The terms “us”, “our”, and “we” refer to NXGEN. This website describes a merchant account portal for account administration and certain incentives that may be provided to you in conjunction with your merchant account. We own this URL address (the “Site”). Our corporate headquarters are located at 940 Spokane Ave., Suite 5 Whitefish, Montana 59937.
The terms “you” or “your” refer to the user of this Site. If you use this Site, you are expressly agreeing to comply with and be bound by all of the following terms and conditions of use. If you disagree with any part of these terms and conditions, you are prohibited from using this Site.
You expressly agree to the following terms and conditions of use the Site:
1) Program Incentives. Subject to the terms and conditions set forth herein, if you comply with the terms of your merchant agreement, you may be able to take advantage of certain incentives provided to you. You must login to access the description of the program incentives.
2) Free Trial Period. You will have free access to use the Site for at least 30 days. After expiration of the initial trial period, you will be charged a monthly usage fee described in Section 3 below.
3) Usage Fee. You will be charged a monthly usage fee following the trial period described in Section 2 above. Your monthly usage fee will be billed on your monthly statement. Usage fees are non-refundable. If the amount of the fee changes after your initial usage for any reason, we will provide at least thirty (30) days advance written notice to you regarding any such change. You may cancel the usage fee in accordance with section 5, below.
4) Eligibility. You and/or your employees may use the Site for your business needs. If you use the Site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You agree to immediately notify us of any unauthorized use of your account. You acknowledge and agree to indemnify and hold us harmless from and against any claim, loss, or liability (including reasonable attorney’s fees), arising from any wrongdoing or the violation by you or by anyone using your account.
5) Right to Cancel Usage. You have the right to cancel your usage of the Site at any time. To cancel your usage, simply click on the “Unsubscribe” button found at the footer of the Site and follow the instructions. If you cancel during the free trial period, you will not be charged a fee. After the free trial period expires, if you cancel before the 15th day of a month, you will not be charged a fee for that month; however, if you cancel on or after the 15th day of a month, you will be charged a fee for that month.
7) Governing Law. Your agreement to abide by these terms and conditions and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of Montana , exclusive of its conflict or choice of law rules.
8) Arbitration. Any dispute, claim or controversy arising out of or relating to your agreement to abide by these terms and conditions or the breach, termination, enforcement, interpretation or validity of these terms and conditions, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by exclusively by binding arbitration before a single arbitrator, in accordance with the provisions of the Federal Arbitration Act or any successor statute. The parties expressly agree that the arbitrator may not consolidate or join more than one person’s or party’s claims, and may not otherwise preside over any form of a consolidated or class proceeding or over claims brought in a purported representative capacity on behalf of the general public, other merchants or other persons or entities similarly situated. Furthermore, the arbitrator may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
9) Disclaimers; Indemnification and Limitation of Liability.
A) Disclaimers. We provide links to third party sites as a convenience and the inclusion of any such link on the Site does not imply our endorsement of either the third party site, the organization operating such third party site, or any of their products or services. We are not responsible for examining or evaluating, and we do not warrant the offerings of any of these third-party vendors or businesses, or the content of their Web sites. We do not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. A visit to any third party site or page from NXGEN via any such link is done entirely at your own risk. If you find any link on the Site or any linked web site objectionable for any reason, please notify us immediately.
B) Indemnification. You agree to indemnify, defend and hold us, our contractors, employees, agents and our third party suppliers, licensors and partners harmless from any and all claims, losses, damages and liabilities, including without limitation legal fees and expenses, arising out of or related to Your use of the Site, or any violation by You of these terms and conditions. We reserve the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify us, including rights to settle, and You agree to cooperate with the defense and settlement of these claims. We will use reasonable efforts to notify You of any claim, action or proceeding brought by a third party that is subject to the foregoing indemnification upon our becoming aware of it.
C) No Liability. THIS SITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE ARE PROVIDED BY US ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. WE, NXGEN, MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK.TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND OF NON-INFRINGEMENT. WE DO NOT WARRANT THAT THIS SITE, INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE; THEIR SERVERS; OR ELECTRONIC COMMUNICATIONS SENT BY US ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. THE PRECEDING NOTWITHSTANDING, IF WE ARE DEEMED LIABLE FOR ACTS OR OMISSIONS EITHER DIRECTLY OR INDIRECTLY RELATED TO NXGEN, THEN OUR AGGREGATE LIABILITY SHALL NOT, UNDER ANY CIRCUMSTANCE, EXCEED BY THE AMOUNT REPRESENTED BY ONE MONTHLY USAGE FEE.
10) Amendments and Severability. We reserve the right to make changes to the Site, policies, and these Terms and Conditions at any time, with or without notice. Amendments or changes to these Terms and Conditions, shall not be deemed amendments or changes to your Merchant Agreement for purposes of any termination provision enumerated in said Merchant Agreement. If any of these terms or conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining terms or condition.
11) Termination. We reserve the right to immediately terminate your usage of the Site: (i) in the event of any breach of your Merchant Agreement or its termination for any reason; or (ii) by refunding the last monthly usage fee paid.