall have the right, in it's sole discretion, to adjust the amount held and holdback period as is deemed necessary as security against future Customer Returns, Revokes and Refunds or indemnification obligations hereunder. Delayed Funds for PayWide Telephone Billing. PayWide will withhold 20% of Client's Total Revenue for PayWide Telephone Billing for a period of six months as Delayed Funds to cover Revokes and Refunds for PayWide Telephone Billing services. PayWide shall have the right, in it's sole discretion, to adjust the amount held and holdback period as is deemed necessary as security against future Customer Revokes and Refunds or indemnification obligations hereunder. Delayed Funds for PayWide Dialer. PayWide will withhold 20% of Client's Total Revenue for PayWide Dialer for a period of six months as Delayed Funds to cover Chargebacks and Revokes for PayWide Dialer services. PayWide shall have the right, in it's sole discretion, to adjust the amount held and holdback period as is deemed necessary as security against future Customer Chargebacks and Revokes or indemnification obligations hereunder. Accepting Online Checks: Client understands that there is a several day delay between signup and when a check clears the bank or is rejected and that during that time a member/subscription will have full access to Client's site, even though the transaction may be be declined or returned by the bank. Accepting 900#: Client understands that PayWide uses a third party vendor for 900# transactions. Because PayWide does not receive funds from the 900# provider until at least 60 days after the end of the month, in which a consumer uses the 900#. PayWide payment to Client will be within two weeks after PayWide receives payment from the 900# provider. PayWide can not guarantee that it will receive funds from the 900# provider and Client therefore waives any right to try to collect from PayWide if for any reason PayWide doesn't receive funds from the 900# provider. Accepting Dialers: Client understands that PayWide uses a third party vendor for dialer transactions. Because PayWide does not receive funds from the dialer provider until at least 60 days after the end of the month, in which a consumer uses the dialer. PayWide payment to client will be within two weeks after PayWide receives payment from the dialer provider. PayWide can not guarantee that it will receive funds from the dialer provider and client therefore waives any right to try to collect from PayWide if for any reason PayWide doesn't receive funds from the dialer provider. International consumers will be billed and pay in their local currency. Client's payment will be in US currency and will be converted by the third party vendor. Client's Description of Services, Payment Options: When providing a description of services to potential customers on a page which contains a link to the PayWide billing page, the page must at a minimum state: The customer's cost for the service offered (or cost of the call for Telephone Billing). A description of the service. That PayWide is a service of Bjorkman International, Inc. with a link to: http://PayWide.com. For PayWide Telephone Billing services, anytime the 900 number is displayed, the charges for the call and all other requirements listed above must also be displayed, at the same time and for the same duration. The minimum price that Client can charge is $2.95 per transaction. The maximum is $99.99 per transaction. Payment to Client: <!-- PayWide Checks Services. Client payouts are calculated weekly based on activity from the Sunday thru Saturday. PayWide will process payments to Client one payment period in arrears. For example, payments for the 1st through the 15th are processed on the 1st of the following month. Payment shall be delivered to Client as promptly as is practicable after processing. The payment due the Client is equal to the sum of Client's Total Revenues during the specified time period along with any Delayed Funds due to be released LESS (i) the sum of all Customer Chargebacks and Revokes processed during the period, (ii) the sum of all Customer Refunds processed during the period, (iii) the applicable Delayed Funds, (iv) the applicable service fee, and (v) all taxes, penalties, charges and other items reimbursable hereunder or otherwise occurring during the period including but not limited to any indemnification obligations. PayWide Telephone Billing Service. Client payouts are calculated on a weekly basis. Payments due the Client are processed every Monday of each week two months in arrears. For example, payments for transactions occurring through January will be processed on March 15th. PayWide will remit payment to Client as promptly as is practicable after processing for all reconciled sales for which PayWide has received payment from the telephone services provider. PayWide will only remit payment for reconciled sales for which PayWide has received payment from the services provider. The payment due the Client is equal to the sum of Client's Total Revenues during the specified time period (for those revenues PayWide has received payment for) along with any Delayed Funds due to be released LESS (i) the sum of all Customer Revokes processed during the period, (ii) the sum of all Customer Refunds processed during the period, (iii) the Delayed Funds, (iv) the service fee, and (v) all taxes, penalties, charges and other items reimbursable hereunder or otherwise occurring during the period including but not limited to any indemnification obligations. --> Payment Minimum, Stop Payments. Client payments shall only be made at the end of a payment period where the payment due to the Client is in excess of $50. If the payment due to the Client at the end of a payment period is less than $100, then payment to the Client shall be held over to end of the succeeding payment periods until such time as the accumulation of Client's payments equal or exceed $100. Should PayWide's payment to Client never equal or exceed $100 at any point in the twelve month period beginning on the Client's activation of service, the payment shall be forfeit to PayWide to cover administrative charges. Client shall be responsible for all charges associated with requests to stop payment on any checks issued by PayWide. Payment via U.S. Mail. There is a no charge for payments made via U.S. Mail. Should Client's payment be returned to PayWide as undeliverable, PayWide will attempt to contact the Client via e-mail. If PayWide is unable to contact the Client via e-mail and a second consecutive payment is returned as undeliverable, Client's payment shall be forfeit to PayWide to cover administrative charges. Payment by ACH Direct Deposit (U.S. Bank Accounts only). There will be a no charge against Client's account for payments made to Client via ACH. The Client's bank may charge an additional fee for accepting ACH deposits. There is a 20 day pre-note verification period before the first ACH deposit can be made. Deposits will not be made if the amount due is less than $100. Any outstanding balances not credited to Client shall roll over to Client's next billing cycle. By participating in ACH Direct Deposit Client authorizes PayWide to deposit amounts owed Client by initiating credit entries to Client's account at the financial institution indicated on the form submitted to PayWide. Client further authorizes Bank to accept and to credit any credit entries indicated by PayWide to Client's account. In the event that PayWide deposits funds erroneously into Client's account, Client authorizes PayWide to debit Client's account for an amount not to exceed the original amount of the erroneous credit, and Client shall be personally liable for any amounts that are not available for debit. The authorization to use ACH Direct Deposit shall remain in force until such time as PayWide and Client's bank have received written notice from Client of its termination in such a time and manner as to afford PayWide and Client's bank reasonable opportunity to act on such notice. Payment by Wire Transfer. There will be a charge of $50 against Client's account for each wire transfer made. Deposits will not be made if the amount due is less than $100. Any outstanding balances not credited to Client shall roll over to Client's next billing cycle. Client authorizes PayWide to deposit amounts owed Client by initiating credit entries to Client's financial institution indicated on the form submitted to PayWide. Client further authorizes Client's financial institution to accept and credit any entries indicated by PayWide to Client's account. In the event that PayWide deposits funds erroneously into Client's account, Client authorizes PayWide to debit Client's account for an amount not to exceed the original amount of the erroneous credit, and Client shall be personally liable for any amounts that are not available for debit. This authorization is to remain in full force and effect until PayWide and Client's financial institution have received written notice from Client of its termination in such time and manner as to afford PayWide and Client's financial institution reasonable opportunity to act on such notice. General Conditions: Payment to Client or Owner only. PayWide will only direct payments to the Client, the owner or parent company of the Client, or the Client's registered fictitious or "DBA" name. Payments to affiliates partners of Clients shall be made only as provided under PayWide's Affiliate program. Payments will not generally be made to agents or representatives of Clients. Taxpayer or Employer ID required for Clients who are US Persons. A valid social security number or Employer's ID number will be required in the sign-up process as a condition of making payment to any individual citizen or resident of the United States or a domestic corporation, partnership, or limited liability company. Foreign individuals and entities need to supply a Tax Identification number Payment to an Address, Bank Account, or Payee located outside of the United States. By accepting this Agreement as provided below, Client represents to PayWide that any payment on its account to an address, bank account, or payee located outside of the United States of America is neither income from sources within the United States nor income effectively connected with the conduct of a trade or business within the United States. PayWide may refuse to deliver payments outside the United States of America for any Client with respect to which the foregoing is not true unless Client furnishes PayWide with documentation required by the Internal Revenue Service for such payments. Compliance with Laws Regarding Money Transfer and Money Laundering. PayWide reserves the right to require Client to furnish PayWide with such additional information concerning Client's business or its ownership as may be necessary to assure PayWide's compliance with the laws of any state or the United States or any other applicable jurisdiction concerning money transfer, money laundering, or similar subject. PayWide may refuse to provide services, or withhold payments to Client without liability if Client does not promptly furnish PayWide with information requested hereunder. Affiliate Program: Clients participating in the Affiliate program, authorize PayWide to pay any Affiliate(s) on Client's behalf. Further, Client authorizes PayWide to first deduct any amounts due to be paid on Client's behalf to Affiliate(s) from any funds that are due Client during each processing period. Funds withheld for Affiliates are paid by PayWide weekly on each Monday. Client understands that Affiliates will be responsible for their portion of Returns and Refunds, however, when funds are not available for the Affiliate to cover these adjustments, any shortage will be adjusted from Client's Account(s). Client understands that any requests made by Client to modify, suspend, or terminate payment to Affiliate(s) will not be honored once Affiliate(s) has processed any transaction on behalf of Client, unless payment to Affiliate(s) would be unlawful. PayWide reserves the right to modify, suspend, or terminate any Affiliate for any reason, without prior notice. End User Information: Client understands that any information accepted by PayWide from end users is the property of PayWide, and shall remain the property of PayWide upon cancellation of this Agreement. Client Transaction Limits: The maximum Customer may charge for any single transaction is $100. Should Client request to increase this limit for any reason PayWide agrees to review such request in good faith along with the Client to determine whether such request can be accommodated in light of Client's existing and projected sales levels and Returns, Revoke and refund levels. Customer Transaction Limits: In order to prevent the occurrence of fraudulent transactions PayWide may impose reasonable limits on the amount or number of purchases which may be charged to an individual Customer account during any time period, or refuse to accept orders from Customers with a prior history of questionable charges. Refund Policy: PayWide will use commercially reasonable efforts to direct inquiring and complaining Customers to utilize the customer support services offered by Client in order to resolve all disputes and complaints, however, PayWide reserves the right to issue a Refund without the knowledge or consent of Client in any case that it deems appropriate. PayWide Customer Support: PayWide shall be responsible for all customer support issues regarding billing or the Service. Client Customer Support: Client shall be responsible for all customer support issues other than billing. Client shall have the ability to reasonably respond to inquiries from its Customers promptly and shall endeavor to resolve disputes with Customers amicably. The occurrence of complaints from Customers and/or inquiries or Returns regarding Client's services may be cause for termination of this Agreement if such events occur with unacceptable frequency as determined in the sole discretion of PayWide. In addition, PayWide reserves the right to charge Client reasonable fees and recover its expenses on account of excessive customer inquiries, Refunds, or Returns. Prior to imposing such fees and attempting to recover its costs, PayWide shall notify Client of the details and nature of the problems and attempt to find mutually acceptable solutions. If PayWide and Client are unable to achieve mutually acceptable solutions, Client shall have the option of continuing this Agreement subject to the additional fees and costs imposed by PayWide,or of terminating this Agreement. Password Security: The security of Client's PayWide account is dependent in part upon the Client maintaining the confidentiality of the PayWide passwords. Client is wholly responsible for maintaining the confidentiality of Client's password and account and for any and all activities that occur under Client's account. Client E-Mail, Account Changes: Client must provide a valid, working administrative e-mail address on enrollment. Any changes to Client's account via e-mail must be made via the administrative e-mail address provided on enrollment. The security of Client's PayWide account is dependent in part upon the Client maintaining the security of the administrative e-mail address as provided to PayWide by Client. Any changes to Client's account via e-mail must be made via the administrative e-mail address provided on enrollment. PayWide shall not be responsible for any unauthorized changes made to Client's account via this e-mail address. Tangible Goods or Property: Client may not use the Service as a means to accept payment for the sale or use of tangible goods or property of any kind under this Agreement Regulation Authorization, Client Representations: Client represents and warrants that it is legally authorized and has obtained all necessary regulatory approvals and certificates to provide any services it intends to offer. Client further represents and warrants that it will comply at all times with all applicable federal, state/provincial, or local laws, rules and regulations including any applicable card association or Automated Clearing House rules. Client Information. Client is responsible for providing information which is timely, complete, truthful, and not misleading. Client will notify PayWide of any changes of ownership, regulatory actions or financial conditions that could materially affect PayWide's rights under this Agreement. Confidentiality, Intellectual Property. PayWide's services and all information and documentation relating thereto shall be held in confidence by Client and may not be used by Client (other than for the furtherance of the purposes of the Agreement) nor disclosed to third parties without PayWide's prior written consent. This includes the discovery of any errors or omissions in the services. The terms and conditions of this Agreement may not be disclosed or made available by either party hereto to third parties without the prior written consent of the other party. Notwithstanding anything in this Agreement to the contrary, either party may disclose to third parties the fact that Client is using PayWide's services. Client recognizes that the services and documentation are and contain the valuable, confidential and trade secret information of PayWide. Software: In consideration for payment of any applicable fees, Client is granted a personal, non-exclusive, non-transferable license to use the Software, in object code form only, solely in connection with the Service (the "License"). Client shall not: (i) attempt to reverse engineer, decompile, disassemble or otherwise translate or modify the Software in any manner; or (ii) sell, assign, license, sublicense or otherwise transfer, transmit or convey Software, or any copies or modifications thereof, or any interest therein, to any third party. All rights in the Software, including without limitation any patents, copyrights and any other intellectual property rights therein, shall remain the exclusive property of PayWide and/or its licensors. Client agrees that the Software is the proprietary and confidential information of PayWide and/or its licensors subject to the provisions of Section 146 ("Confidentiality") above. The License shall immediately terminate upon the earlier of: (I) termination or expiration of this Agreement; (II) termination of the Service(s) with which the Software is intended for use; or (III) failure of Client to comply with any provisions of this Section. Taxes: The Client is fully responsible for and agrees to pay all taxes and other charges imposed by any government authority on the services provided under this Agreement and on any transactions processed pursuant to this Agreement. Limitations of Liability: PayWide ASSUMES NO LIABILITY FOR DISRUPTIONS OR IMPROPER OPERATION OF THE SERVICE FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, VANDALISM, THEFT, ACTIONS OF THIRD PARTY SERVICE PROVIDERS, PHONE SERVICE OUTAGES, INTERNET DISRUPTIONS, EXTREME OR SEVERE WEATHER CONDITIONS OR ANY OTHER CAUSES IN THE NATURE OF "ACTS OF GOD" OR FORCE MAJEURE. PayWide SHALL NOT BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING ANY LOSS OF PROFIT, REVENUE, SOFTWARE OR DATA, EVEN IF PayWide IS ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN NO CASE SHALL CLIENT BE ENTITLED TO RECOVER DAMAGES FROM PayWide WHICH EXCEED THE SUM OF THE AMOUNTS OF FEES RETAINED BY PayWide UNDER THIS AGREEMENT DURING THE ONE MONTH PRIOR TO THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES. Disclaimer of Warranties: EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, PayWide MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY PayWide SERVICES, RELATED PRODUCTS, SOFTWARE OR DOCUMENTATION. PayWide SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Indemnification: Client agrees to indemnify and hold harmless PayWide, its employees, officers, agents, and directors from any and all fines, penalties, losses, claims, expenses (including attorney fees), or other liabilities resulting from or in connection with this Agreement. PayWide assumes no liability of Client for failure to comply with this Agreement and any results caused by the acts, omissions or negligence of Client, sub-contractor or an agent of Client or an employee of any one to them, including, but not limited to, claims of third parties arising out of or resulting from or in connection with Client's products or services, messages, programs, caller contracts, promotions, advertising, infringement or any claim for libel or slander or for violation of copyright, trademark or other intellectual property rights. PayWide may deduct the above described fines, penalties, losses, claims, expenses (including attorney fees and the allocable costs of in-house counsel), or other liabilities from the Reserve, or if the Reserve is inadequate, directly from the proceeds of Client's sales. Term: The term of this Service Agreement shall be for 12 months beginning upon execution of this document by Client and subsequent acceptance by PayWide, and shall automatically renew at the end of each consecutive 12 month period unless PayWide receives written notice of non-renewal from Client no less than 30 days prior to the expiration of such 12 month period. PayWide reserves the right to terminate this Agreement without cause upon 30 days prior notification to Client. PayWide may further terminate this Agreement immediately without notice at any time Client breaches any part of this Agreement. Upon termination, notice of non-renewal or cancellation of this Agreement payment shall be made in accordance with the Section entitled "Payment", above. Default: In the event Client defaults in any provision or fails to perform pursuant to this Agreement, PayWide shall be entitled to damages, costs and attorney's fees from the Client. Survival of Claims: Any claim arising out of or related to this Agreement must be brought no later than one year after it has accrued. Invalid or Non-enforceable Provisions: The invalidity or non-enforceability of any provision of this Agreement, as so determined by a court of competent jurisdiction, shall not affect the other provisions hereof, and in any such occasion this Agreement shall be construed in all respects as if such invalid or non-enforceable provision were omitted. Account Claims and Disputes: If another person or entity makes a claim against funds in Client's account, or if PayWide has reason to believe there is or may be a dispute over matters such as ownership of the account or the authority to receive payment, or make changes to the account, PayWide may, in its sole discretion, (1) continue to rely upon current PayWide documents; (2) honor the competing claim upon receipt of evidence PayWide deem satisfactory to justify such claim; (3) freeze all or part of the funds until the dispute is resolved to PayWide's satisfaction; or (4) pay the funds to an appropriate court of law for resolution. Choice of Law/Venue: This Agreement shall be construed and enforced in accordance with the laws of the State of Florida and the venue for any action, dispute or proceeding with respect to this Agreement shall be Hillsbourgh County, Florida. Captions: The captions in this Agreement are for convenience only and shall not be used in interpreting, construing, performing or enforcing this Agreement. Amendments and Modifications: No Amendment or modification of this Agreement shall be valid unless same is in writing and signed by all parties hereto. PayWide may amend this Agreement to take into account changes in law or regulations or industry mandates and to accommodate changes imposed on PayWide, and to make other changes deemed necessary by PayWide, by sending Client a specimen of the changed Agreement, or making a specimen of the changed agreement available upon a web page located on the internet. Unless Client rejects the changed Agreement and terminates this Agreement by notice to PayWide in writing within 15 days after PayWide sends the changed Agreement, or makes said changed agreement available on the internet, the changed Agreement shall replace this Agreement and be in full force and effect. Notices Any and all notices to PayWide, or other communications under or with respect to this Agreement to PayWide, shall be in writing, and shall be delivered by hand; mailed postage pre-paid, either by registered or certified mail, return receipt requested; or by overnight courier to the following address: Bjorkman International, Inc. 17854 Lake Carlton Drive Lutz, FL 33558-6325 Attn: Legal Department Or via email: legal@PayWide.com Notices to Client shall be made to the administrative e-mail provided by Client on enrollment with PayWide. Survival of Obligations: The rights and obligations of the parties hereunder which by their nature would continue beyond the termination or cancellation of this Agreement (including, without limitation, those relating to confidentiality, payment of charges and limitations of liability) shall survive any termination or cancellation of this Agreement. Transfer and Assignment: Client may not sell, assign or transfer any of its rights or obligations under this Agreement without the prior written consent of PayWide (which consent may not be unreasonably withheld). Authorization; Entire Agreement: The persons signing or otherwise accepting this Agreement on behalf of the Client represent and warrant that they have the authority to enter into this Agreement on behalf of the Client. This Agreement contains the entire agreement of the parties and supercedes any other agreements (written or oral), instruments or writings as to its subject matter. Acceptance: By clicking "I Agree", "I Accept"; or by using or attempting to use the Service; or by signing an PayWide signature page which states that you understand and agree to these terms and conditions, Client agrees that Client has read, understands, and agrees to abide by this Agreement, and any documents incorporated by reference, and Client agrees that Client intends to form a legally binding contract; and that this Agreement constitutes "a writing signed by Client" under any applicable law or regulation. Any rights not expressly granted herein are reserved by Bjorkman International, Inc.
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Information subject to change without notice. PayWide® and PayWide Logos™, are all registered service marks of Bjorkman International, Inc.
All rights reserved. © 2004 Bjorkman International, Inc.
