ONLINE-TRANSACTION PROCESSING SERVICE AGREEMENT

Transcription

1 ONLINE-TRANSACTION PROCESSING SERVICE AGREEMENT As is described in more detail in Section 1 below, Kelly Registration Systems, Inc. s (herein, Company ) online transaction processing service, available at (herein, the Website ) 1 and accessible only with a username/license number and password issued by the applicable state agency or other entity, allows its users to submit data and any applicable fees to multiple state agencies and other entities (collectively, the Service ). This Online-Transaction Processing Service Agreement (herein, Agreement ) is made between, and is binding upon, the Company and any person or entity who accesses or otherwise uses the Service (herein, you ). BY CLICKING ON I ACCEPT OR ACCESSING OR USING ANY PART OF THE SERVICE, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK ON I DO NOT ACCEPT, AND YOU MAY NOT ACCESS OR USE ANY PART OF THE SERVICE. 1. The Service (a) Online Offerings. The Service allows you to perform any or all of the following tasks online, which tasks are collectively referred to as Online Offerings : (i) submit secure and verifiable document(s) to state agencies and other entities (herein, Document Submission ); (ii) apply for various license(s), permit(s) and certification(s) (herein, License Registration ); (iii) renew various license(s), permit(s) and certification(s) (herein, License Renewal ); (iv) register various products (herein, Product Registration ); (v) renew various product registration(s) (herein, Product Registration Renewal ); (vi) submit tonnage reports to state agencies and other entities (herein, Tonnage Report Submission ); and (vii) pay invoices for certain services received from state agencies and other entities ( Invoice Payment ). The Company regularly reviews and revises the Online Offerings, and in the future might include additional state agencies or other entities. Your access to and use of the Service is licensed and not sold. Company agrees to provide you with non-exclusive access to and use of the Service, subject to the terms and limitations set forth in this Agreement. (b) Provision of Data. You provide to Company all data required by a particular state agency or other entity for each Online Offering you request (herein, Data ). (c) Agency Fees. You must remit to Company any fees charged by a state agency or other entity for each License Registration, License Renewal, Product Registration, Product Registration 1 The Website contains web pages that are available without a username/license number and password ( Public Pages ) and web pages that are available only with a username/license number and password issued by the applicable state agency or other entity ( Private Pages ). This Agreement applies only to your use of the Private Pages. Your use of the Public Pages is governed by the Terms of Use found on the Website at

2 Renewal, Tonnage Report Submission and Invoice Payment you request (herein, License Registration Fee, License Renewal Fee, Product Registration Fee, Product Registration Renewal Fee, Tonnage Report Submission Fee and Invoice Payment Fee, respectively; collectively, Agency Fees ). (d) Convenience Fee. The Company may charge a convenience fee for your use of the Service (herein, Convenience Fee ). If the Online Offering you select requires a Convenience Fee, then you must remit the Convenience Fee to the Company. The Convenience Fee will not be refunded to you by the Company under any circumstances. (The Agency Fee and the Convenience Fee are collectively referred to herein as Fees. ) (e) Transmittal of Data and Fees. Once the Company receives sufficient funds from you for the applicable Fees, Company will transmit your Data and any necessary Agency Fee to the applicable state agency or other entity for the processing of each Online Offering you request. (f) Charges. Currently, Company accepts payment in the form of credit card, bank debit, Automated Clearing House transactions ( ACH ) or check (with the payment by check being accepted for Product Registrations only). Company will not pay interest on any funds it holds for you. If paying by credit card or bank debit, additional credit card transaction fees or bank debit transaction fees may also apply. If funds received by Company must be returned to you at any point, Company may charge a processing fee as a result of such return. In addition, an insufficient funds fee may also be charged for all checks returned for insufficient funds. You are responsible for, and Company will not collect, any and all telephone access fees or Internet service fees that may be assessed by your telephone and/or Internet service provider. (g) Limited Appointment of Agent. You hereby appoint Company to act as your agent for the purpose of performing each Online Offering you request, based on the Data you provide, and to remit any applicable Agency Fee in your name to the applicable state agency or other entity. You agree that Company is not an insurance agent for you or any insurance company and that Company acts merely as a data processor in any transaction that involves insurance. Without limiting the foregoing, you also agree that Company does not act as your agent and shall not be responsible or liable to you in any of the following situations: (1) your receipt of certificates of Registration or Renewal, or any other confirmation forms generated by the applicable state agency or other entity; (2) your receipt of correspondence from the applicable state agency or other entity; (3) your receipt of notices or other information from the applicable state agency or other entity, including but not limited to renewal and cancellation notices; and (4) signing any document on your behalf. (h) Accessibility. You acknowledge and understand that from time to time the Service may be inaccessible or inoperable for any reason, including but not limited to the following: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; and (iii) causes beyond the control of Company or which are not reasonably foreseeable by Company.

3 2. Representations and Warranties You represent and warrant to Company the following: (a) you are over the age of eighteen (18) years old; (b) you have the power and authority to enter into and perform the obligations under this Agreement; (c) if you are an individual acting on behalf of an entity, you are duly authorized to agree to the terms and conditions expressed in this Agreement and to request that Company perform each Online Offering you request and that no further consent or approval is required for such actions; (d) you shall comply with all terms and conditions of this Agreement; and (e) you have provided complete and accurate Data to Company. 3. Acceptable Use Policy You are solely responsible for any and all acts and omissions that occur under your username/license number and password, and you agree not to engage in unacceptable use of the Service, which includes, without limitation, use of the Service to: (a) submit or attempt to submit incorrect Data to any state agency or other entity; (b) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Service or any other computer network; (c) disseminate or transmit any software, document, message or other material which contains malicious software ( malware ), including but not limited to adware, bots, ransomware, rootkit, spyware, a computer virus, worm, trojan horse, and timebomb, or other device which may erase, scramble, lock or disable computer software or equipment or may prevent users from using a website or any other item of hardware or software ( Disabling Device ); or (d) engage in any other activity deemed by Company to be in conflict with the spirit or intent of this Agreement. 4. Limitations (a) Security. (i) Account Access. To allow your access to, and use of, the Service, you are assigned a username/license number and password by the applicable state agency or other entity. The assignment of your username/license number and password creates your account with the Company (the, Account ). You are able to access your Account on the Website by entering that username/license number and password. You agree to bear all responsibility for the confidentiality of your password. Company uses firewalls that are designed to protect your Account from unauthorized access. Nonetheless, you are solely responsible for any access of your Account by any person or entity, including the payment of any Fees incurred on the Account, regardless of whether such access was authorized by you. (ii) Transmission of Account Information. Company uses a cryptographic (digital certificate) key to secure Data and payment information (e.g., credit card number, bank account number, etc.) sent between your browser and Company s server. Whenever you use the Service, Company s server responds to your transmission by sending this key that is authenticated by your browser. This key encrypts the Data and payment information sent by you, and Company decrypts the Data and payment information when Company receives it. (b) Privacy Policy. Company s privacy policy that applies to your use of the Private Pages is available on the Website at and is by this reference made an integral part of this Agreement.

4 (c) Accuracy of Data. You understand and agree that Company does not examine your Data for accuracy, completeness, validity or truthfulness and that you are solely responsible for ensuring such accuracy, completeness, validity and truthfulness. (d) Accuracy of Content. Some state agencies and other entities provide information to Company concerning your Registrations and Renewals, while other state agencies and other entities access the Website to maintain information concerning your Registrations and Renewals. Company does not alter this information, and thus, does not guarantee the completeness or accuracy of this information. (e) Timeliness of Online Offerings. As used in this Agreement, the term Business Day means Monday through Friday, excluding federal holidays; Cutoff Time means 8:00 p.m., United States Eastern Time, on any Business Day and is the time by which you must provide Data to Company and remit good funds sufficient to cover the applicable Fees to have those Fees considered paid on that particular Business Day. In order for Company to process the Online Offerings you request in a timely manner, you must provide Data to Company and remit to Company good funds sufficient to cover the applicable Fees no later than the Cutoff Time one (1) Business Day prior to the applicable government deadline (herein, the Company Deadline ). You will be charged a late fee if any necessary Data is not provided to Company or if good funds sufficient to cover the applicable Fees are not remitted to Company by the Company Deadline. 5. Termination This Agreement is effective upon your acceptance as set forth herein and shall continue in full force until terminated. You may terminate this Agreement at any time and for any reason; however, you may not terminate this Agreement as to any Data you have already provided to the Company or as to any Fees you have already remitted to Company. Company reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Service; (b) suspend your access to or use of all or any portion of the Service; and (c) terminate this Agreement. 6. Disclaimer of Warranties THE SERVICE IS PROVIDED ON AN AS IS BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK. COMPANY DOES NOT WARRANT THAT THE WEBSITE OPERATION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE WEBSITE IS FREE OF DISABLING DEVICES, NOR DOES COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE. COMPANY MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY IMPLIED AND/OR STATUTORY WARRANTIES ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, IN RELATION TO THE SERVICE. YOU HEREBY WAIVE ALL OTHER RIGHTS, OBLIGATIONS AND WARRANTIES AND ASSUME ALL RISKS AND LIABILITIES IN RESPECT THEREOF.

5 7. Limitation of Liability UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OF OR DAMAGE TO REVENUES, PROFITS OR GOODWILL OR OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER ARISING UNDER CONTRACT OR TORT, (INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR INFORMATION, LOST PROFITS, BUSINESS INTERRUPTION, ERRORS, DEFECTS (BOTH PATENT AND LATENT), MISTAKES, OMISSIONS, DELETION OF FILES, DISABLING DEVICES, DELAYS IN OPERATION OR TRANSMISSION, NONDELIVERY OF THE DATA FOR THE ONLINE OFFERINGS YOU REQUEST OR NONDELIVERY OF ANY APPLICABLE FEE DUE TO YOUR BREACH OF THIS AGREEMENT, ANY OTHER FAILURE OF PERFORMANCE, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER RESULTING FROM BREACH OF CONTRACT OR BREACH OF WARRANTY OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICE AND TERMINATE THIS AGREEMENT. 8. Indemnification You agree to indemnify, hold harmless and defend Company, its shareholders, directors, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable attorney s fees and costs, asserted by any person or entity, arising out of or relating to: (a) this Agreement; (b) your breach of any of your Representations or Warranties; or (c) your access to or use of any part of the Service, including any Data you provide to Company. 9. Miscellaneous (a) Protection of Service. The Service is proprietary to Company and is protected by intellectual property laws and international intellectual property treaties. (b) Third Party Content. The Website may contain content supplied by third parties. Any opinions, advice, statements, services, offers, or other promises, representations or warranties contained in such third party content are those of the respective author(s) or distributor(s) and not of Company. (c) Trademarks. KELLYSOLUTIONS, ERENEWALS, KSAMS and the Kelly Registration logos are trademarks or service marks of Company. Other product and company names found on the Website may be the trademarks of third parties. (d) Law and Venue. Company operates and controls the Website from its offices located in the State of Georgia in the United States of America. If you choose to access the Website outside of the State of Georgia, you are responsible for compliance with all applicable laws. This Agreement shall be governed by the laws of the State of Georgia and the United States of America without reference to conflicts of laws. The sole jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal court in the Middle District of Georgia or a state or superior court located in Bibb County, Georgia. You hereby waive any

6 objection to personal jurisdiction and venue in any proceeding before such courts and consent to personal jurisdiction and venue in such courts. (e) Conflicting Terms. The terms and conditions of any purchase order or other ordering document issued by you in connection with this Agreement which are in addition to or inconsistent with the terms and conditions of this Agreement shall not be binding on Company and shall not be deemed to modify this Agreement. (f) Amendment. Company shall have the right, at any time and without notice, to add to or modify the terms of this Agreement (including the Privacy Policy discussed in Section 4(b)), simply by posting such amended terms on the Website. Your access to or use of the Service after the date such amended terms are posted or otherwise communicated to you shall be deemed to constitute acceptance of such amended terms. (g) Binding on Successors and Assigns. This Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. (h) Waiver and Severability. No failure, delay in exercising or enforcing any right or remedy hereunder by Company shall constitute a waiver of any other right or remedy, or future exercise thereof. If any provision of this Agreement is determined to be invalid under any applicable law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY OR LIMITED WARRANTY IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. (i) Survival. The respective rights and obligations of the parties under Sections 2, 3, 4, 6, 7, 8 and 9 shall survive any termination of this Agreement. Revised February 2014 I:\TX.49\15000\ D01 Terms and Conditions (Final).docx