1. Why you have to deal with this Agreement
You are entering into this service agreement because you, or your customers, want to accept credit cards, debit cards, electronic bank drafts (ACH) and other forms of payment for the services you render. The companies, or “Networks” that facilitate these forms of payments – including but not limited to Visa, MasterCard, Discover, American Express, and the Federal Reserve System have operating rules by which ALL merchants who accept their forms of payment must abide.
One purpose of this agreement is to summarize literally thousands of pages of rules into a digestible summary. However, it is not a substitute for reviewing the entire list of rules by visiting the websites of these Associations. The information is openly available to the public and in order to use the Service, you must comply with these rules.
These Terms of Service are a legal agreement (this “Agreement”) between one of the following parties: merchants or software developers (each as more fully described below and being referred to in this agreement as “Merchant”, “Developer” “you” or “your” as applicable) and Eon Payment Solutions, LLC (“Eon,” “we,” “our” or “us”). As used in this Agreement, “Service” refers to Eon’s payment processing services, as well as our website, any software, programs, documentation, tools, hardware, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you by Eon, directly or indirectly. To use the Service, you must agree to all the terms of this Agreement.
2. Merchant Relationship with Eon and Others
If you are a Merchant engaged in sales of goods or services to third party purchasers (“Purchasers”) but not a “Developer” as described in Section 3 below, you appoint Eon to act as your attorney-in-fact (i) to establish and maintain bank accounts, credit card and debit card processing merchant accounts, and other necessary
financial accounts on your behalf; and (ii) to receive payment directives from you and tender them to credit card processors and banks for processing. These financial accounts are maintained for the purpose of receiving and accepting payment proceeds as well as adjustments, charge backs and payment of fees, all on your behalf. This Power of Attorney is coupled with an interest and thus irrevocable.
As a Merchant you must register with Eon. To register, you provide information, including email address and a self-selected password, in order to create an account (“Account”). You are responsible for maintaining the secrecy and security of your Account access credentials and for any use of or action taken under them.
The Networks require Eon to obtain additional information from Merchants, such as street address, telephone number, tax identification number (such as Social Security Number), date of birth, articles of incorporation, passports, driver’s license, business license, etc. You authorize Eon, directly or through third parties, to make inquiries or verify that this information is accurate (for example, through social media or third party databases). You specifically authorize Eon to request a consumer report that contains your name and address.
You must provide accurate and complete information. If we cannot verify that this information is complete and accurate, we have to suspend the delivery of our Services, or close your Account.
Eon allows individuals, businesses, and non-profit organizations to register for Eon if they are located in one of the 50 United States or the District of Columbia. A Merchant must be either a United States citizen, a legal permanent resident of the United States, or a United States business or nonprofit organization having a physical presence in the United States and authorized to conduct business by the state in which it operates. A Merchant who opens an Account must be eighteen (18) years of age or older. An individual may open an Account for a business or nonprofit organization only if it is legitimate and he/she has the authority to enter into this Agreement on its behalf. Your acceptance of this Agreement constitutes acceptance by the business or nonprofit organization.
Each Account must be linked to a verified U.S. bank account.
3. API Developer Relationship with Eon
Eon offers an application programming interface (“API”) to retrieve information from or submit requests to Eon. If you are a software developer who wishes to integrate your own software product with the Eon API (a “Developer”) then you, the applications that you develop, and the users
that these applications serve, are subject to the terms of this Agreement.
As a Developer, you must receive permission from, and open Eon Accounts for, individual Merchants. You may not use the Eon API to facilitate use of an Eon Account to process payments for goods and services provided by anyone other than the Merchant who owns the Eon Account. In the event a Merchant receives a chargeback for a payment facilitated by your API application, Eon will collect or attempt to collect those funds from the Merchant in accordance with the “Chargebacks” section below. In the event that your API or your actions or failures to act are the cause of a chargeback or in the event you violate this Agreement or cause Merchants who use your API to violate this Agreement), you may also be held liable for chargebacks associated with payments facilitated through your API. You agree never to ask for Merchants’ Eon Account passwords under any circumstances, nor any sensitive personal information (such as Social Security Numbers) in connection with your API application or use of the Service. You may charge fees in addition to Eon’s processing fees for the value-added services that you provide (“App Fees”). You may optionally participate in a buy-rate residual arrangement with Eon pursuant to Exhibit A, attached hereto. Your App Fees and residuals will be sent to you via ACH.
Eon will issue you an access token for each Merchant user of your API application who creates an Eon Account. You agree that access tokens are the property of Eon, and that misuse of access tokens by you or your users could cause substantial loss and damage to Eon. If your API application uses Eon’s Tokenization API to facilitate payments for Merchants, the credit card tokens will be associated with the API application, not the individual Merchant. Consequently, as the developer of the API application, you will be responsible for complying with the Payment Card Industry Data Security Standard (“PCI DSS”) with respect to the primary account number and other protected information you collect from Merchant and/or Purchaser users of the API application. You will implement appropriate measures to protect the security of the access tokens and credit card tokens, and you will notify Eon promptly if you suspect they have been misappropriated or misused.
You agree to pay Eon the processing fees set forth on EXHIBIT A, attached hereto. These fees will be payable by automatic direct debit immediately upon demand from the bank account you provide in Exhibit A.
4. Limitations on Eon’s and Others’ Responsibility
Neither Eon nor any other third party makes any representations or guarantees regarding Developer’s Merchants, Purchasers or others utilizing the Service. Use of our Service in no way represents any endorsement by Eon or any Network, of a Purchaser’s, Developer’s or Merchant’s existence, legitimacy, ability,
policies, practices, or beliefs. Eon does not have control of, or liability for, goods or services that are paid for with the Service. Merchant acknowledges and agrees that receipt of Purchaser information via the Service does not indicate that the Purchaser’s payment instrument has sufficient available funds, that a transaction will be authorized or processed, or that the transaction will not later result in a chargeback or reversal. Merchant also acknowledges that Eon does not own or control the Developers or their respective APIs. In the event that a Developer ceases doing business or terminates this Agreement or in the event that the API ceases to function or function in accordance with a Merchant’s expectations, such events could have a material adverse effect on the
Merchant. As a Merchant, you represent and warrant that you have conducted your own investigation of your Developer and its API, are not relying on Eon in any way in connection therewith and have determined on the basis of your own independent investigation that your Developer and its API are the best solution for your needs.
5. Merchant Fees
Eon charges fees to Merchants using the Service. The Platform may also charge fees that are collected by Eon on the Platform’s behalf. Depending on the nature of the relationship, fees may be withheld from payments deposited to the Merchant or may be debited against the Merchants as separate transactions. Eon also charges Merchants fees for exceptions processing, such as when a Merchant receives a chargeback. These fees are netted against other funds due to Merchant or debited from the Merchant’s bank account. The Merchant agrees to pay Eon the fees that are posted from time to time by Eon or the Platform that provides the Eon Service (the “Fees”). In general, Fees posted by Eon and the Platform are cumulative; however, in case of inconsistency, the Fees posted by the Platform apply.
Subject to the terms of this Agreement, we and the Platform reserve the right to change our Fees. We will provide you thirty (30) days’ advance notice of any such change in Fees charged by Eon. By continuing to use the Service, you consent to the change in Fees. To withdraw your consent, you must close your Account.
6. Electronic Disclosure and Consent
By accepting this Agreement, you agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively,
“Communications”) that we provide in connection with your Eon Account and your use of the Service. Communications may include but are not limited to:
communication in relation to delinquent accounts (which may also be by phone, and may be made by Eon or by anyone on its behalf, including a third party collection agent); Account statements and history; and federal and state tax statements.
We will provide these Communications to you by emailing them to you at the primary email address listed in your Eon Account registration, by emailing you a link or instructions how to access them on a website, or (if permitted by law) by posting them on the Website. Communications are considered received by you within 24 hours of the time they are emailed to you or posted to our Website. You further agree that your electronic signature has the same effect as your manual, physical signature. Documents will be provided in PDF format.
By giving your consent, you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records. It is important for you to retain copies of Communications because they may not be accessible in your Eon Account at a later date.
Updating Your Contact Information
It is your responsibility to keep your primary email address up to date. You understand and agree that if Eon sends you an electronic Communication but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, Eon will be deemed to have provided the Communication to you. Please note that if you use a spam filter that
blocks or re-routes emails from senders not listed in your email address book, you must add Eon to your email address book so that you will be able to receive the Communications we send to you.
You can update your primary email address or street address at any time by logging into your Eon Account. If your email address becomes invalid such that electronic Communications sent to you by Eon are returned, Eon may close your account, and you will not be able to transact any activity using your Eon Account until we receive a valid, functioning primary email address from you.
7. Prohibited Activities
By registering for Eon as a Merchant or API Developer, you also confirm that you will not accept payments or use the Service in connection with the following activities, items or services restricted by the Networks:
〈 Adult content
〈 Alimony, child support, or other court-ordered payments
〈 Bail bonds
〈 Bankruptcy lawyers
〈 Buyers clubs, discount clubs or membership clubs
〈 Check cashing, or payment for a dishonored check or for an item deemed uncollectible by another merchant
〈 Computer repair or maintenance services
〈 Cruise lines
〈 Credit counseling or credit repair agencies
〈 Credit protection or identity theft protection services
〈 Counterfeit or possibly counterfeit goods
〈 Debt collection, consolidation, or reduction services
〈 Digital currency
〈 Direct marketing of subscription offers
〈 Distressed Property Sales and Marketing
〈 Door to door sales
〈 Drugs, alcohol, or drug paraphernalia, or items that may represent them
〈 Factoring, liquidators, bailiffs, bail bondsmen
〈 Financial services, such as cash advances, bill payment, loans, prepaid cards, wire transfers, or sales of money orders or foreign currency
〈 Gambling or betting, including lottery tickets, casino gaming chips, off-track betting, fantasy football, memberships on gambling-related internet sites and wagers at races
〈 Hate, violence, racial intolerance, or the financial exploitation of a crime
〈 Infomercial merchants
〈 Internet pharmacies or pharmacy referral sites
〈 Inbound or outbound telemarketing businesses including lead generation businesses
〈 Licensed or franchised goods or services, such as Apple products
〈 Medical equipment
〈 Multi-level marketing businesses, pyramid or Ponzi schemes
〈 Obscene or pornographic items
〈 Pharmaceuticals, including medical marijuana
〈 Prepaid phone cards or phone services
〈 Prostitution, escort services, massage parlors, and other potentially sexually related services
〈 Real estate or motor vehicle sales
〈 Rebate or upsell programs
〈 Scrip-dispensing terminal
〈 Timeshares, timeshare resales and related marketing
〈 Tobacco, cigarettes, or e-cigarettes
〈 Unlawful activities or items, or activities or items that encourage, promote, facilitate or instruct others regarding the same
〈 Violent acts towards self or others, or activities or items that encourage, promote, facilitate or instruct others regarding the same
〈 Weapons, including replicas and collectible items, or ammunition or other accessories
〈 Weight loss programs
If you fall within the following exclusions, you will not accept the American Express card:
〈 Equities (including stocks, bonds, or any other ownership position in a corporation)
〈 Goods or services to be delivered more than four (4) months in the future, with an intention of gaining return on investment
〈 Internet auctions
〈 Political parties
〈 Telecommunications (including wireless, cable, satellite, wireline, and ISP)
〈 Travel industry (including car rental, lodging, and other travel tour operators) In addition, you may not use the Service for:
〈 Impersonating any person or entity or falsely claiming an affiliation with any person or entity;
〈 Collecting, or attempting to collect, personal information about users or third parties without their consent, or using such information except as necessary to use the Service;
〈 Sending unsolicited offers, advertisements, proposals, or junk mail or spam to others. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation materials, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signature;
〈 Accepting payments for goods or services provided by someone other than you;
〈 Providing yourself or others with a cash advance from a credit card;
〈 Any illegal purpose, or violating any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation, and data collection and privacy;
〈 Defaming, harassing, abusing, threatening, or defrauding others;
〈 Posting, transmitting, or distributing content that is false, misleading, unlawful, obscene, indecent, lewd, pornographic, hateful, abusive, inflammatory, or that violates the rights of others (including rights of publicity or privacy);
〈 Damaging, disabling, overburdening, or impairing Eon, including without limitation, using the Service in an automated manner;
〈 Interfering with another user’s enjoyment of the Service, by any means, including by uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code;
〈 Sending or receiving what Eon considers to be funds for something that may have resulted from fraud or other illegal behavior;
〈 Abusing the payment card system or violating the Operating Regulations, in the reasonable opinion of the Networks or Eon;
〈 Acting as a money services business or money transmitter;
〈 Transferring funds between bank accounts held in the same name;
〈 Creating an Account that is linked to another Account that has engaged in any of the foregoing activities. Eon may use evidence other than your Account information to determine whether you control an Account in someone else’s name, including but not limited to Internet Protocol addresses, common business names, phone numbers, and mailing addresses.
If Eon determines that you have received funds resulting from fraud or a prohibited activity, those funds may be frozen, returned to the Purchaser, or seized.
In addition, if we reasonably suspect that your Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Account, your access to the Eon services, and any of your transactions with law enforcement.
8. Our Role and Your Responsibilities
Eon provides hosting and data processing services for Merchants. Eon is a Payment Service Provider (“PSP”), not a bank, money transmitter, or Money Services Business (“MSB”), and we do not offer banking or MSB services as defined by the United States Department of Treasury.
As a PSP, Eon collects, analyzes and relays information
generated in connection with payments from Purchasers. You authorize Eon to provide this information to the acquiring bank (the “Bank”) in order for the Bank to facilitate payments from Purchasers through the Networks or the ACH, as applicable.
As between Eon and Merchant, all Purchaser, customer and user information, including but not limited to names, addresses, contact information, Account data, Cardholder Data, user history, payment history, and business and access information, received by Eon in performing the Services hereunder (collectively, the “Customer Data”) shall be deemed to be owned by Merchant. Merchant hereby grants Eon a non-exclusive, nontransferable limited license to use Customer Data to perform the Services authorized herein. Eon may not use any personally identifiable information included in such Customer Data for any unlawful or improper purpose and shall indemnify and, subject to specific exculpatory provisions of this Agreement, including, without limitation, Sections 23, 24, 33 and 34 hold Merchant harmless from any claim for damages and costs caused entirely by Eon’s use, storage or conveyance of such Customer Data in violation of the terms of this Agreement. Other than the license granted herein to carry out its obligations set forth in this Agreement, Eon shall have no right, title or interest in the Customer Data.
In order to act as a PSP, Eon must enter into agreements with the Networks, processors, and the Bank. You are not a third-party beneficiary of these agreements. Each of the Networks is a third-party beneficiary of this Agreement and has beneficiary rights, but not obligations, and may enforce this Agreement against you. Some of these third parties may require a direct agreement with you. If you are required to enter into such an agreement and decline to do so, we may suspend or terminate your Account.
You acknowledge that, if you reach certain American Express processing levels, you may be converted to a direct card acceptance relationship with American Express and, upon conversion, you will be bound by the then-current American Express Card acceptance agreement and American Express will set the discount and other fees payable by you for American Express Card acceptance.
You must abide by the applicable Operating Regulations and ACH Rules. For example, where you accept payment cards on your website, you will display each card’s logo with equal size and prominence, and you shall not display a preference for, or discriminate against, one card brand over another. If you are using the Eon subscriptions feature, you agree that it is your responsibility to comply with applicable laws, including the Electronic Funds Transfer Act (Regulation E), including by capturing your Purchaser’s agreement to be billed on a recurring basis. You may not resell any hardware provided to you by Eon or a third party for use with the Service.
Notwithstanding Eon’s assistance in understanding the Operating Regulations and ACH Rules, you expressly acknowledge and agree that you are assuming the risk of compliance with all provisions of the Operating Regulations and ACH Rules, regardless of whether you have possession of those provisions. The Networks make excerpts of their respective Operating Regulations available on their websites (including usa.visa.com, www.mastercard.com, www.americanexpress.com and www.discover.com).
9. Your Payment Authorization
As a Merchant, you authorize Eon to hold, receive, disburse and settle funds on your behalf. Your authorization permits us to generate a paper draft or electronic funds transfer to process each payment transaction that you authorize. Subject to this Agreement, you also authorize Eon to debit or credit any payment card or other payment method we accept.
You authorize Eon to initiate electronic ACH entries to each bank account that you set up on the Website and to initiate adjustments for any transactions credited or debited in error. You agree to be bound by the ACH Rules, and you agree that all ACH transactions that you initiate will comply with all applicable law. Your authorization will remain in full force and effect until you notify us that you revoke it by contacting Customer Support in accordance with instructions on our Website or by closing your Account. You understand that Eon requires a reasonable time to act on your revocation, not to exceed five (5) business days.
10. Accepted Forms of Payment
Eon supports most domestic credit, debit, prepaid or gift cards with a Visa, MasterCard, American Express or Discover logo. In addition, Eon supports most international cards with these logos. We may add or remove support for certain payment cards at any time without prior notice. We may elect only to process cards that receive an authorization from the applicable issuer. As a Merchant, you agree to accept all of the cards issued by Networks that Eon supports in accordance with the terms of this Agreement.
Eon also supports payments via ACH from U.S.-based Purchasers with a U.S. bank account. We may conduct verification checks on Purchasers to ensure account ownership and sufficient balance, and we may refuse to process payments from Purchasers at our discretion.
11. Underwriting and Sharing Information
We may share some or all of the information about you and your transactions with our processor, the Networks, and our other partners (and their respective affiliates, agents, subcontractors, and employees), who may use this information to perform their obligations under their agreements with Eon, to operate and promote their respective networks, to perform analytics and create reports, to prevent fraud, and for any other lawful purpose. American Express and other Networks may use your name, address, and website address (URL) in any media from time to time. If Eon is directed by the Networks or the processors through which Eon provides the Services, Eon may suspend or terminate your use of the Services.
You agree that Eon is permitted to contact and share information about you and your Account with banks and other financial institutions. 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 Eon’s risk management process.
Transactions may be disputed at any time up to 90 days from the date of transaction, regardless of state, by the Purchaser. Disputes resolved in favor of the Purchaser may result in reversal of the disputed transaction, regardless of state.
Eon reserves the right to limit or restrict transaction size or volume at any time. If you would like to increase your limits, please contact Customer Support. Upon receiving this request, Eon will conduct a review of your Account, and decide whether to lift or remove these limits. Eon will consider a variety of factors in making this decision and will make this determination at its sole discretion.
13. Payout Schedule
Eon will transfer funds to the Merchant’s Account according to the schedule the Merchant selects (daily, weekly, or monthly). Merchants may request ad-hoc settlement at any time, by ACH transfer. Regardless of the payout schedule selected by the Merchant, Eon will transfer funds to the Merchant’s Account no more than thirty (30) days after funds
settle, subject to any “Reserve” imposed under Section 14 below. If Eon cannot transfer the funds to the Merchant’s Account (due to inaccurate or obsolete bank account information entered by the Merchant, or for any other reason), Eon may refund the funds to the Purchaser or escheat them pursuant to Section 23 below. Neither the Bank, Eon, nor the Purchaser will have any liability to Merchant for funds so refunded.
Settlements to a bank account may be limited or delayed based on your perceived risk and history with Eon. If you would like to request an increase to your settlement limit, please contact Eon Support. Upon receiving this request, Eon will conduct a review of your account. Eon will consider a variety of factors in making this decision and will make this determination at its sole discretion.
Should Eon need to conduct an investigation or resolve any pending dispute related to your Account, Eon may defer payout or restrict access to the disputed funds for the entire time it takes us to do so. Eon may also defer payout or restrict access to the disputed funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity. Eon shall provide you with written notice of its receipt of any such legal process or request from law enforcement or governmental entities.
Furthermore, if Eon reasonably suspects future chargebacks or disputes as a result of transactions to your Account, Eon may defer payout and/or restrict access to your funds subject to such chargeback or dispute until Eon reasonably believes, in its sole discretion, that the risk of receiving a chargeback or dispute has passed.
All settlements to Merchants are subject to review for risk and compliance purposes and can be delayed or postponed at Eon’s sole discretion.
At any time and from time to time, the Bank may temporarily suspend or delay payments to you and/or designate an amount of funds that the Bank must maintain in your Account (“Reserve”) to secure the
performance of your payment obligations under this Agreement. Following thirty (30) days advance written notice to you, we may require a Reserve for any reason, including high chargeback risk or indications of performance problems related to your use of the Service.
The Reserve will be in an amount as reasonably determined by us to cover anticipated chargebacks, returns, unshipped merchandise and/or unfulfilled services or credit risk based on your processing history or such amount designated by our processor. The Reserve may be raised, reduced or removed at any time by Eon, in its reasonable discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you in Eon’s favor, or otherwise as Eon or its processor may determine or require. If you do not have sufficient funds in your Reserve, Eon may, following the provision of written notice to you, fund the Reserve from any funding source associated with your Account, or from any other Account under your control or any funding source associated with such other Account, including but not limited to any funds (a) credited to your Account,
(b) due to you under this Agreement, or (c) available in your bank account, or other payment instrument registered with us.
You grant us a security interest in and lien on any and all funds held in any Reserve, and also authorize us to make any withdrawals or debits from the Reserve, without prior notice to you, to collect amounts that you owe us under this Agreement, including without limitation for any reversals of deposits or transfers made to your Account. You will execute any additional documentation required for us to perfect our security interest in any funds in the
Reserve. This security interest survives for as long as we hold funds in your Reserve; however, it does not apply to any funds for which the grant of a security interest would be prohibited by law. You irrevocably assign to us all rights and legal interests to any interest or other earnings that accrue or are attributable to your Reserve. These rights will survive the term of this agreement.
15. Cardholder Data Security
“Cardholder Data” is information associated with a payment card, such as account number, expiration date, and CVV2. Eon is a validated PCI Level 1 Service Provider and so is qualified to handle Cardholder Data in connection with the Service. Eon will maintain all applicable PCI DSS requirements to the extent Eon possesses or otherwise stores, processes, or transmits cardholder data on your behalf, or to the extent Eon could impact the security of your cardholder data environment.
If you handle, transmit, or store any Cardholder Data in connection with your use of the Eon Service or the Eon API, you agree to comply at all times with the Payment Card Industry Data Security Standards (“PCI DSS”). Further, you agree to certify such compliance and provide documentation in accordance with Operating Regulations, or when asked by Eon to do so. You also agree that you will use only PCI compliant service providers in connection with the storage, processing, or transmission of Cardholder Data. You will remove Cardholder Data from your systems, and any other place where you store it, as soon as practicable and in no event more than 24 hours after you receive an authorization decision.
You are fully responsible for the security of data (including but not limited to Cardholder Data) on your website or otherwise in your possession or control. You agree to comply with all applicable laws, Operating Regulations, and rules in connection with your collection, security and dissemination of any personal, financial, or transaction information.
Unless you receive the express consent of your customer, you may not retain, track, monitor, store, disclose or otherwise use Cardholder Data (e.g. to send any marketing or promotional materials to Purchaser) except for the transaction for which it was given and any post-transaction activities in connection with such immediate transaction (e.g. chargeback).
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld, in connection with your use of the Service.
You are solely responsible for collecting, withholding, reporting and remitting correct any taxes to the appropriate tax authority. Eon is not obligated to, and will not, determine whether taxes apply, or calculate, collect, report or remit any taxes to any tax authority arising from your use of the Service.
Eon, or the bank which Eon uses to collect, hold and transfer funds from Purchasers pursuant to this Agreement (the “Sponsor Bank”), may have tax reporting responsibilities in connection with the Service. For example, Eon or the Bank will report to the Internal Revenue Service (“IRS”) on Form 1099-K as required by law, your name, address, Tax Identification Number (such as Employment Identification Number or Social Security Number), the total dollar amount of the payments you receive in a calendar year, and the total dollar amount of the payments you receive for each month in a calendar year.
17. Customer Service Provided by Merchants and Developers
As a Merchant or Developer, you are solely responsible for all customer service issues relating to your goods or services, including pricing, order fulfillment, order cancellation by you or the Purchaser, returns, refunds
and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences
with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from Eon. You will cooperate with Eon (and your Developer if you are a Merchant) to ensure that Purchasers have access to clear customer service information, including an active customer service email address and telephone number.
18. Refunds and Returns Provided by Merchants
As a Merchant, you agree to process returns of, and provide refunds and adjustments for goods or services through your Eon Account in accordance with this Agreement and the Operating Regulations and ACH
Rules. The Operating Regulations require that you will (a) maintain a fair return, cancellation or adjustment policy;
(b) disclose your return or cancellation policy to Purchasers at the time of purchase, (c) not give cash refunds to a Purchaser in connection with a payment card sale, unless required by law, and (d) not accept cash or any other item of value for preparing a payment card sale refund. Your refund policies must be the same for all payment methods. If your Purchaser is dissatisfied with your refund policy, the Purchaser may chargeback the payment. You may not bill or collect from any Purchaser for any purchase or payment by means of a card unless the Purchaser has exercised chargeback, you have been fully paid for the charge, and you otherwise have the right to do so.
19. Merchant’s Liability for Chargebacks
The amount of a payment may be charged back to you, as a Merchant, if (a) it is disputed by a Purchaser,
(b) it is reversed for any reason, (c) it was not authorized or we have any reason to believe that the transaction was not authorized, or (d) it is unlawful, suspicious, or in violation of the terms of this Agreement. You are responsible for all chargebacks, whether or not the chargeback complies with the Operating Regulations.
20. How Eon Handles Chargebacks
pending chargebacks, the Bank may delay payouts to you.
As a Merchant, you owe us and will immediately pay us the amount of any chargeback and any associated Fees, fines, or penalties assessed by the Bank, our processor or the Networks. If you do not have sufficient funds in your Account, we will have the remedies set forth in “Our Set-off and Collection Rights” below. If you have
Further, if we reasonably believe that a chargeback is likely with respect to any transaction, Eon may withhold the amount of the potential chargeback from payments otherwise due to you under this Agreement until such time that: (a) a chargeback is assessed due to a Purchaser’s complaint, in which case Eon will retain and refund the funds; (b) the period of time under applicable law or regulation by which the Purchaser may dispute that the transaction has expired; or (c) we determine that a chargeback on the transaction will not occur.
If we determine that you are incurring an excessive amount of Chargebacks, Eon may establish controls or conditions governing your Account, including without limitation, by (a) assessing additional Fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated chargebacks and related fees, (c) delaying payouts, and (d) terminating or suspending the Service or closing your Account.
You agree to assist us when requested, at your expense, to investigate any of your transactions processed through the Service. To that end, you permit us to share information about a chargeback with the Purchaser, the Purchaser’s financial institution, and your financial institution in order to investigate and/or mediate a chargeback. We will request necessary information from you to contest the chargeback. If the chargeback is contested successfully, we will release the reserved funds to you. If a chargeback dispute is not resolved in your favor by the Networks or issuing bank or you choose not to contest the chargeback, we may recover the chargeback amount and any associated fees as described in this Agreement. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within seven (7) days of our request, may result in an irreversible chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating chargeback disputes.
21. Our Set-off and Collection Rights
To the extent permitted by law, Eon may set off any obligation you owe us under this Agreement (including chargebacks) or any other agreement between you and Eon or any of its affiliates against any credit in your Account or against any other amounts due to you. All Fees are deducted first from the transferred or collected funds and thereafter from your Account. If you do not have sufficient funds, Eon may collect from any funding source associated with your Account, or from any other Account under your control, or from any other source of funds owed by Eon or its affiliates to you, including but not limited to any funds (a) deposited by you, (b) due to you under this Agreement or any other agreement between Eon or its affiliates and you, or (c) available in your bank account, or other payment instrument registered with the bank. Your failure to pay in full 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, collection agency fees, and interest at the lesser of one-and-one-half percent (1-1/2%) per month or the highest rate permitted by law. In its discretion, Eon may make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution. You hereby expressly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided by you to Eon. Such communication may be made by Eon or by anyone on its behalf, including but not limited to a third party collection agent.
22. Dormant Accounts
If there is no activity in your Account (including access or payment transactions) for the period of time set forth in the applicable unclaimed property laws, and you have a credit, we may notify you by sending an email to your registered email address. We may also notify you by U.S. mail. We will give you the option of keeping your Account open, withdrawing the funds, or requesting a check. If you do not respond to our notice within the time period specified in the notice, we may close your Account and escheat your funds in accordance with applicable law.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
If you discover a security-related issue, you agree to inform us of the issue immediately by contacting the Eon Security Team at email@example.com. Unless otherwise required by law, in which event you agree to notify Eon of such requirement, you also agree not to disclose the issue until Eon has addressed it.
If your Eon Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Service
and to remove all card logos from your website and wherever else they are displayed, (c) that the license provided under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of your information and Account data stored on our servers, and (e) that Eon shall not be liable to you or any third party for termination of access to the Service, deletion of your information or Account data, or export of your information or Account data.
26. Your Right to Terminate
If you are a Merchant, you may terminate this Agreement by closing your Eon Account at any time. When you close your Eon Account, any pending transactions will be cancelled. Any funds holding in custody for you at the time of closure, less any applicable Fees, will be paid out to you according to your payout schedule, assuming all payout-related authentication requirements have been fulfilled (for example, you may not close your Eon Account as a means of evading your payout schedule). If an investigation is pending at the time you close your Eon Account, Eon may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds in dispute, Eon will release those funds to you. If you are a Developer, you may terminate this Agreement for any reason or no reason at any time upon notice to us. If a Developer terminates this Agreement, it will have the effect of also terminating this Agreement for Merchant’s utilizing that Developer’s API, as well as such Merchant’s Accounts.
27. Our Right to Terminate
Upon our providing you with thirty (30) days advance written notice, we may terminate this Agreement and/or close a Merchant’s Account for any reason or no reason at any time upon notice to you. We may also suspend the Service and suspend access to your Account (including the funds in your Account) if you (a) have violated the terms of the Eon’s policies or this Agreement, (b) pose an unacceptable credit or fraud risk to us, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct. Notwithstanding the foregoing, if directed by the Networks or the processors through which we provide the Service or if required by the Operating Regulations, we may terminate this Agreement and/or close a Merchant’s Account immediately and without prior notice.
28. Effect of Termination
We will not be liable to you for compensation, reimbursement, or damages in connection with any termination or suspension of the Service. Any termination of this Agreement does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement nor does it terminate any obligations or other provisions of this Agreement which by their terms or nature were intended to survive such termination, such as the indemnification obligations described in Section 31.
Upon termination, within ten (10) business days of Merchant’s payment of all amounts owed to Eon hereunder, Eon shall, at no additional cost to Merchant, securely transmit any and all Customer Data in its possession to Merchant, or Merchant’s authorized designee, in a format reasonably agreeable to Merchant. The parties agree that such transfer of the Customer Data shall be made in compliance with the Payment Card Industry requirements, where applicable.
29. Your License
Eon grants 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. You will be entitled to download updates to the Service, subject to any additional terms made known to you at that time, when Eon makes these updates available.
You may not, nor may you permit any third party to, do any of the following: (i) access or monitor any material or information on any Eon system using any manual process or robot, spider, scraper, or other automated means unless you have separately executed a written agreement with Eon referencing this section that expressly grants you an exception to this prohibition; (ii) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material or information from Eon; (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) violate the restrictions in any robot exclusion headers on the Service, work around, bypass, or circumvent 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. You may not use the Service on a mobile device that is “jail broken” or otherwise modified contrary to the manufacturer’s software or hardware guidelines. Your use of the Service may be subject to the terms of your agreements with your mobile device manufacturer and your carrier.
30. Eon’s Intellectual Property Rights
The Service is licensed and not sold. Eon reserves all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. Eon owns the title, copyright and other worldwide intellectual property rights in the Service and all copies of the Service. This Agreement does not grant you any rights to Eon’s trademarks or service marks, nor may you remove, obscure, or alter any of Eon’s trademarks or service marks included in the Service.
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 (“Feedback”). By submitting Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Eon under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Eon does not waive any rights to use similar or related ideas previously known to Eon, or developed by its employees, or obtained from sources other than you.
You will indemnify, defend and hold us and our processors and partners harmless (and our and their respective employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a third party person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our policies or the Operating Regulations; (b) your wrongful or improper use of the Service; (c) any transaction submitted by you through the Service (including without limitation the accuracy of any product information that you provide or any claim or dispute arising out of products or services offered or sold by you), except to the extent that any such damages result entirely from the acts or omissions of Eon; (d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (e) your violation of any law, rule or regulation of the United States or any other country; (f) any other party’s access and/or use of the Service with your unique username, password or other appropriate security code.
32. Representations and Warranties
You represent and warrant to us that: (a) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement; (b) the name identified by you when you registered is your name or business name under which you sell goods and services; (c) any sales transaction submitted by you will represent a bona fide sale by you; (d) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a purchaser; (e) you will fulfill all of your obligations to each Purchaser for which you submit a transaction and will resolve any consumer dispute or complaint directly with the Purchaser; (f) 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; (g) except in the ordinary course of business, no transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; (h) 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;
(i) your use of the Service will be in compliance with this Agreement.
33. Disclaimer of Warranties by Eon
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, EON, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS AND THE BANK (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
EON DOES 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 EON WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
All third party hardware and other products included or sold with the Service are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer or distributor directly. EON MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
34. Limitation of Liabilities and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EON, ITS PROCESSORS, SUPPLIERS, LICENSORS, NETWORKS, OR THE BANK (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL EON BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR EON ACCOUNT OR THE INFORMATION CONTAINED THEREIN. IN NO EVENT WILL EON BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EON, ITS PROCESSORS, THE NETWORKS, AND THE BANK (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, OR ANY DELAY IN PERFORMING OUR OBLIGATIONS UNDER THIS AGREEMENT, REGARDLESS OF WHETHER THE FAILURE OR DELAY IS CAUSED BY AN EVENT OR CONDITION BEYOND OUR CONTROL; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL EON, ITS PROCESSORS, AGENTS, SUPPLIERS, LICENSORS, NETWORKS, OR THE BANK (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF EON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Service is controlled and operated from facilities in the United States. Eon makes 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 United States 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 United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact Eon Support with any dispute. If we cannot resolve your concerns, we agree to an informal and inexpensive dispute resolution process requiring individual arbitration.
36. Binding Individual Arbitration
You and Eon agree to arbitrate all “Disputes,” defined as any claim, controversy or dispute (whether involving contract, tort, equitable, statutory or any other legal theory) between you and Eon, including but not limited to any claims relating in any way to this Agreement (including its breach, termination and interpretation), any other aspect of our relationship, Eon advertising, and any use of Eon software or services. “Disputes” also include any claims that arose before this Agreement and that may arise after termination of this Agreement. Notwithstanding the foregoing, you or Eon may choose to pursue a claim in court and not by arbitration if you fail to timely pay amounts due. Eon may assign your account for collection, and the collection agency may pursue in any court of competent jurisdiction any claim that is strictly limited to the collection of past due amounts and any interest or cost of collection permitted by law or this Agreement.
Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON A INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST EON. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) (“AAA”) according to this provision and the applicable arbitration rules. A form for initiating arbitration proceedings is available on the AAA’s website at www.adr.org. Consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in their local small- claims court rather than through arbitration. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. If you are a consumer bringing a claim relating to personal, household, or family use, any arbitration hearing will occur within the county or parish where you reside or at another mutually agreed location. Otherwise, any arbitration hearing will occur in Arkansas. You or Eon may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Eon subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you or by Eon, unless the arbitrator requires otherwise. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, but if you are unable to pay any of them, Eon will pay them for you. In addition, Eon will reimburse all such fees and costs for claims totaling less than $75,000 unless the arbitrator determines the claims are frivolous. Likewise, Eon will not seek its attorneys’ fees or costs in arbitration unless the arbitrator determines your claims or defenses are frivolous. In the event the arbitrator determines the claims you assert in the arbitration are frivolous, you agree to reimburse Eon for all fees associated with the arbitration paid by Eon on your behalf that you otherwise would be obligated to pay under the AAA’s rules. For purposes of this arbitration provision, references to you and Eon also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Service. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the County of Pulaski, Arkansas, or federal court for the Eastern District of Arkansas.
37. Governing Law
This Agreement and any Dispute will be governed by Arkansas law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within Arkansas, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction. You agree that any Dispute will be litigated or arbitrated, as applicable, in Pulaski County, Arkansas, and you consent to the jurisdiction of the courts sitting therein and agree that such a forum is not inconvenient to you.
38. Limitation on Time to Initiate a Dispute
Unless otherwise required by law, an action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Eon without restriction.
40. Third Party Services and Links to Other Web Sites
You may be offered services, products and promotions provided by third parties and not by Eon.
41. Amendment of Agreement
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 software or Service with notice that we in our sole discretion deem to be reasonable in the circumstances, including notice on our Website or any other website maintained or owned by us and identified to you. Any use of our software or Service after our publication of any such changes shall constitute your acceptance of this Agreement as modified. No modification or amendment to this Agreement shall be binding upon Eon unless in a written instrument signed by a duly authorized representative of Eon. For the purposes of this Section 43, a written instrument shall expressly exclude electronic communications such as email and electronic notices by shall include facsimiles.
42. Other Provisions
Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you and Eon, and they describe the entire liability of Eon and its vendors and suppliers (including processors) and your exclusive remedy with respect to your access and use of the Service. In the event of a conflict between this Agreement and any other Eon agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. If any provision of this Agreement is 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. Headings and summaries are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that Eon may have under trade secret, copyright, patent or other laws. Eon’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement shall survive and remain in effect in accordance with its terms upon the termination of this Agreement.