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eLayaway, Inc. Merchant Terms of Service



MERCHANT TERMS OF SERVICE (“MTOS”)


THE MERCHANT, ITS AFFILIATES, EMPLOYEES, VENDORS, CONSULTANTS (COLLECTIVELY HEREINAFTER “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 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 and conditions 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 and conditions 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 site by the Merchant after notice of revisions or additions to these terms shall constitute and be deemed to be the Merchant’s agreement to such revisions or additions.

  1. PAYMENT TERMS.Merchants will be charged a $9.99 monthly service fee unless otherwise noted. This fee will be charged the beginning of every month until the merchant cancels. In additional to the monthly service fee, merchants who complete eLayaway orders in excess of $2000.00 USD will be charged an additional Monthly Service Fee in accordance to the fee structure stated below at the end of the calendar month. 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 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.

    Monthly Processing Fee Structure: *Monthly Processing Fee is charged in addition to the monthly service fee of $9.99.

    eLayaway reserves the right to charge merchants additional fees depending on if custom development work is needed in order to integrate the eLayaway payment option into their website. These fees will be determined through an integration analysis by both the merchant and eLayaway.
  2. CANCELLATION.Merchants who wish to cancel their eLayaway account must notify the eLayaway Merchant Relations team via email or phone. Upon cancellation, merchants must remove the eLayaway payment option from their business website(s) as well as any other instance where eLayaway is mentioned as a viable payment option. The merchants will be responsible for fulfilling any current orders that have already been initiated through eLayaway. MERCHANT UNDERSTANDS AND ACCEPTS THAT NO REFUNDS WILL BE MADE ON THE MONTHLY SUBSCRIPTION PAYMENTS PAID, INCLUDING PAYMENT MADE DURING THE MONTH OF CANCELLATION. In the event that the merchant has elected to pay on an annual basis, merchants will be refunded only the portion of remaining whole months left in their twelve (12) month contract.
  3. LICENSE.eLayaway expects a commitment from the Merchant to treat our eLayaway members fairly. This includes, but is not limited to: not increasing the Merchant’s price points for eLayaway members, shipping products as promised upon full payment 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 members will be able to rate your “merchant performance” after each completed purchase. eLayaway will notify the Merchant if any of the above requirements is considered breach. Upon receipt of a breach notification you will have 30 days to rectify said breach. If the breach is not satisfied within that 30-day time window, eLayaway has the right to terminate these MTOS without any further notification.
  4. PERFORMANCE.eLayaway expects a commitment from the Merchant to treat our eLayaway members fairly. This includes, but is not limited to: not increasing the Merchant’s price points for eLayaway members, shipping products as promised upon full payment 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 members will be able to rate your “merchant performance” after each completed purchase. eLayaway will notify the Merchant if any of the above requirements is considered breach. Upon receipt of a breach notification you will have 30 days to rectify said breach. If the breach is not satisfied within that 30-day time window, eLayaway has the right to terminate these MTOS without any further notification.
  5. FINANCIAL SECURITY. This clause is meant to inform the Merchant of handling practices associated with eLayaway while a consumer’s money is in transit during an eLayaway purchase. Consumer monies collected during the eLayaway purchase process are deposited into an escrow account held at our designated financial institution. Upon transaction initiation, the 1.9% transaction fee is assessed and removed from the escrow account. This fee is considered non-refundable and is detailed as such in the eLayaway Member Terms of Service and is protected by the cancellation policies that eLayaway customers have agreed upon. Upon successful completion of a transaction the escrowed 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 transactions.
  6. INTEGRATION.eLayaway reserves the right to charge a fee for integration into our payment process. Any expenses incurred by the Merchant to effectivelyeLayaway software is exclusively the responsibility of the Merchant.
  7. INTELLECTUAL PROPERTY.The Merchant agrees to not resell, reproduce, retransmit, republish, reverse-engineer or otherwise transfer for any purpose the eLayaway services 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. Merchant acknowledges that eLayaway retains all intellectual property rights related to the eLayaway service and that Merchant specifically does not acquire, by virtue of this service relationship, any intellectual property pursuant to these MTOS.
  8. 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 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 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 the eLayaway’s interests so as to render this section valid and enforceable.
  9. OTHER BUSINESSES.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 them it at the Merchant’s own risk.
  10. 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.DATA SECURITY:This clause is meant to inform the Merchant of handling practices associated with eLayaway members’ personal information. 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 support@elayaway.com.
  11. ASSIGNMENT. The license granted pursuant to these MTOS and the to the Merchant to 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.
  12. WARRANTY EXCLUSION/LIMITATION OF LIABILITY. 4 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.COM 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.COM OR ITS AFFILIATES, OR ANY OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS OR SUPPLIERS 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.COM, INCLUDING, BUT NOT LIMITED TO, GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR ANY OTHER TYPE OF DAMAGES. YOUR USE OF THE SITE IS AT YOUR 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.
  13. LIMITATION OF LIABILITY/INDEMNITY.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 THIS AGREEMENT, THE PERFORMANCE OR BREACH HEREOF, THE SUBJECT MATTER OF THIS AGREEMENT, OR MERCHANT’S USE OF, OR INABILITY TO USE, THE ELAYAWAY SERVICES, ANY INFORMATION OR DATA PRODUCED BY THE ELAYAWAY PROVIDED TO 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. 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).
  14. 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.
  15. AUDIT.eLayaway shall have the right to audit, directly and through its independent auditors, 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 seventy-two (72) hours of written notice of intent to audit by eLayaway. Except as required by law, eLayaway agrees to maintain the confidentiality of all of 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 problems discovered and allow the Merchant forty-eight (48) hours to cure the problem. If the Merchant does not cure the problem, then eLayaway, among other remedies, may terminate these MTOS.
  16. 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.
  17. MERCHANT CHANGES. 5 Merchant shall notify eLayaway immediately of any changes to the information on Merchant's Application for eLayaway services, such changes in information to include changes in their eLayaway Merchant Account admin area. eLayaway reserves the right to terminate Merchant's or its successor’s access to the eLayaway services without further notice upon receipt of any change in Merchant’s status which in eLayaway’s sole discretion would cause Merchant to be unable to comply with its obligations under these eLayaway MTOS.
  18. RELATIONSHIP OF PARTIES. Merchant shall at no time represent that it is the authorized agent or representative of eLayaway.
  19. MISCELLANEOUS. These MTOS and the eCommerce Partnership 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. The Agreement shall be governed by and construed in accordance with the laws of Florida, without regard to its conflicts or choice of laws principles. Merchant agrees that, in any legal action arising from or related to your use of, services provided or orders placed on eLayaway.com or to these MTOS, the United States District Courts for Florida shall have sole and exclusive jurisdiction and venue over such action, or if that court lacks subject matter jurisdiction, the District Court of Leon County, Florida shall have sole and exclusive jurisdiction and venue over such action.