transmodus Corporation Terms and Conditions

Please review these transmodus Corporation Terms and Conditions ("Terms and Conditions") before you register with the transmodus Corporation ("transmodus") website ("Website") located at URL: www.transmodus.net. When you click ("I Accept") to register with the Website, you will accept these Terms and Conditions.

Terms and Conditions

Your use of the Website and all interactive programs on the Website that transmodus may make available from time to time (collectively, the "Services") are governed by these Terms and Conditions. To use many of the Services, you must register with the Website and click to accept these Terms and Conditions. If you simply visit the Website but do not register to use the Services, your use of the Website will nonetheless be governed by these Terms and Conditions, and by using the Website, you accept and agree to these Terms and Conditions.

Consent to Electronic Records, Signature, and Acceptance of Terms and Conditions. Both the Terms and Conditions and the Website include important disclosures and regulatory information that are associated with the Services. When you click "I Agree," you agree to permit transmodus to send you such information in email, text messaging and HTML format.

You further acknowledge and agree that:

(a) you understand that these Terms and Conditions are a legally binding agreement between you (on behalf of yourself and the company you represent ) and transmodus and are the equivalent of a signed, written contract;

(b) you will use the Services and the Website and any related software or hardware that may be provided to you by or on behalf of transmodus, in a manner consistent with all applicable laws and regulations, the Terms and Conditions and any applicable Rules and Guidelines (as defined below) as they may be amended by transmodus from time to time; and

(c) you have received, read, understood and accept the Terms and Conditions, and you acknowledge that you can access the Terms and Conditions and other disclosures and regulatory materials on the Website. If you do not agree to abide by the Terms and Conditions, please click "Cancel" and you will exit from the registration process. If you click "Cancel" you may not proceed with the registration process. You should be aware, however, that any use of the Services, including the Website, is subject to these Terms and Conditions. The Terms and Conditions will always be available for your review at the "Terms and Conditions" link at the bottom of the transmodus home page. When you click "I Agree" in your online registration, transmodus will create an electronic record of your acceptance of this Agreement, and you will be permitted to continue with the registration process.

Scope and Effect of the Terms and Conditions. transmodus operates the Services, either alone or in conjunction with its affiliates, agents and partners. Transmodus may also ask you to follow additional rules, guidelines or other conditions that govern the use of a particular Service ("Rules and Guidelines") at the time you register for or use that Service. The Terms and Conditions incorporate by reference the Rules and Guidelines of any Service for which you have registered.

Revisions and Relation to Other Agreements or Disclosures. transmodus may revise the Terms and Conditions at any time, and you agree to be bound by future revisions. It is your responsibility to periodically visit the "Terms and Conditions" link at the bottom of the transmodus home page of the Website to review the most current version of the Terms and Conditions. Use of the Website may also be governed by other agreements. transmodus may also offer additional services from time to time that are governed by different or additional terms and conditions. transmodus Services are subject to any disclosures or disclaimers found within the Services.

General Matters. By entering into the Agreement, you have retained transmodus to provide Represented Electronic Check Entries services ("RCK") on a non-exclusive, non-transferable basis. These transactions will be placed through a financial institution ("The ACH Network"), that will act as the Originating Depository Financial Institution ("ODFI"). transmodus will debit funds ("Debit Entry") for the purpose of collecting payments from the accounts of your customers ("Receivers") and/or credit funds ("Credit Entry") for the purpose of paying your accounts receivable in accordance with the terms of this Agreement, the Operating Rules ("Rules") of the National Automated Clearing House Association ("NACHA"), and applicable federal and state regulations ("Regulations") governing ACH transactions. Services also may include providing client wireless or web site access to an internal and external negative/positive database as a means to verify the status of a check before or after accepting that check for payment. These Terms and Conditions do not limit your obligation to comply with the Rules and Guidelines. "Entry" means either a Credit Entry or a Debit Entry.

Client Responsibilities

Representations. You represent and warrant with respect to all Entries originated by transmodus that: (1) each Receiver has authorized you to debit or credit its account; (2) each Entry is for an amount agreed to by the Receiver; and (3) each Entry is in all other respects properly authorized, true, accurate, current and complete. You must indemnify transmodus for any losses, liabilities, costs (including attorneys´ fees) or expenses suffered or incurred as a result of the breach of these representations and warranties.

Identifying Numbers. You understand that transmodus may rely solely on identifying numbers provided by you to determine the bank and account of a Receiver even if the numbers identify a bank or account holder different from the one identified by you by name. You will indemnify transmodus for any losses, liabilities, costs (including attorneys´ fees) or expenses suffered or incurred as a result of an incorrect account or other identification.

Regulatory Compliance. You are responsible for insuring that your policies and procedures meet the requirements of the Rules and Regulations. You are encouraged to consult counsel regarding such compliance.

Specific RCK Requirements. The following information is provided by transmodus for your convenience; however, you are solely responsible for compliance with the Rules and Regulations, even to the extent this information is incorrect or outdated. Currently, the Rules require you to post a sign at the point of sale to indicate that fees may be charged for returned checks. This sign must meet applicable NACHA Rules. You must obtain written pre-authorization by the Receiver at the point of sale and provide Receiver with a copy of such written pre-authorization in order to collect fees under the Rules. You are also required under the Rules to hold returned items for a minimum of seven (7) years. You acknowledge that transmodus reserves the right to charge the Receiver a fee at the maximum rate set by the Receiver’s state law for such returned items unless the operating location in not located in the state in which the Receiver originally accepted the paper instrument from the issuer. If the operating location is not in a state that regulates or defines the fee for returned items, then the fee may be charged in accordance with the laws of the State of California. transmodus will electronically re-present qualified paper items that are returned to you, two (2) times, or the maximum allowed by law, whichever is fewer. Items returned to you after such maximum allowed number of re-presentments will be returned by transmodus, via electronic notice, to you or referred for third party collection.

Draft Alternative for Recovery of State Fee. You have the option of submitting the face value of the check via the ACH Network without written authorization and creating a separate "paper" draft in the amount of the applicable state fee provided that you have posted a clearly marked sign notifying the check writer of this policy. transmodus will re-present the face value first and, only upon payment, will it initiate the deposit of the draft for payment of the associated fee to the check writer account after the passing of a pre-determined number of days as mandated by law.

Wireless and Web-based Pre-verification of Account Status. transmodus maintains an internal database with records related to checks that have been processed for recovery and collection through the transmodus Service. The Service includes a connection to a third party database to verify the status (whether the account is open and funded) of checking accounts within the United States ("Online Verify"). You may access Online Verify as a service when logged into the transmodus Web site. You may also gain text messaging access to the internal and external databases to verify account status via a compatible mobile telephone before accepting payment from a customer ("Chexmessaging"). To use Chexmessaging, you must register a mobile phone number on the Service. You may register any number of compatible mobile phones for your account. These are both billable Services as described in "Fee Based Options" below. transmodus does not warrant the accuracy of such information, the absence of service interruptions or the availability of third party provider services, including but not limited to wireless communication providers and any other company or equipment controlled by third parties, related to Chexmessaging and Online Verify. transmodus will send you an electronic invoice for Chexmessaging and Online Verify one time per week, and transmodus may automatically electronically withdraw all fees for such Services from your account. transmodus may immediately suspend providing Services to you if any payments are returned, and will not be obligated to reactivate your Services unless and until you pay your outstanding balance in full. transmodus may charge you a re-activation fee if your Services are suspended. You are responsible for all charges associated with the use of Online Verify and all phones registered for Chexmessaging under your account. If a wireless device is stolen or misused, it is your responsibility to bring that to transmodus’ attention and any adjustment in your bill may be made in transmodus’s sole discretion.

Automated Secondary Collections Services. You may also use the "Automated Secondary Collections" Service. Automated Secondary Collections uses data you provide to perform an automated collections process via phone calls and letters containing content specified by you. You pay a fee for each call and letter sent on your behalf. A payment coupon attached to the letter directs payment to you or to a collections lockbox. transmodus may charge a processing fee for payments made to the collections lockbox.

Fee Based Services. Additional fees may apply to: (1) Chexmessaging or Online Verify; (2) electronically canceling a check, or issuing a refund after the face value has been paid (but in either case only when the check is not in the re-presentment process), in which case transmodus charges a fee of $2.00 per instance; (3) removing a check from collection, if the check has already been sent to collection; (4) processing any check with a date of 21 days or more after the date on the check, for which a fee will be due for the first re-presentment if the check is returned unpaid, or any check sent for the second and final re-presentment that has a date of 30 days or more from the date on the check; and (5) Automated Secondary Collections.

Notice of Erroneous Unauthorized Transfers. You must promptly and regularly review all Entries and other communications received from transmodus and immediately notify transmodus, by email at notices@transmodus.net of any discrepancies between your records and those provided by transmodus, the ODFI or your bank, or if you discover a transfer not authorized by you. If you fail to notify transmodus of a discrepancy in a statement of account or other report of activity within seven calendar days of the date transmodus provides the statement or report to you, then transmodus will not be responsible for any losses or other costs associated with such transfers.

Bank Initiated Processing. Your bank provides images and data of returned checks to transmodus via secure transport. You hereby authorize transmodus to process such returned checks. In the event that any check image lacks necessary information or is illegible, transmodus will not be obligated to process the check. You are encouraged to reconcile all returned checks against reports available on the Service.

transmodus Responsibilities

Accepting Transactions. transmodus will not be obligated to process any Entries that are not properly formatted. Entries that arrive on or after 3:45pm Eastern Time or 12:45pm Pacific Time will be processed on the next business day. You may not cancel or amend any entry after submission of the entry to the ACH Network by transmodus. Originating Transactions. transmodus will use the information you provide to transmodus to submit Entries to the ACH Network. You acknowledge that transmodus may reject Entries as set forth in the Rules or Regulations. You also understand that Entries or files that exceed the threshold parameters set by the Rules and Regulations may be rejected. You also understand that an Entry may be rejected if the Entry would cause transmodus to violate any Federal Reserve or other regulatory risk control program or any other law or regulation.

Returned Entries. transmodus will email you an electronic notice of returned Entries based on your preference.

Payments. transmodus will credit your account with the full face value of all paid Entries including, in states where permitted, and where received, bank charges and statutory returned items fees, minus a transmodus fee. You may elect not to collect such bank charges or statutory fees based on preferences under your control on the Web site. The transmodus transaction fee is higher for clients that select the "Draft for Fees" option due to higher processing costs, because the Service includes verification of Receiver’s bank account prior to submission of the Entry.

Settlements (for RCK processing) and Finality. transmodus will credit your account via electronic ACH payment (less fees) within Fifteen (15) business days after the date upon which transmodus receives the recovered amounts. If any Entry is reversed by the Receiver’s bank after transmodus credits your account, transmodus may, in its sole discretion, either apply the debit to the next day’s settlement, or debit the your account for the amount of the reversed Entry. You hereby authorize transmodus to debit your account by an amount not to exceed the related credit.

Additional Terms and Conditions

Disclaimer of Liability. TRANSMODUS, HEARTLAND AND THEIR AFFILIATES WILL NOT BE LIABLE TO YOU OR TO THIRD PARTIES, OR HAVE ANY RESPONSIBILITY WHATSOEVER, FOR: (A) ANY LOSSES, OR CLAIMS ARISING OUT OF OR RELATING TO ANY ACTIVITY OVER WHICH TRANSMODUS OR ITS AFFILIATES DO NOT HAVE DIRECT CONTROL, INCLUDING BUT NOT LIMITED TO THE FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, GOVERNMENT RESTRICTIONS, BANKS, THE CLEARING HOUSES THROUGH WHICH ENTRIES MAY BE PASSED OR ORIGINATED BY TRANSMODUS, OR FORCE MAJEURE EVENT (E.G., EARTHQUAKE, FLOOD, SEVERE OR EXTRAORDINARY WEATHER CONDITIONS, NATURAL DISASTERS OR OTHER ACT OF GOD, FIRE, ACTS OF WAR, TERRORIST ATTACKS, INSURRECTION, RIOT, STRIKES, LABOR DISPUTES OR SIMILAR PROBLEMS, ACCIDENT, ACTION OF GOVERNMENT, COMMUNICATIONS, COMPUTER NETWORK, SYSTEM OR POWER FAILURES AND EQUIPMENT OR SOFTWARE MALFUNCTION); OR (B) ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS AND DAMAGES) THAT YOU MAY INCUR IN CONNECTION WITH YOUR USE OF THE WEBSITE, THE SERVICES OR ANY SOFTWARE OR HARDWARE PROVIDED BY TRANSMODUS, HEARTLAND OR ANY RESELLER OF ANY OF THE FOREGOING. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL TRANSMODUS OR HEARTLAND VAR OR ANY OF ITS RESELLERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR LOSS OF PROFITS, LOSS OF GOODWILL, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR GROSS NEGLIGENCE OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, LOST DATA, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY OTHER DAMAGE OR LOSS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Neither transmodus nor any of its affiliates shall have any liability for not effecting a transaction if:

a. The ownership of funds involved in the transaction is in question;

b. Either suspects a breach of its or a bank’s security procedures;

c. Either suspects that your account has been used for illegal or fraudulent purposes;

d. Either reasonably believes that a transaction is prohibited by federal law or regulation.

Notices, Communications, and Electronic Signatures. You must promptly update any changes to your registration information or contact information by using the "UPDATE USER INFO" link on the Web site after login. transmodus may rely on the e-mail address and mail address that you provide it. transmodus will periodically send you information regarding your account. By registering for the Services, you are granting transmodus permission to communicate with you by e-mail and to send such notices. You agree to be bound by any acceptance you transmit by means of the Services you access by computer, including but not limited to any consent you give to receive communications from us solely through electronic transmission.

Use of Services. (a) You will not use any electronic communication feature of the Services for any purpose that is unlawful, tortuous, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening or hateful; (b) You will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights; (c) you will not upload, post, email or otherwise transmit to or via the Website or Service any material that contains viruses or any other computer code, files or programs which might interrupt, limit or interfere with the functionality of any computer software or hardware or telecommunications equipment.

You acknowledge that transmodus uses third party providers to provide Online Verify. You agree that if the service connection is lost between transmodus and such third party providers during a transaction, or for any period of time, that transmodus can process transactions without notification or effect on the transmodus transaction fee.

Confidentiality. You agree to keep confidential all information concerning the Service that comes into your possession and shall not use or divulge such confidential information to any other party except as necessary to permit the activities contemplated under the Terms and Conditions or as required by law.

Governing Law. These Terms and Conditions are governed by, and shall be construed under, the laws of the State of California, without regard for the conflicts of law provisions thereof.

Severability. If any part of the Terms and Conditions is determined by a court of competent jurisdiction to be unlawful or unenforceable, that part will be deemed severed and will not affect the validity and enforceability of any remaining provisions. These Terms and Conditions will be construed by such court to include a term that will be enforceable and preserve, as far as possible, the intentions expressed herein.

Arbitration. Any dispute between the parties shall be submitted to binding arbitration, to be conducted pursuant to the rules of the American Arbitration Association. The arbitration shall be conducted in Ventura County, California unless otherwise agreed between the parties. Any award may include an award for attorney fees and costs.

Agreement Modification and Term. Notice of pending modifications to these Terms and Conditions will be posted on the Website a minimum of 30 days before effective date of any change. You will be deemed to have accepted any such revisions if you use any of the Services after any such modification. transmodus may terminate these Terms and Conditions at any time upon 30 days written notice to you. Any termination will not affect the rights or obligations of either party arising before termination.

Term and Termination. transmodus may terminate your account and cease to provide Services to you if transmodus believes, in its sole discretion, that (a) any information you provide, including but not limited your e-mail address, is no longer current or accurate, or (b) you have failed to comply with any term or condition of the Terms and Conditions.

Security of Data Transmission and Storage. Electronic communications through the Services may not be encrypted. You acknowledge that there is a risk that data, including e-mail, electronic communications and personal data, may be accessed by unauthorized third parties when transmitted between you and transmodus or between you and third parties.

Monitoring by transmodus. transmodus, its affiliates and agents may, but have no obligation to, review or retain your communications ("Communications") with transmodus or any third party. transmodus may monitor your Communications to evaluate the quality of service you receive, your compliance with the Terms and Conditions, the security of the Services, or for other reasons in transmodus’ sole discretion. You agree to permit transmodus to so monitor your Communications. In no event will transmodus be liable for any costs, damages, expenses or any other liabilities incurred by you as a result of such monitoring activities.

Additional Disclaimers. Although transmodus seeks to provide accurate and timely information through the Services, the Services may propagate technical or factual inaccuracies and typographical errors. transmodus reserves the right to change and correct the information provided through the Services at any time, without notice. THE INFORMATION PROVIDED THROUGH THE SERVICES IS PROVIDED "AS IS" AND "AS AVAILABLE." NEITHER TRANSMODUS NOR HEARTLAND WARRANTS THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED IN OR COMMUNICATED THROUGH THE SERVICES; AND NEITHER MAKES ANY GUARANTEE AGAINST THE POSSIBILITY OF DELETION, MIS-DELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA. TRANSMODUS EXPRESSLY DISCLAIMS ALL LIABILITY FOR ERRORS OR OMISSIONS IN, OR THE MISUSE OR MISINTERPRETATION OF, ANY INFORMATION CONTAINED IN OR TRANSMITTED THROUGH THE SERVICES. TRANSMODUS MAY CHANGE INFORMATION CONTAINED IN OR TRANSMITTED THROUGH THE SERVICES AND TRANSMODUS AND SPECIFICALLY DISCLAIMS THAT INFORMATION CONTAINED IN OR TRANSMITTED BY THE SERVICES IS THE LATEST VERSION OF SUCH INFORMATION. YOU ASSUME THE ENTIRE RISK AS TO YOUR USE OF THE SERVICES. FURTHER, TRANSMODUS MAKES NO WARRANTIES REGARDING THE SERVICES OR THE WEBSITE OR ANY SOFTWARE OR HARDWARE PROVIDED TO YOU BY TRANSMODUS OR HEARTLAND PAYMENT SYSTEMS ("HEARTLAND") OR ANY OF THE RESELLERS OF THE SERVICES OR ANY RELATED SOFTWARE OR HARDWARE, WHICH ARE ALL PROVIDED "AS IS." TRANSMODUS AND ITS AFFILIATES AND AGENTS HEREBY DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, OR BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TRANSMODUS DOES NOT WARRANT THAT THE WEBSITE, ANY SERVICE OR ANY SOFTWARE OR HARDWARE ACQUIRED FROM TRANSMODUS, HEARTLAND OR ANY RESELLER OF THE SERVICES OR RELATED SOFTWARE OR HARDWARE WILL OPERATE CONTINUOUSLY OR ERROR-FREE. YOU HEREBY AGREE TO ASSUME ALL RESPONSIBILITY FOR SELECTING SOFTWARE AND HARDWARE TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE OR HARDWARE. WITHOUT LIMITING THE FOREGOING, NEITHER TRANSMODUS NOR HEARTLAND NOR ANY RESELLER MAKES ANY WARRANTY THAT THE SOFTWARE OR HARDWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE OR HARDWARE WILL MEET YOUR REQUIREMENTS.

Copyright. All content included on or in the Website or provided by a Service, such as text, graphics, logos, button icons, images, audio clips and software, is the property of transmodus or its suppliers or licensors and is protected by U.S. and international copyright laws. The reproduction, modification, distribution, transmission, republication, reverse engineering, disassembly, decompilation or display of such content and software is strictly prohibited.

Trademarks. transmodus and other graphics, logos, and service marks are trademarks or registered trademarks or registered service marks of transmodus. You must not use transmodus trademarks in any manner without transmodus’ prior written consent.

Use of This Site. You may not copy, sell, resell or otherwise exploit for any commercial purpose any portion of this Website without the express written permission of transmodus.

Indemnification. You agree to indemnify and hold transmodus and its affiliates, agents, employees, and licensors (including without limitation transmodus’ suppliers and service providers) harmless from any claim, demand, loss, costs or expense, including attorneys´ fees, made by any person arising out of your violation of the Terms and Conditions, state or federal laws or regulations, or any other person’s rights, including but not limited to infringement of any copyright or violation of any publicity or privacy right.

Press Releases. You grant transmodus the right to use your name for the purpose of issuing a press release.

Entire Agreement. These Terms and Conditions constitute the entire agreement between the parties concerning the Services. If any provision in these Terms and Conditions is found to conflict with any provision of any other agreement between you and transmodus, then to the extent such conflict relates to the Services, these Terms and Conditions will prevail. There are no third party beneficiaries to these Terms and Conditions except as specifically provided herein. For purposes of the Terms and Conditions, Heartland and any Reseller of the Services or any related software or hardware.