Nexwee Terms & Conditions
The Terms and Conditions described here constitute a legal agreement ("Agreement") among the sole proprietor or business listed as the "Merchant" in the Nexwee.com service registration page, (the "Merchant" on the registration page, sometimes referred to as "you," "your", "user"), Nexwee Cloud Sdn Bhd. ("Nexwee") referred to as "we", "our" or "us").
- The Nexwee Payments Service (the "Service")
- Our Role
The Nexwee service ("Nexwee Payments" or the "Service") is a service that helps you run online store and accept and process credit card, debit card and other types of card payments (collectively "cards") from your customers in exchange for your products and services for internet-based transactions ("Card Not Present Transactions" or "CNP Transactions"). At your election, Nexwee may also provide you with card reader equipment and software (the “POS Equipment”) to enable you to accept in-person, point-of-sale transactions (“Card Present Transactions” or “CP Transactions”) as well as manually entered transactions (“Keyed Transactions”). In addition, we do not assume any liability for the products or services purchased using our Service. You will be required to register for a service account to use the Service (see "Getting a Service Account" below)This account allows you to review card transactions that are in the process of settling from Payment Networks (as defined below) and us to your designated settlement bank account.
- Our Software
Nexwee provide the payment software to enable you to use the Service. We reserve the right to require you to install or update any and all software updates to continue using the Service. The foregoing offering is separate and distinct from the Nexwee e-commerce and other services that are provided by Nexwee Cloud Sdn Bhd. under separate terms and conditions, which are independent of this Agreement (such services being a "Nexwee Account" and such agreement being the "Nexwee Merchant Agreement").
It is your responsibility to obtain your customers’ consent to be billed in compliance with applicable legal requirements and Visa Europe Ltd, Visa U.S.A., Inc., Visa Canada Inc. and Visa International (collectively, “Visa”) and MasterCard International Incorporated (“MasterCard”), Discover, American Express or other applicable card network (collectively, the “Payment Networks”) payment rules.
- Payment Methods
The Nexwee Payments card processing service supports any U.S.-issued card and most non-U.S. issued cards with a Payment Network logo, including credit, debit, pre-paid, or gift cards. Nexwee will only process card transactions that have been authorized by the applicable Payment Network or card issuer. You are solely responsible for verifying the identity of users and of the eligibility of a presented payment card used to purchase your products and services, and Nexwee does not guarantee or assume any liability for transactions authorized and completed which may later be reversed or charged back (See Chargebacks section below). You are solely responsible for all reversed or charged back transactions, regardless of the reason for, or timing of, the reversal or chargeback. Nexwee may add or remove one or more types of cards as a supported payment card any time without prior notice to you.
- Customer Service
Nexwee will provide you with customer service to resolve any issues relating to your Service Account. You and you solely, are responsible for providing service to your customers for any and all issues related to your products and services, including but not limited to issues arising from the processing of customers' cards through the Service.
- Taxes and Reporting
It is your responsibility to determine what, if any, taxes apply to the sale of your goods and services and/or the payments you receive in connection with your use of the Service ("Taxes"). It is solely your responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. You acknowledge that we may make certain reports to tax authorities regarding transactions that we process and merchants to which we provide card payment services.
Nexwee maintain commercially reasonable administrative, technical and physical procedures to protect all the personal information regarding you and your customers that is stored in our servers from unauthorized access and accidental loss or modification. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such personal information for improper purposes. You acknowledge that you provide this personal information regarding you and your customers at your own risk.
- Data Security
You are fully responsible for the security of data on your website or otherwise in your possession. You agree to comply with all applicable state and federal laws and rules in connection with your collection, security and dissemination of any personal, financial, Card, or transaction information (defined as "Data") on your website. You agree that at all times you shall be compliant with the Payment Card Industry Data Security Standards ("PCI-DSS") and the Payment Application Data Security Standards ("PA-DSS"), as applicable. You agree to promptly provide us with documentation evidencing your compliance with PCI DSS and/or PA DSS if requested by us. You also agree that you will use only PCI-compliant service providers in connection with the storage, or transmission of Card Data, defined as a cardholder's account number, expiration date, and CVV2. You must not store CVV2 data at any time. Information on PCI-DSS can be found on the PCI Council's website. It is your responsibility to comply with these standards.
- Audit Right
If we believe that a security breach or compromise of data has occurred, Nexwee may require you to have a third party auditor that is approved by Nexwee conduct a security audit of your systems and facilities and issue a report to be provided to Nexwee, financial banks, and the Payment Networks.
Your privacy and the protection of your data are very important to us. Nexwee may collect or receive certain personal data about you and your customers to improve our services.
- Privacy of Others
If you receive information about others, including Cardholders, through the use of the Service, you must keep such information confidential and only use it in connection with the Service.
You may not disclose or distribute any such information to a third party or use any such information for marketing purposes unless you receive the express consent of the user to do so. You may not disclose card numbers to any third party, other than in connection with processing a card transaction requested by the buyer customer.
- Restricted Use
You are required to obey all laws, rules, and regulations applicable to your use of the Service (for example, those governing financial services, consumer protections, unfair competition, anti-discrimination or false advertising). In addition to any other requirements or restrictions set forth in this Agreement, you shall not: (i) utilize the credit available on any Card to provide cash advances to Cardholders,(ii) submit any card transaction for processing that does not arise from your sale of goods or service to a buyer customer, (iii) act as a payment intermediary or aggregator or otherwise resell our services on behalf of any third party, (iv) send what you believe to be potentially fraudulent authorizations or fraudulent card transaction, or (v) use your Service Account or the Service in a manner that Visa, MasterCard, American Express, Discover or any other Payment Network reasonably believes to be an abuse of the Payment Network or a violation of Payment Network rules.
You further agree not to, nor to permit any third party to, do any of the following: (i) access or attempt to access our systems, programs or data that are not made available for public use: (ii) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way material from us; (iii) permit any third party to use and benefit from the Service via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service, or decompile, disassemble or otherwise reverse engineer the Service, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Service except as expressly allowed under this section.
- Suspicion of Unauthorized or Illegal Use
We reserve the right to not authorize or settle any transaction you submit which we believe is in violation of this Agreement, any other Nexwee or Payment Gateway provider, or exposes you, other Nexwee users, our processors or Nexwee to harm, including but not limited to fraud and other criminal acts. You are hereby granting us authorization to share information with law enforcement about you, your transactions, or your Service Account if we reasonably suspect that your Service Account has been used for an unauthorized, illegal, or criminal purpose.
- Payment Network Rules
The Payment Networks have established guidelines, by laws, rules, and regulations ("Payment Network Rules"). You are required to comply with all Payment Network Rules that are applicable to merchants. You can review portions of the Payment Network rules at Visa and MasterCard. The Payment Networks reserve the right to amend the Payment Network Rules. Stripe, acting on behalf of Nexwee, reserves the right to amend the Agreement at any time with notice to you as necessary to comply with Network Rules or otherwise address changes in the Service.
- Disclosures and Notices
You agree that Nexwee can provide disclosures and notices, regarding the Service to you by posting such disclosures and notices on our website, emailing them to the email address listed in your Service Account, or mailing them to the address listed in your Service Account. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy. Such disclosures and notices shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered.
- Getting a Service Account
The Service is only made available to persons in the Malaysia that operate a business selling goods and services, and the Service is not made available to persons to accept card payments for personal, family or household purposes. To use Nexwee for your business, you will first have to register for a Nexwee service account ("Service Account"). When you register for a Service Account, we will collect basic information including your name, company name, location, email address, tax identification number and phone number.
You may choose to register as an individual (sole proprietor) or as a company or other business organization. If you register as a company or business, you must also provide information about an owner or principal of the business and you must be authorized to act on behalf of the business and have the authority to bind the business to this Agreement. In order to sign up a business to use the Service, you must agree to this Agreement on behalf of the business. If you have so agreed, the term "you" will mean you, the natural person, as well as the business you represent. You understand that by registering for a Service Account, and that you are simultaneously providing your information to Nexwee Payments for the purpose of opening a Service Account.
- Company Descriptions and Site URL
As part of your registration, you must provide the name under which you do business (which may be the business's legal name or a "doing business name") (e.g. MyStore Online Widgets), and a billing descriptor. These two fields and your site URL (eg. www.mystore.com) may appear in your customers' credit or debit card statements. To avoid customer confusion and transaction disputes, it is important that you enter a description that clearly identifies your business. You agree to indemnify us from any costs from disputes due to your failure to do so.
- **Verification and Underwriting To verify your identity, we will require additional information including your business SSM or Tax ID, Password, and date of birth. We may also ask for additional information to help verify your identity and assess your business risk including business invoices, reseller authorization or distributor information, a driver's license or other government issued identification, or a business license. We may ask you for financial statements. We may request your permission to do a physical inspection at your place of business and to examine books and records that pertain to your compliance with this Agreement. Your failure to comply with any of these requests within five (5) days may result in suspension or termination of your Service Account. You authorize us to retrieve additional information about you from third parties and other identification services. Nexwee may use your information to apply for card merchant acquiring accounts on your behalf with certain Payment Networks (such as American Express).
After we have collected and verified all your information, Nexwee will review your account and determine if you are eligible to use the Service. Nexwee may also share your information with our payment processors (such as Ipay88), each of which may also make a determination regarding your eligibility. We will notify you once your account has been either approved or deemed ineligible for use of the Service.
By accepting the terms of this Agreement, you are providing us with authorization to retrieve information about you by using third parties, including credit bureaus and other information providers. You acknowledge that such information retrieved may include your name, address history, credit history, and other data about you. We may periodically update this information to determine whether you continue to meet the eligibility requirements for a Service Account.
You agree that Nexwee is permitted to contact and share information about you and your application (including whether you are approved or declined), and your Service Account with the payment processor. This includes sharing information (a) about your transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the Service, (c) to create and update their customer records about you and to assist them in better serving you, and (d) to conduct Nexwee's risk management process.
- Service Account – Malaysia only
By registering for a Service Account, you are confirming to be either a legal resident of the Malaysia, a Malaysian citizen or a business entity authorized to conduct business by the state in which you operate. You may not export the Service directly or indirectly, and you acknowledge that the Service may be subject to export restrictions imposed by Malaysia law.
By accepting this Agreement you confirm that you will satisfy these requirements.
- Prohibited Businesses
- Age restricted products or services
- Age verification
- Any product or service that infringes upon the copyright, trademark, or trade secrets of any third party
- Any product, service or activity that is deceptive, unfair, predatory or prohibited by one or more Card Networks
- Bail bonds
- Bankruptcy lawyers
- Bidding fee auctions
- Chain letters
- Check cashing, wire transfers or money orders
- Collection agencies
- Counterfeit goods
- Credit card and identity theft protection
- Cruise lines
- Currency exchanges or dealers
- Door-to-door sales
- Drug paraphernalia
- Embassies, foreign consulates or other foreign governments
- Engaging in any form of licensed or unlicensed aggregation or factoring
- Engaging in deceptive marketing practices
- Essay mills
- Evading a Payment Network’s chargeback monitoring programs
- Extended warranties
- Firms selling business opportunities, investment opportunities, mortgage consulting, credit repair or protection or real estate purchases with no money down
- Flea markets
- Fortune tellers,
- “Get rich quick” schemes
- Human hair, fake hair, or hair-extensions
- Illegal products or services
- Mail-order brides
- Marijuana dispensaries and related businesses
- Money transmitters or money service businesses
- Multi-level marketing or pyramid schemes
- Negative response marketing
- Offering substantial rebates or special incentives to the Cardholder subsequent to the original purchase
- Personal computer technical support
- Pharmacies or pharmacy referral services
- Pre-paid phone cards
- Pseudo pharmaceuticals
- Quasi-cash or stored value
- Securities brokers
- Sexually-oriented products or services categorized as:
- Child pornography
- Fetish gear and services including S&M paraphernalia
- Hard-core sexually oriented products and services
- International match-making services
- Pornographic materials displaying sexually explicit pictures, images, and videos
- Sexually explicit telephone or online conversations and chat
- Sexually-oriented dating services, including companion/escort services and prostitution
- Sexually-oriented massage parlors, sex shows, sex clubs, topless bars, strip shows, and other adult entertainment
- Widgets that allow you to access pornography or pornographic ads
- Selling social media activity, such as Twitter followers, Facebook likes or Youtube views
- Selling video game or virtual world credits (unless you are the operator of the video game or virtual world)
- Sharing Cardholder’s data with another merchant for payment of up-sell or cross-sell product or service
- Shipping or forwarding brokers
- Sports forecasting or odds making
- Substances designed to mimic illegal drugs
- Telecommunications equipment and telephone sales
- Tobacco, e-cigarettes, vaporizers and accessories including e-juice
- Travel agencies or travel clubs
- Virtual currency that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world or related services
- Weapons and munitions
By accepting this Agreement you confirm that you will satisfy these requirements and will continue to do so in connection with your use of the Service.
- Processing Card Transactions and Receiving Your Funds
- Processing Card Transactions
You agree that you will honor all eligible cards presented for payment by your customers for your goods and services in accordance with the Payment Network rules, this Agreement and any operating guides that we may provide you from time to time. You agree that you will obtain an authorization from the Payment Network(s) for each card transaction, as required under the Payment Network rules, and will not submit a card transaction for settlement where there is a negative authorization or the card is otherwise expired. You acknowledge that the existence of an affirmative authorization from us or the Payment Networks does not mean that a particular card transaction will not be subject to Chargeback, Reversal or Claim at a later date.
You will not impose any fee or surcharge on a customer that seeks to use an eligible payment card. You will provide a receipt to the customer at the conclusion of the purchase transaction that includes all information required under Payment Network rules and applicable law.
You will display all Payment Network marks in accordance with the rules and procedures of the Payment Networks, and will use such marks only to indicate that you accept their cards for payment.
- Payouts and Transaction History
Nexwee do not accept funds on your behalf. All transactions will be made to payment gateway and incompliance Payment Network Rule. The actual timing of the transfers to your Bank Account of the settling funds will be subject to the Payout Schedule as defined by each payment gateway provider.
Notwithstanding the foregoing, you acknowledge that all credits for funds provided to you are provisional and subject to reversal including without limitation if there are adjustments for inaccuracies and errors (including rejects) and Chargebacks, Reversals or Claims in accordance with this Agreement and the Card Network payment rules, whether or not a transaction is charged back by the issuer of the Card or the Cardholder. Accordingly, you authorize us to initiate reversal or adjustment (debit or credit) entries to the Bank Account and to initiate or suspend such entries in accordance with this Agreement as may be necessary to grant or reverse provisional credit for any transaction.
After each payout of card settlement funds to your Bank Account, we will update information in your Service Account to reflect settlement. Information regarding your card transactions processed and settled with the Services ("Transaction History") will be available to you when you login to our website using your Service Account. We provide a minimum of one year of Transaction History on our website. Except as required by law, you are solely responsible for compiling and retaining permanent records of all transactions and other data associated with your Service Account, your Transaction History and your use of the Service.
- Reconciliations and Errors
Your Transaction History will be available to you when you login to our website using your Service Account. Except as required by law, you are solely responsible for reconciling your Transaction History with your actual card payment transactions. You agree to notify us of any discrepancies arising from such reconciliation and verification. We will investigate any reported discrepancies and attempt to rectify any errors that you or we discover. In the event you are owed money as a result of the discrepancy, we will transfer funds to your Bank Account in the next scheduled payout. Your failure to notify us of an error or discrepancy in your Transaction History within sixty (60) days of when it first appears on your Transaction History will be deemed a waiver of any right to amounts owed to you in connection with any such error or discrepancy in processing your card payments.
If you submit or cause us to process transactions erroneously, you agree to contact us immediately. We will investigate any reported errors and attempt to rectify any errors that you or we discover by crediting or debiting your Service Account as appropriate. Nexwee will only correct transactions that you process incorrectly if and when you notify us of such an error. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
- Refunds and Returns
By accepting these terms of service, you agree to submit any and all refunds and adjustments for returns of your products and services through the Service to the Cardholder's card in accordance with the terms of this Agreement and Payment Network Rules. Payment Network Rules require that you will (i) maintain a fair return, cancellation or adjustment policy; (ii) disclose your return or cancellation policy to customers at the time of purchase, (iii) not give cash refunds to a customer in connection with a Card sale, unless required by law, and (iv) not accept cash or any other item of value for preparing a Card sale refund.
Full refunds must be for the exact dollar amount of the original transaction including tax, handling charges, and other charges. The refund amount may not exceed the original sale amount except by an amount equal to any reimbursements to customer for postage costs incurred for product returns. Refunds processed though the Service must be submitted within sixty (60) days of the original transaction but in all cases, within three (3) days of approving the Cardholder refund.
For processed refunds, we, will deduct the refund amount (including any applicable Fees) from (i) settlement funds owed to you from processing of other card transactions, or (ii) funds in any Reserve Account (as defined below). You are solely responsible for accepting and processing returns of your products and services; we have no responsibility or obligation for processing such returns.
A Chargeback is typically caused when a customer disputes a charge that appears on their bill. A Chargeback may result in the reversal of a transaction, with the amount charged back to you. You can be assessed Chargebacks for: (i) customer disputes, (ii) unauthorized or improperly authorized transactions, or (iii) transactions that do not comply with Payment Network Rules or the terms of this Agreement or are allegedly unlawful or suspicious, or (iv) any reversals for any reason by the Network, our processor or acquiring bank, or the Cardholder's card issuing financial institution.
When a Chargeback is issued, you are immediately liable full amount of payment to your selected payment gateway.
- Contesting your Chargebacks
You or Nexwee may elect to contest Chargebacks assessed to your account. Nexwee may provide you with assistance including notifications and software to help contest your Chargebacks. We do not assume any liability for our role or assistance in contesting Chargebacks.
You agree to provide us with the necessary information, in a timely manner and at your expense, to investigate or help resolve any Chargeback. You also grant us permission to share records or other information required with the Cardholder, the Cardholder's financial institution, and your financial institution to help resolve any disputes. You acknowledge that your failure to provide us with complete and accurate information in a timely manner may result in an irreversible Chargeback being assessed.
If the Cardholder's issuing bank or the Payment Network does not resolve a dispute in your favor, we may recover the Chargeback amount and any associated fees from you as described in this Agreement.
We reserve the right, upon notice to you, to charge a fee for mediating or investigating Chargeback disputes.
- Excessive Chargebacks
At any point, Nexwee, the Payment Networks, or our payment processor(s) may determine that you are incurring excessive Chargebacks. Excessive Chargebacks may result in additional fees, penalties, or fines. Excessive Chargebacks may also result in additional controls and restrictions to your use of the Service, including without limitation, (i) changes to the terms of your Reserve Account, (ii) increases to your applicable Fees, (iii) delays in your Payout Schedule, or (iv) possible suspension or termination of your Service Account and the Service. The Networks may also place additional controls or restrictions as part of their own monitoring programs for merchants with excessive Chargebacks.
- Nexwee Fees
You agree to pay the Fees ("Fees") assessed by us to you for providing the payment services described in this Agreement. These fees will be calculated pursuant to the Fee Schedule incorporated into this Agreement.
We reserve the right to revise our Fees at any time, subject to a thirty (30) day notice period to you.
You acknowledge that you are also responsible for any penalties or fines imposed on us or directly on you by any Payment Network or financial institution as a result of your activities.
- Our Collection Rights
To the extent permitted by law, we may collect any obligations you owe us under this Agreement by deducting the corresponding amounts from the Reserve Account or from funds payable to you arising from the settlement of card transactions. Fees will be assessed at the time a transaction is processed and will be first deducted from the funds received for such transactions. If the settlement amounts or Reserve Account are not sufficient to meet your obligations to us, we may charge or debit the bank account or credit card registered in your Service Account for any amounts owed to us. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys' fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.
Additionally, we may require a personal guaranty from a principal of a business for funds owed under this Agreement. If we require a personal guarantee we will specifically inform you in advance.
In addition to the amount due, delinquent accounts may be charged with fees that are incidental to the collection of delinquent accounts and chargebacks including, but not limited to, collection fees and convenience fees and other third parties charges.
You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to Nexwee by you. Such communication may be made by Nexwee or by anyone on its behalf, including but not limited to a third party collection agent.
- Security Interest
You grant us a lien and security interest in all Card transactions (including future Card transactions), any rights to receive credits or payments under this Agreement, and all deposits and other property of yours possessed or maintained by us on your behalf. You will execute, deliver, and pay the fees for any documents we request to create, perfect, maintain and enforce this security interest.
- Termination and Other General Legal Terms
The Agreement is effective upon the date you agree to it (by electronically indicating acceptance) and continues so long as you use the Service or until terminated by Nexwee.
You may terminate this Agreement by de-activating your Service Account at any time by following the instructions on our website in your Account Profile. If you deactivate your Service Account, you may re-activate your Service Account at any time by following the instructions on our website and agreeing to the Payments Terms of Service. We may terminate this Agreement and close your Service Account at any time for any reason effective upon providing you notice. We may suspend your Service Account and your access to the Service and any funds in your Service Account, or terminate this Agreement, if (i) we determine in our sole discretion that you are ineligible for the Service because of the risk associated with your Service Account, including without limitation significant credit or fraud risk, or for any other reason; or (ii) you do not comply with any of the provisions of this Agreement, (iii) upon request of an Organization or the a card issuer.
- Effects of Termination
Upon termination and closing of your Service Account, we will immediately discontinue your access to the Service. You agree to complete all pending transactions, immediately remove all logos for Cards, and stop accepting new transactions through the Service. You will not be refunded the remainder of any fees that you have paid for the Service if your access to or use of the Service is terminated or suspended. Any funds in our custody will be paid out to you subject to the terms of your payout schedule.
Termination does not relieve you of your obligations as defined in this Agreement and we may elect to continue to hold any funds deemed necessary pending resolution of any other terms or obligations defined in this Agreement, including but not limited to Chargebacks, Fees, Refunds, or other investigations or proceedings.
Termination of this Agreement will not necessarily terminate your Nexwee Merchant Agreement, unless Nexwee informs you otherwise.
Upon termination you agree: (i) to immediately cease your use of the Service (ii) to discontinue use of any Nexwee trademarks and to immediately remove any Nexwee references and logos from your Site (iii) that the license granted under this Agreement shall end, (iv) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, and (v) we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Service, or any termination or suspension of the Service or deletion of your information or account data.
- Your License
We grant you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Service solely to accept and receive payments and to manage the funds you so receive. The Service includes our website, any software, programs, documentation, tools, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you by us. You will be entitled to download updates to the Service, subject to any additional terms made known to you at that time, when we make these updates available.
The Service is licensed and not sold. We reserve all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. We own the title, copyright and other worldwide Intellectual Property Rights (as defined below) in the Service and all copies of the Service. This Agreement does not grant you any rights to our trademarks or service marks.
For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.
- Your Liability
You are responsible for all Reversals, Chargebacks, Claims, fines, fees, penalties and other liability arising out of or relating to your breach of this Agreement, and/or your use of the Service. You agree to reimburse your customer, Nexwee, and any third party designated by Nexwee, for any and all such liability. "Chargeback" means a request that a buyer customer files directly with his or her card company or card issuing bank to invalidate a processed payment. "Claim" means a challenge to a payment that you or a buyer customer files directly with Nexwee. "Reversal" means Nexwee reverses the settlement of funds from a processed card transaction that you received because (a) the card transaction is invalidated by the card issuer, (b) the settlement funds were sent to you in error by (i) Nexwee; (ii) the processors, suppliers or licensors of Nexwee or (iii) any of the respective affiliates, agents, directors and employees of any of the entities listed in (i) or (ii) above, (c) the sender of the payment did not have authorization to send the payment (for example: the buyer used a card that did not belong to the buyer), (d) you received the payment for activities that violated this Agreement or any other Nexwee or any payment gateway agreement, or (e) we decided a Claim against you.
We will have the final decision-making authority with respect to Claims, including without limitation claims for refunds for purchased items that are filed with us by you or your customers. You will be required to reimburse us for your liability. Your liability will include the full purchase price of the item plus the original shipping cost (and in some cases you may not receive the item back). You will not receive a refund of any fees paid to us.
Without limiting the foregoing, you agree to defend, indemnify, and hold harmless Nexwee, their respective employees and agents (collectively "Disclaiming Entities") from and against any claim, suit, demand, loss, liability, damage, action or proceeding arising out of or relating to (i) your breach of any provision of this Agreement, and/or (ii) your use of the Service, including without limitation any Reversals, Chargebacks, Claims, fines, fees, penalties and attorneys' fees; (iii) your, or your employee's or agent's, negligence or willful misconduct; or (iv) third party indemnity obligations we incur as a direct or indirect result of your acts or omissions (including indemnification of any Payment Network or Issuer).
If you are liable for any amounts owed to us, if you do not do so, we may engage in collections efforts to recover such amounts from you at your cost and expense.
- Representation and Warranties
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name under which you sell goods and services; (d) any sales transaction submitted by you will represent a bona fide sale by you; (e) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a purchaser; (f) you will fulfill all of your obligations to each customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the purchaser; (g) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no sales transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; (i) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service.
- No Warranties
THE SERVICE AND ALL ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. USE OF THE SERVICE IS AT YOUR OWN RISK.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE SERVICE OR FROM (I) NEXWEE (II) THE PROCESSORS, SUPPLIERS OR LICENSORS OF NEXWEE; OR (III) ANY OF THE RESPECTIVE AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES OF ANY OF THE ENTITIES LISTED IN (I) OR (II) ABOVE (COLLECTIVELY, THE "DISCLAIMING ENTITIES" AND INDIVIDUALLY A "DISCLAIMING ENTITY"), WILL CREATE ANY WARRANTY. YOU SPECIFICALLY ACKNOWLEDGE THAT WE DO NOT HAVE ANY CONTROL OVER THE PRODUCTS OR SERVICES THAT ARE PAID FOR WITH THE SERVICES, AND WE CANNOT ENSURE THAT YOUR CUSTOMERS WILL COMPLETE A TRANSACTION OR ARE AUTHORIZED TO DO SO.
WITHOUT LIMITING THE FOREGOING, THE DISCLAIMING ENTITIES DO NOT WARRANT THAT THE INFORMATION THEY PROVIDE OR THAT IS PROVIDED THROUGH THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT THE SERVICE WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY SUBJECT MATTER DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. THE DISCLAIMING ENTITIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT HOW LONG WILL BE NEEDED TO COMPLETE THE PROCESSING OF A TRANSACTION.
THE DISCLAIMING ENTITIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND NEITHER NEXWEE WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
- Limitation of Liability and Damages
IN NO EVENT SHALL A DISCLAIMING ENTITY (AS DEFINED IN SECTION 8 ABOVE) BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL ANY OF THE DISCLAIMING ENTITIES (AS DEFINED IN SECTION 8 ABOVE) BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR SERVICE ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THE DISCLAIMING ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF SERVERS USED IN CONNECTION WITH THE SERVICES AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (C) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (D) ANY SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE; (E) ANY ERRORS, INACCURACIES OR OMISSIONS IN ANY CONTENT OR INFORMATION, FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR INFORMATION, IN EACH CASE POSTED, EMAILED, STORED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (F) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THS SECTION 9, THE DISCLAIMING ENTITIES' CUMULATIVE LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES AND IN ALL EVENTS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID BY YOU TO NEXWEE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF NEXWEE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE PROVISIONS OF THIS SECTION 9 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Service is controlled and operated from its facilities in the Malaysia. We make no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable Malaysia and International compliance, foreign and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the Malaysia, or are a foreign person or entity blocked or denied by the Malaysia government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the Malaysia.
- Right to Amend
We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Service or software with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice on our website or any other website maintained or owned by us for the purposes of providing services in terms of this Agreement. Any use of the Service or software after our publication of any such changes shall constitute your acceptance of this Agreement as modified.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without consent or other restriction.
- Change of Business
You agree to give us at least 30 days prior notification of your intent to change your current product or services types, your trade name or the manner in which you accept payment. You agree to provide us with prompt notification if you are the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. You also agree to promptly notify us of any adverse change in your financial condition, any planned or anticipated liquidation or substantial change in the basic nature of your business, any transfer or sale of 25% or more of your total assets or any change in the control or ownership of you or your parent entity. You will also notify us of any judgment, writ, warrant of attachment, execution or levy against 25% or more of your total assets not later than three days after you obtain knowledge of it.
This Agreement binds you and your respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or any permitted assigns.
- Third Party Services and Links to Other Web Sites
- Force Majeure
No party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this section will affect or excuse your liabilities and obligations including without limitation for Reversals, Chargebacks, Claims, fines, fees, refunds or unfulfilled products and services.
- Entire Agreement; Remedies
These terms and conditions and all policies and procedures that are incorporated herein by reference constitute the entire agreement between you and Nexwee with respect to the provision of the Service. In the event of a conflict between this Agreement and any other Nexwee or policy, this Agreement shall prevail on the subject matter of this Agreement. Except as expressly provided in this Agreement, these terms describe the entire liability of Nexwee, and our vendors and suppliers (including processors) and sets forth your exclusive remedies with respect to the Service and your access and use of the Service. If any provision of this Agreement (or portion thereof) is held to be invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
This Agreement has been reviewed by you with the benefit of independent legal counsel to the extent you consider necessary and any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the construction or interpretation of this Agreement. The rights conferred upon us in this Agreement are not intended to be exclusive of each other or of any other rights and remedies we may have at law or in equity. Rather, each and every right we may have under this Agreement, at law or in equity is cumulative and concurrent and in addition to every other right.