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Nelnet Payment Services Terms of Service
By signing up for or using any of the Services of Nelnet Payment Services, LLC or its affiliates (“Nelnet Payment Services”) you are agreeing to be bound by the following terms and conditions as they relate to your use of the Nelnet Payment Services Services (“Services”). The services offered by Nelnet Payment Services under this agreement include various products and services to help you sell goods and services to buyers, whether online or in person, or both. Any such products and services offered by Nelnet Payment Services are referred to in these Terms of Services as the “Services”. Any new features or tools which are added to the current Services shall be also subject to these Terms of Service. You can review the current version of the Terms of Service at any time at www.nelnetpaymentservices.com. Nelnet Payment Services reserves the right to update and change the Terms of Service by posting updates and changes to the Nelnet Payment Services website. Any updates or changes will be effective upon posting. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you.
The Nelnet Payment Services Services are provided to you by Nelnet Payment Services. For the purposes of these Terms of Service, the words “we,” “our” and “us” refer to Nelnet Payment Services and the Terms of Service are referred to as (“Agreement”).
- Fees. You shall pay Nelnet Payment Services the fees for the Nelnet Payment Services Services as set forth on the Merchant Application or any subsequent addendums or amendments. Fees may be amended on thirty (30) days written notice to you.
- Term; Termination. The Nelnet Payment Services Services shall commence as of the effective date of this Agreement and shall remain in effect until terminated by either party as provided herein. Either party may terminate these Services upon giving the other party at least thirty (30) days prior written notice. We may suspend or terminate your access to Nelnet Payment Services Services without prior notice, with or without cause. Regardless of the reason for termination, you shall be responsible for the payment of all fees due up to and including the effective date of termination.
- License Grant.
- License. Subject to the this Agreement, Nelnet Payment Services grants to you a royalty free, non-exclusive, nontransferable limited license to use the Nelnet Payment Services Services, during the term of this Agreement for the sole and limited purpose of submitting payment transactions to us for processing, and otherwise using our Nelnet Payment Services Services as set forth herein or other applicable documentation (“Documentation”).
- Documentation License. Subject to this Agreement, Nelnet Payment Services grants to you, and you hereby accept, a royalty free, non-exclusive, nontransferable limited license, without right of sublicense, to use the Documentation during the term of this Agreement for the sole and limited purpose of supporting your use of Nelnet Payment Services Services, which may include the use of gateways, Application Programming Interfaces (APIs) or software. You shall strictly follow all Documentation made available to you, as it may be amended from time to time by us, in our discretion.
- Use Restrictions. You shall not, and shall not cause or permit any third party to: (i) use the Software in any way, other than in accordance with this Agreement, the Documentation or as otherwise instructed by us in writing; (ii) use the Software or Documentation, either directly or indirectly, to develop any product or service that competes with the products and services provided; (iii) disassemble, decompile, decrypt, extract, reverse engineer or modify the Software, or otherwise apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Software or any algorithm, process, procedure or other information contained in the Software, except as otherwise specifically authorized in accordance with this Agreement; (iv) provide the Software or Documentation to any third party, other than to your authorized employees and contractors who are subject to a written confidentiality agreement, the terms of which are no less restrictive than the confidentiality provisions of this Agreement; (v) make any copies of the Software or Documentation, except as is incidental to the purposes of these Term of Service, or for archival purposes (any copies made hereunder shall contain all appropriate proprietary notices); (vi) rent, lease, assign, sublicense, transfer, distribute, allow access to, or timeshare the Software or Documentation; (vii) circumvent or attempt to circumvent any applicable security measures of the Software; (ix) attempt to access or actually access portions of Nelnet Payment Services Services not authorized for your use; or (x) use the Nelnet Payment Services Services or documentation for any unlawful purpose.
- Updates. From time to time we may, at our discretion, release updates to our Services (“Updates”). In the event we notify you of any such update, you shall integrate and install such Update into your systems within thirty (30) days of your receipt of such notice, or sooner, as may be required to maintain compliance with Card Organization Rules and/or applicable law. You acknowledge that failure to install Updates in a timely fashion may impair the functionality of the Platform or any of our Services provided hereunder. We will have no liability for your failure to properly install the most current version of the Nelnet Payment Services Services or any Update, and we will have no obligation to provide support or services for any outdated versions.
- Licensors. The licenses granted hereunder may be subject to other licenses currently held by us. Should any license held by us to certain technology or software be terminated or suspended, the corresponding license(s) granted to you hereunder may also be terminated or suspended in our sole and absolute discretion. You acknowledge and agree to such potential termination or suspension and hereby waive any and all damages, whether actual, incidental or consequential resulting therefrom.
- Export Compliance. You agree not to export or re-export the Nelnet Payment Services Services or any underlying information or technology except in full compliance with all applicable laws and regulations. In particular, but without limitation, none of the Nelnet Payment Services Services or underlying information or technology may be downloaded or otherwise exported or re-exported (i) to any country to which the United States has embargoed goods (or any national or resident thereof); (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Orders; or (iii) in any manner not in full compliance with the requirements of the United States Bureau of Industry and Security and all applicable Export Administration Regulations. If you have rightfully obtained the Nelnet Payment Services Services outside of the United States, you agree not to re-export the Nelnet Payment Services Services except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which you obtained the Nelnet Payment Services Services. You warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
- Return/Destruction. Upon termination or expiration of the Nelnet Payment Services Services, all licenses granted hereunder shall immediately terminate, and within five (5) days thereof, you shall either return to us or destroy the Nelnet Payment Services Services and the Documentation, and shall so certify to us in writing.
- No other Licenses. Except as expressly provided above, no license for any patents, copyrights, trademarks, trade secrets or any other intellectual property rights, express or implied, are granted hereunder.
- Use of Transaction Data. As permitted by applicable law and regulations, we reserve the right to copy and distribute to any third party any information (including Transaction Data) associated with you or your customer’s use of the Nelnet Payment Services Services or your activities on Nelnet Payment Services systems, in any format or means of presentation we deem appropriate.
- Platform Matters.
- Integration with Your Systems. While we provide Nelnet Payment Services Services to you, you acknowledge that the Nelnet Payment Services Services itself is insufficient to allow your systems to function with the Services, which may include gateways, APIs and software. Programming, development and maintenance of your systems and their functionality are your sole responsibility. You have the sole responsibility to select and employ any competent programming agent(s) to accomplish the programming required to make your systems function correctly with the Platform and the payment services contemplated hereunder (“Integration”). You shall be responsible for all technical support for your systems and Integration related issues. You agree that you will use commercially reasonable efforts to complete the Integration as soon as possible. You will be responsible for all of your own development and implementation costs associated with such Integration. You acknowledge that unless and until you complete the Integration, no services need to be provided by us to you except as otherwise specifically provided in Section 1.4.2 below. In addition, you acknowledge and agree that, even if you have completed Integration, if you have not entered into a valid merchant processing agreement with an authorized bank card processor, you cannot receive payment processing services through Nelnet Payment Services systems.
- Set-Up Assistance Services. Subject to Section 1.4.1 above, upon your request to us, and upon payment of any applicable fees, we will provide you with set-up services to assist with the Integration.
- Shut Downs. We reserve the right, from time to time, without prior notice, to shut down and restart the Platform for maintenance and/or software upgrades for reasonable time periods of one minute or more.
- Orders by Customers. You are solely responsible for accepting, processing, and filling any orders for purchases by your Customers, and for handling any inquiries arising therefrom. You shall use the highest standards in the industry in responding to complaints by Customers. We are not responsible or liable for any unauthorized access to your data or your systems by any means or device.
- Security of Information. We will use commercially reasonable efforts to maintain the security of the Nelnet Payment Services Services and the Platform. We comply with requirements of the Payment Card Industry Data Security Standard (PCI DSS) and are responsible for the security of cardholder data we possess, store, process or transmit on your behalf. You will use commercially reasonable efforts to maintain the security of your systems. Such steps by you will be taken at your sole cost and expense, and shall include, without limitation: (i) creating firewalls to protect against unauthorized access to your systems by your employees, contractors, customers, or by any other person; and (ii) implementing reasonable protective techniques suggested by us. You further agree that you will be bound by and comply with all of our and all Card Organization security rules and regulations as they now exist or as each may be amended or supplemented from time to time. Notwithstanding the foregoing, the parties recognize that there is no guarantee or absolute security of information that is communicated over the internet.
- Indemnification. You shall indemnify, defend, and hold us, our subsidiaries and affiliates and our and their officers, directors, employees, shareholders, agents and attorneys from any all costs and expenses (including attorneys’ fees) claim arising from (i) the conduct of your business, (ii) any transactions submitted through Nelnet Payment Services Services hereunder for payment processing, (iii) any false or inaccurate representation made by you or the negligence, fraud, dishonesty or willful behavior of any of your employees or agents, (iv) or from your failure to strictly comply, in whole or in part, with any: (a) terms and conditions pursuant to this Agreement and any addenda hereto or Documentation; or (b) applicable law, regulations or Card Organization Rules ((i)-(iv) above shall be collectively referred to as, “Claims”). Upon written notice from us to you, you shall immediately undertake the defense of such Claim by representatives of your own choosing, subject to our reasonable approval.
- Limitation of Liability.
- Nelnet Payment Services is not liable for the merit and legitimacy of the orders forwarded by you. All liability for validity of orders remains with you. We are not responsible for any data entry errors, Customer misrepresentations, or reporting errors resulting from your actions. We shall not be liable to you or your Customer for the accuracy of the information provided by Nelnet Payment Services Services.
- In no event shall we be liable to you, or to any other person or entity, or otherwise, for any punitive, exemplary, special, incidental or consequential damages, including, without limitation, any loss or injury to earnings, profits or goodwill.
- Notwithstanding any provision in this Agreement to the contrary, in no event shall our liability for all Claims arising under, or related to, this Agreement exceed, in the aggregate (inclusive of any and all Claims made by you against us, whether related or unrelated), the lesser of: (i) the total amount of fees paid by you for the our Services during the 6-month period immediately preceding the date the event giving rise to such Claim(s) occurred.
- Notwithstanding provisions set forth herein, we will not be liable for any Claims under this Agreement arising directly or indirectly from or otherwise concerning: (a) any termination, suspension, delay or disruption of service (including billing for a service) by the internet, any common carrier or any third party service provider; (b) any failure, disruption or malfunction of the Nelnet Payment Services Services, the services provided hereunder or the internet, or any communications network, facility or equipment beyond our reasonable control, whether or not attributable to one or more common carriers or third party service providers; (c) any failed attempts by you or your customers to access any systems or to complete processing transactions; or (d) any failure to transmit, obtain or collect data from customers or for human, machine or software errors or faulty or your or your Customer’s erroneous input.
- DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE AND AGREE THAT THE USE OF THE NELNET PAYMENT SERVICES SERVICES, GATEWAYS, APIs, PLATFORMS AND DOCUMENTATION ARE AT YOUR SOLE RISK WE MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AND NO IMPLIED AT LAW WARRANTY SHALL ARISE FROM THIS AGREEMENT, NELNET PAYMENT SERVICES SERVICES, DOCUMENTATION, OUR PROCEDURES, OTHER SERVICES PROVIDED OR PERFORMED BY US HEREUNDER, INCLUDING, WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) ANY WARRANTIES OF NONINTERFERENCE OR NON-INFRINGEMENT; OR (C) ANY WARRANTIES THAT ANY PRODUCT OR SERVICE PROVIDED HEREUNDER (INCLUDING BUT NOT LIMITED TO THE SOFTWARE) WILL (1) MEET YOUR REQUIREMENTS; (2) OPERATE ACCORDING TO YOUR EXPECTATIONS; (3) PROVIDE ACCURATE DATA; OR (4) OPERATE UNINTERRUPTED OR ERROR FREE. ANY AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED BY US AND WAIVED BY YOU. WE DO NOT WARRANT THAT ANY ERRORS WILL BE CORRECTED. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, THE NELNET PAYMENT SERVICES SERVICES, (INCLUDING WITHOUT LIMITATION NELNET PAYMENT SERVICES SYSTEMS AND SOFTWARE), DOCUMENTATION AND OTHER SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS-IS, WITH ALL FAULTS” BASIS. THIS DISCLAIMER OF WARRANTIES CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. All decisions to reject any processing transaction or payment for your products or services are solely your responsibility.
- Notices. You agree to notify us of any change in your name, type of business, or any other information required on your Merchant Processing Application at least thirty (30) business days prior to the effective date of change. Any notice or other communication required or permitted to be given hereunder shall be in writing, addressed or transmitted to the party to be notified at such party’s address or number at such party’s last known address or number, and shall be: (i) if sent by us, hand delivered, overnight courier or certified, registered, regular mail or e-mail; or (ii) if sent by you, certified or registered mail, postage prepaid return receipt requested to ATTN: Legal Counsel, 121 South 13th Street, Suite 200, Lincoln, NE 68508. Any notice delivered hereunder shall be deemed effective, as applicable, upon delivery, if hand delivered or sent by overnight courier; upon receipt as evidenced by the date of transmission indicated on the transmitted material, if by e-mail; on the date of delivery indicated on the return receipt, if mailed by certified or registered mail; or ten (10) days after mailing, if by regular mail (or as otherwise required by applicable law). The Parties’ addresses may be changed by written notice to the other party as provided herein.
- Subcontractors. Nelnet Payment Services may subcontract all or part of the Nelnet Payment Services Services using a variety of providers globally, but, notwithstanding any such subcontract, Nelnet Payment Services shall remain fully responsible for performance of the Services, including ensuring the compliance of subcontractors with the terms of this Agreement applicable to such subcontractors.
- Survival. Upon termination or expiration of this Agreement, a party’s obligations shall cease except for those remaining or required to be performed following such termination. For the avoidance of doubt, the parties agree that those provisions of this Agreement that logically should survive its termination or expiration in order to accomplish its fundamental purposes will do so. All representations, warranties, indemnities and covenants made herein shall survive the termination of this Agreement and shall remain enforceable after such termination.
- This Agreement is executed and delivered in the State of Nebraska without regard to conflicts of laws principles, and the State and Federal courts located in Lincoln, Nebraska will have sole jurisdiction and venue over all controversies arising under this Agreement. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING RELATING TO THIS AGREEMENT.