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MERCHANT TERMS OF SERVICE ("MTOS")


THE MERCHANT'S, ITS AFFILIATES, EMPLOYEES, VENDORS, CONSULTANTS (HEREINAFTER COLLECTIVELY REFERRED TO AS "MERCHANT") USE OF ELAYAWAY.COM IS GOVERNED BY THESE TERMS OF SERVICE. BY ANY MEANS, INCLUDING BUT NOT LIMITED TO WEB BROWSERS AND MOBILE DEVICES ACCESSING AND USING ELAYAWAY.COM, THE MERCHANT AGREES THAT ITS ACCESS TO AND SERVICE OF ELAYAWAY.COM IS SUBJECT TO THESE TERMS OF SERVICE.

eLayaway.com (includes all related/affiliated company websites hereinafter collectively referred to as "eLayaway.com") is operated by eLayaway, Inc. and/or its subsidiaries (hereinafter collectively referred to as "eLayaway").

For purposes of this MTOS, the term "Payment System" shall refer to the eLayaway payment software that facilitates a multi-payment transaction between a Merchant and a Member.

Any consumer who registers or uses the eLayaway Payment System will be collectively referred to herein as a "Member".

eLayaway.com is operated by eLayaway®, Inc. ("eLayaway")

These Terms of Service May Change

eLayaway will have right at any time and without prior notice, at its sole discretion, to revise these Terms or to impose new Terms of Service with respect to access to or use of eLayaway.com. Such revisions and additions will be effective immediately upon notice, which may be given by any means, including but not limited to posting the revised or additional Terms of Service on eLayaway.com. The Merchant is responsible for reviewing eLayaway.com periodically for any modification to these Merchant Terms of Service ("MTOS").

Any access or use of eLayaway.com by the Merchant after notice of revisions or additions to these Terms of Service shall constitute and be deemed to be the Merchant's agreement to such revisions or additions.

  1. PAYMENT TERMS. Merchants will be charged a $14.95 monthly service fee or 1% transaction fee (whichever is greater) based on the month’s prior completed orders, unless otherwise noted. This fee will be charged at the beginning of every month until cancellation by the Merchant. The applicable fee is non-refundable in the event of cancellation. A completed order is defined as an order in which all payments have been successfully collected by eLayaway from the consumer minus any eLayaway fees charged to the consumer. All Merchant fees will be charged to the Merchant's registered bank account and funds will be debited from this account via Automated Clearing House ("ACH") by eLayaway.
  2. ACH AUTHORIZATION. The Merchant hereby authorizes eLayaway and its third-party processor to initiate fund withdrawals electronically from its financial institution. This authorization is to remain in effect until eLayaway has received expressed notification from the Merchant of its termination. Notice must be received in time and in such a manner as to afford eLayaway reasonable opportunity to act on it.
  3. CANCELLATION. A Merchant who desires to cancel their eLayaway account must notify the eLayaway Merchant Relations Team via email or telephone. Upon cancellation, the Merchant must remove the eLayaway payment option from their business website(s) as well as any other instances where eLayaway is mentioned as a viable payment option or any other reference to eLayaway within five (5) calendar days. The Merchant will be responsible for fulfilling any current orders that have already been initiated through eLayaway. THE MERCHANT UNDERSTANDS AND ACCEPTS THAT NO REFUNDS WILL BE MADE ON THE MONTHLY SUBSCRIPTION PAYMENTS PAID, INCLUDING PAYMENT MADE DURING THE MONTH OF CANCELLATION.
  4. LICENSE. The Merchant is hereby given a non-exclusive license permitting it to integrate and market the eLayaway Payment System.
  5. PERFORMANCE. eLayaway requires a commitment from the Merchant to treat our eLayaway members fairly and as is standard in their respective industry. This includes, but is not limited to: not increasing the Merchant's price points for eLayaway members, deliver products and/or services as promised upon notification of layaway completion from eLayaway and only offering products and services through eLayaway that the Merchant can guarantee availability of purchased merchandise or specific performance of purchased services. eLayaway will notify the Merchant if any of the above requirements is considered breached.
  6. REFUSAL OF SERVICE. eLayaway will determine whether or not to accept an applicant as a Merchant and whether or not to provide to applicant the eLayaway Service. eLayaway may refuse to provide to the applicant its Service for any reason. If Merchant fails to comply with any of the terms and conditions set forth in this MTOS, eLayaway may at any time, terminate the Merchant's rights under this Agreement at its sole discretion and without prior notice.
  7. PROHIBITED ACTIVITIES AND RESTRICTED ITEMS. The following activities have been declared unauthorized and/or restricted by eLayaway: Any activities that involve or relate to the sale of: (a) narcotics, steroids, prescription drugs and devices, controlled substances, alcohol, tobacco or other products that present a risk to consumer safety; (b) drug paraphernalia; © counterfeit goods and unauthorized replicas or copies including, but not limited, to software programs, pirated copies of music, movies, television programs, photographs, video games or other forms of unauthorized media; (d) items that encourage, promote, facilitate or instruct others to engage in illegal activity; (e) items that promote hate, violence, racial intolerance, illegal activities with minors or the financial exploitation of a crime; (f) items that are considered obscene or otherwise inappropriate; (g) items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction; (h) certain sexually oriented materials or services; (i) ammunition, firearms, or certain firearm parts or accessories; (j) certain weapons or knives regulated under applicable law; (k) any services related to the sale of medical procedures or elective surgeries; and (l) any items or activities that violate any law, statute, ordinance, or regulation. eLayaway, at its sole discretion, may amend this Section at any time.
  8. FINANCIAL SECURITY. This clause is meant to inform the Merchant of handling practices associated with eLayaway while a Member's money is in transit during an eLayaway purchase. Member monies collected during the eLayaway purchase process are deposited into a holding account at our designated Financial Institution. Upon transaction initiation, the eLayaway transaction fee is assessed and removed from the holding account. This fee is considered non-refundable and is detailed as such in the eLayaway Member Terms and Conditions and is protected by the cancellation policies that eLayaway Members have agreed upon. Upon successful completion of a transaction the held funds in their entirety will be electronically transferred to the Merchant bank account specified and registered by the Merchant and verified by eLayaway. At all times the Merchant will have access to reports generated by the eLayaway system to allow viewing of current purchases and total amounts of monies collected associated with said transactions.
  9. INTEGRATION. eLayaway reserves the right to charge additional fees if custom development work is needed in order to integrate the eLayaway payment option into the merchant’s website. These fees will be determined through a good faith integration analysis by both the Merchant and eLayaway. Payment for integration service is due prior to any integration work deemed necessary by eLayaway or its authorized agents. Any expenses incurred by the Merchant to effectively execute the eLayaway software are exclusively the responsibility of the Merchant.
  10. INTELLECTUAL PROPERTY. The Merchant agrees to not resale, reproduce, retransmit, republish, reverse-engineer or in any other way or otherwise transfer for any purpose the eLayaway Payment System other than as permitted by these MTOS. The Merchant acknowledges and accepts that eLayaway shall retain all rights, title and interests in and to each eLayaway Service and the eLayaway Service Database as well as all physical and logical copies thereof. The Merchant acknowledges that eLayaway retains all intellectual property rights related to the eLayaway Payment System and that Merchant specifically does not acquire, by virtue of this service relationship, any intellectual property pursuant to these MTOS. The Merchant further acknowledges that eLayaway has registered its applicable copyrights (i.e. names, symbols, etc.) and patents with the United States Patent and Trademark Office ("USPTO").
  11. PROTECTION OF TRADE SECRETS. Trade Secrets include, but are not limited to: all software programs, hardware configurations, resources, methods, algorithms, logical processes and techniques that the Merchant uses under these MTOS for any and all consumer and business profiling, verification, validation and information management, payment processing, computer and web site systems and processes. The Merchant agrees to keep confidential and not use or disclose these Trade Secrets to others during the term of these MTOS and at all times thereafter, except as consented to in writing by eLayaway. If law requires disclosure, the Merchant agrees to notify eLayaway of the subpoenaed request, within ten (10) business days of such request, and to forward any legal documentation to eLayaway promptly. The Merchant will be held accountable for the premature release of said Trade Secrets as it is not by the Merchant's discretion that they be released, but by eLayaway's solely. The Merchant recognizes, acknowledges and agrees that the Trade Secrets are sufficiently proprietary and that eLayaway derives economic value from them not being known to other parties who can obtain economic value from their disclosure or use. Therefore, the Merchant shall have a continuing duty to eLayaway which shall survive termination of these MTOS, for any reason to: (1) maintain the secrecy of the Trade Secrets and to use such Trade Secrets only within the terms of these MTOS; (2) retain and keep any Trade Secrets that comes into the Merchant's knowledge, possession or control, regardless of whether by proper or improper means, as strictly confidential and shall not disclose such Trade Secrets to any third party; (3) return all Trade Secrets to eLayaway upon termination of these MTOS; and (4) use at no time the Trade Secrets to directly or indirectly reverse engineer, de-compile or disassemble such Trade Secrets for construction of a similar business, product or service as conducted by eLayaway or the Merchant's own uses, as defined and regulated by the USPTO. The provisions of this section shall survive the expiration or sooner termination of the term of these MTOS, and shall be deemed independent and separately enforceable covenants that are enforceable independent of (i) the other covenants, conditions, terms, and other provisions of these MTOS, and (ii) any cause of action or rights or remedies either party may have under these MTOS or otherwise, none of which shall be deemed defenses to the enforcement of this section of the MTOS. In the event of a breach or threatened breach by the Merchant of any provision of these MTOS, eLayaway shall have the cumulative right to seek monetary damages for any breach, and equitable relief, including specific performance or injunction against the Merchant or against the Merchant's partners, agents, representatives, servants, employers, employees, family members and/or any and all persons acting directly or indirectly by or with the Merchant, to prevent or restrain any such breach. If a court of competent jurisdiction determines that the terms of this section of the MTOS are overly broad or are otherwise not reasonably necessary to protect the trade secrets of eLayaway, the parties intend that this section shall not thereby be declared null or void or be otherwise determined to be unenforceable, but that such court shall modify and grant the relief reasonably necessary to protect eLayaway's interests so as to render this section valid and enforceable.
  12. OTHER BUSINESSES. Third parties other than eLayaway operate business and sell products or services on eLayaway.com. In addition, eLayaway.com provides links to the websites of affiliated companies and certain other businesses. eLayaway is not responsible for examining or evaluating, and eLayaway does not warrant the offerings of any of these businesses or individuals or the content of their websites. eLayaway does not assume any responsibility or liability for the actions, products, and content of all these and any other third parties. The Merchant should carefully review their privacy statements and other conditions of use. Links to other websites are provided for convenience only, and the Merchant's access to them is at the Merchant's own risk, and eLayaway shall not incur any liability to Merchant as a result of Merchant accessing such websites.
  13. DATA PROTECTION. eLayaway recognizes the importance of protecting the information it collects in the delivery of services and products pursuant to these MTOS, and will take all reasonable steps to maintain the security, integrity and privacy of this information. eLayaway will ensure that any information it collects will be adequate, relevant and not excessive for purposes of these MTOS. Except where necessary in connection with services provided by appropriate intermediaries, who will be required to comply with the confidentiality provisions of this policy, eLayaway will not disclose any personal or corporate information identifying the Merchant or its customers to any third party, unless required by law or to enforce the terms of these MTOS. eLayaway will only disclose to third parties navigational and transactional information in the form of anonymous, aggregate usage statistics (including "hits") and demographics in forms that do not reveal the Merchant's identity or confidential information, except as required by law. Links may be provided from the services and the products to other websites. In using such links, the Merchant should be aware that each website will vary in terms of its privacy and data protection policies, and eLayaway does not take responsibility for the privacy policies of, and thereby the usage of, personal information collected by others. Upon termination of this agreement for any reason, the Merchant shall be denied access to eLayaway services. All transaction activity including historical database records may be eliminated (compressed, discarded) by methods and means at the sole discretion of eLayaway.
  14. DATA SECURITY. This clause is meant to inform the Merchant of handling practices associated with eLayaway Member's personal information. The Merchant will not disclose the data to any third party and will otherwise protect it in the same manner as it treats its own confidential information, but in no event with less than best efforts, including limiting internal access to those personnel who need access to it to perform their jobs and requiring vendors who need access to perform services for the Merchant to adhere to eLayaway's policies, as such exists from time to time. The Merchant acknowledges that, in accordance with eLayaway's policies, the Merchant will not provide identifying information regarding any consumer or business that has specifically requested that its information not be shared with third parties for marketing purposes. Please note that eLayaway's Privacy and Data Protection Policy is reviewed periodically. Any comments or questions concerning this privacy policy should be sent to compliance@eLayaway.com. You may find our Privacy and Data Protection Policy online at www.eLayaway.com/Privacy_Policy
  15. ASSIGNMENT. The license granted pursuant to these MTOS and to the Merchant may not be assigned by the Merchant, in whole or in part, without the prior written consent of eLayaway, which may be withheld at the sole discretion of eLayaway.
  16. WARRANTY EXCLUSION. All services performed by eLayaway in accordance with these MTOS will be performed in a professional manner, using qualified personnel; provided, however, eLayaway does not guarantee or warrant the correctness or completeness of the eLayaway Services or the eLayaway Database. ELAYAWAY IS OPERATED ON AN "AS IS," "AS AVAILABLE" BASIS. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES SET FORTH HEREIN, ELAYAWAY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING MERCHANTABILITY, SUITABILITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. ELAYAWAY DOES NOT REPRESENT OR WARRANT THAT ITS SERVICES WILL BE UNINTERRUPTED, OR ERROR-FREE. ELAYAWAY EXPRESSLY DISCLAIMS ALL WARRANTIES. UNDER NO CIRCUMSTANCES, SHALL ELAYAWAY OR ITS AFFILIATES, OR ANY OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS, SUPPLIERS, LICENSORS, LICENSEES OR INFORMATION PROVIDERS BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE ELAYAWAY, INCLUDING, BUT NOT LIMITED TO, GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR ANY OTHER TYPE OF DAMAGES. THE MERCHANT'S USE OF ELAYAWAY IS AT THE MERCHANT'S SOLE RISK. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO THE MERCHANT OR ITS USERS.
  17. LIMITATION OF LIABILITY.IN NO EVENT WILL ANY PARTY, INCLUDING BUT NOT LIMITED TO ELAYAWAY OR ANY DATA PROVIDER BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES), LOST OR CORRUPTED DATA OR OTHER LIABILITY ARISING OUT OF OR IN ANY MANNER IN CONNECTION WITH THESE MTOS , THE PERFORMANCE OR BREACH HEREOF, THE SUBJECT MATTER OF THIS AGREEMENT, OR THE MERCHANT'S USE OF, OR INABILITY TO USE, THE ELAYAWAY SERVICES, ANY INFORMATION OR DATA PRODUCED BY ELAYAWAY PROVIDED TO THE MERCHANT HEREUNDER, REGARDLESS OF THE FORM OF ACTION (INCLUDING STRICT LIABILITY OR NEGLIGENCE), WHETHER OR NOT THEY HAVE BEEN ADVISED, OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY, OF SUCH DAMAGES. THE MERCHANT AGREES THAT ELAYAWAY'S AGGREGATE LIABILITY FOR ANY AND ALL LOSSES OR INJURIES ARISING OUT OF ANY ACT OR OMISSION OF ELAYAWAY IN CONNECTION WITH ANYTHING TO BE DONE OR FURNISHED UNDER THIS AGREEMENT OVER ANY NUMBER OF TRANSACTIONS SHALL NEVER EXCEED ONE HUNDRED DOLLARS ($100).
  18. INDEMNIFICATION. The Merchant agrees to indemnify, defend and hold harmless eLayaway, its affiliates, successors and assigns, and their respective agents, directors, employees, information providers, licensors, licensees and suppliers, for, from and against any and all liability and costs (including attorneys' fees and costs) incurred by any of these parties in connection with any claim arising out of any willful or intentional breach by the Merchant of these MTOS, or the Merchant's violation of applicable laws, rules or regulations. In the event that the Merchant is the subject of claims for which the Merchant properly seeks damages from eLayaway under these MTOS, eLayaway reserves the right, at its expense, to assume the exclusive defense and control of any such claim, and Merchant will not in any event settle any such claim without eLayaway’s written consent. In the event that eLayaway is subject to any claim for which eLayaway has the right to be indemnified by the Merchant, eLayaway will have the right at the expense of the Merchant to assume the exclusive defense and control of any such claim, and the Merchant will not in any event settle any such claim without the written consent of eLayaway.
  19. SURVIVAL OF MTOS. Provisions hereof related to release of claims, indemnification, use of information and data, payment to eLayaway for eLayaway Services, and disclaimer of warranties shall survive any termination of these MTOS by eLayaway. Any termination of these MTOS by eLayaway shall not terminate any claim for damages by eLayaway. In the event any of the terms or provisions of these MTOS shall be held to be unenforceable, the remaining terms and provisions shall be unimpaired and the unenforceable term or provision shall be replaced by such enforceable term or provision as comes closest to the intention underlying the unenforceable term or provision.
  20. AUDIT. eLayaway shall have the right to audit, directly and through its independent auditors, the Merchant's use of the eLayaway Services to ensure compliance with the license granted herein. Such audits may be conducted during normal business hours upon five (5) business days of written notice of intent to audit by eLayaway. Except as required by law, eLayaway agrees to maintain the confidentiality of all of the Merchant's procedures and processes disclosed during the audit. If an audit reveals a violation of the terms of these MTOS, eLayaway may promptly notify the Merchant in writing of any violations/problems discovered and allow the Merchant forty-eight (48) hours to cure the violations. If the Merchant does not cure the violations, then eLayaway, among other remedies, may terminate these MTOS.
  21. ATTORNEYS FEES. The prevailing party in any action, claim or lawsuit brought pursuant to these MTOS is entitled to payment of all attorney fees and costs expended by such prevailing party in association with such action, claim or lawsuit.
  22. MERCHANT CHANGES. The Merchant shall notify eLayaway immediately of any changes to the information on the Merchant's Application for eLayaway Services, such changes in information to include changes in their eLayaway Merchant Account administration area. eLayaway reserves the right to terminate the Merchant's or its successor's access to the eLayaway Services without further notice upon receipt of any change in the Merchant's status which in eLayaway's sole discretion would cause the Merchant to be unable to comply with its obligations under these MTOS.
  23. RELATIONSHIP OF PARTIES.The Merchant shall at no time represent that it is the authorized agent or representative of eLayaway.
  24. FORCE MAJEURE. eLayaway will not be liable for any failure or delay resulting from fire, explosion, flood, storm, act of God, acts of terrorism, government acts, orders or regulations, hostilities, civil disturbance, strike, labor difficulties, machinery breakdown, Internet or telecommunications failure, or any other similar event beyond the reasonable commercial control of eLayaway.
  25. ARBITRATION. Both the Merchant and eLayaway agree that any dispute, controversy or claim arising out of, or relating to, any interpretation, construction, performance or breach of these MTOS or the eLayaway Service shall be settled by confidential arbitration, in accordance with the American Arbitration Association's ("AAA") Commercial Arbitration Rules (including without limitation the Supplementary Procedures for Consumer-Related Disputes) then in effect. The arbitrator may grant injunctions or other relief in such dispute or controversy. A single arbitrator with knowledge of electronic commerce will conduct the arbitration and the parties will mutually agree upon such arbitrator. In the event that the parties have not agreed on an arbitrator within thirty (30) days of the date of the notice of intention to arbitrate, the arbitrator will be selected by AAA from its list of commercial arbitrators. The arbitrator will conduct a single hearing no longer than one day in duration for the purpose of receiving evidence and will render a decision within fifteen days after the conclusion of the hearing. The decision of the arbitrator will be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any state or federal court. Although the cost of the arbitrator will be borne by eLayaway, all other expenses of arbitration will be paid by the party who incurred them. In addition to, and separate and apart from, the above agreement to arbitrate any dispute, controversy or claim arising out of, or relating to, any interpretation, construction, performance or breach of these MTOS or the eLayaway Service, the Merchant also agrees that they will not participate in any way in any class action in connection with any such dispute, controversy or claim, either as a class representative plaintiff or as a member of a putative class.
  26. GOVERNING LAW. These MTOS and, if applicable, Merchant Service Agreement (collectively, the "Agreement") constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. These MTOS and any Service provided hereunder will be governed by the laws of the State of Florida, without regard to any Florida laws that would direct the choice of another state's laws and, where applicable, to be governed by the federal laws of the United States. Subject to Section 25 (which provides for arbitration of claims between us to the maximum extent possible), the Merchant irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the federal or state courts in the State of Florida for any dispute or litigation arising out of, or relating to, the use or purchase of any Service from eLayaway, and waive any objection to the laying of venue of any such litigation in the Leon County Florida courts and agree not to claim that such litigation brought therein has been brought in an inconvenient forum. In other words, if there is a dispute that results in a lawsuit, the Merchant agrees to resolve it in the Leon County Florida court.
  27. MISCELLANEOUS. These MTOS may not be altered, supplemented, or amended by the Merchant by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for the eLayaway Service which is subject to additional or altered MTOS will be null and void, unless agreed to in writing and signed by the Merchant and eLayaway. The section headings used herein are for convenience of reference only and do not form a part of these MTOS, and no construction or inference will be derived therefrom. If any provision of these MTOS is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and shall not affect the enforceability of any other provision.

Revised January 5th, 2011

eLayaway Merchant Terms & Conditions Revision 1.2