TERMS AND CONDITIONS

 
We will post the terms and conditions, including any changes, on the Zombaio Website located at https://merchant.zombaio.com/terms.asp and we ask that you periodically review them. Your continued use of the service will constitute acceptance of any changes to the terms and conditions. This agreement becomes effective on the date it is accepted by Zombaio.

1. Definitions
When used in this agreement, the following definitions apply:

a. Chargeback: A charge to the customer that is reversed by the credit card issuer.

b. Client / Merchant: An entry or individual contracting with Zombaio in order to utilize Zombaio's automated financial transaction processing and ancillary related services.

c. Customer: Anyone trying to access a Client's venue with a membership ID issued through Zombaio's password management software.

d. Customer Charges: Amounts to be charged to the customer.

e. Database: Any and all information received from Client and/or Customer which Zombaio keeps in an electronic format for Zombaio's use. This may include at Zombaio's sole discretion a file containing only the Client's information and/or a universal file containing all of Zombaio's Clients' information.

f. PS/MS Payment Service or Membership Service: Those services provided by Zombaio under the terms of this agreement to facilitate customer access to your venue.

g. Membership ID: A unique code assigned to a customer through Zombaio's PS/MSing system that permits access to your restricted venue.

h. New Client: A client of Zombaio's including you and/or your company, if neither you nor your company has ever been a client of Zombaio.

i. Payment Form: The payment mechanism, i.e. credit card to gain access to a Client's venue.

j. Penalty: Any fine, fee, assessment or other charge levied against Zombaio by the card associations, Merchant Bank, any state or federal Regulatory Agency that is in addition to the normal fees charged by those entities.

k. Refund: Any payment from your customer that is reversed by Zombaio or you.

l. Venue: A Client's collection of website pages and content that create the Client's entertainment arena.

m. Website: The website(s) owned by you that utilize Zombaio's PS/MS system and site access management tools.

n. Your: The Client and owner and/or creator of the website and venue.

o. PAN: Primary Account Number = Credit Card number

 

2. Website Pricing Options
The minimum price that you can charge is $2.95 per transaction. The maximum is $99.99 per transaction. Any exceptions must be applied for in writing to Zombaio, and may or may not be accepted based solely on Zombaio's discretion.

3. Services
The services covered by this agreement include Zombaio's PS/MS and site access management tools. In addition, Zombaio provides some services such as client affiliate program software and transaction reporting and tracking. Zombaio reserves the right to stop allowing you to use these added services if in Zombaio's judgment they are contributing to violations of Zombaio's Use Policies (ZUP) or high volumes of chargebacks, refunds, or customer complaints. Zombaio reserves the right to begin charging for these additional services at any time, and Zombaio also reserves the right to offer new services that are not covered by this agreement, and to charge you extra if you choose to use them.

In order to provide the highest level of service to all Zombaio's clients, data provided by customers for venue access will be combined with data from all Zombaio's' client customers. The combined database will be used for risk analysis of your and all other clients' transactions. Ownership of the combined database remains with Zombaio. Credit card information from Zombaio's database will not be provided to you or any other party during this agreement or upon termination of this agreement. However, Zombaio reserves the right to transfer the database in the event of a change in Zombaio's ownership. You are responsible for maintaining a record of all user id information for your own use as well as for backup in the event of a system failure that requires restoration.

Any unauthorized attempt to gain access to Zombaio's database or systems by you, or anyone directly or indirectly associated or related to you, however remotely, will constitute a material breach of this agreement. In the event of any such attempt to gain access, Zombaio may immediately terminate this agreement, and you will immediately return to Zombaio all copies of any information obtained by this access.

4. Fees
Zombaio shall charge, and Client agrees to pay, the fees set forth in "Zombaio Service Fees" attached hereto for the services provided by Zombaio. Zombaio shall have the right to change the fees stated herein upon providing notice to client at least 10 days prior to the effective date of such changes. Zombaio will deduct this fee from your funds before payment to you.

Zombaio charges 10 or $12.50 per chargeback. If Zombaio is penalized by its acquiring bank, a card association, or any other acquiring related party for chargebacks or refunds from Zombaio's processing transactions for your website(s), Zombaio may at any time and at its discretion charge you $100 per chargeback or the actual amount of the penalty per item, or whichever is higher. Zombaio's waiver of this paragraph for any period of time does not constitute forfeiture of Zombaio's right to impose the application of the penalties retroactively or for that period of time. You acknowledge that the card associations and regulatory agencies may apply chargebacks and fines retroactively and that Zombaio must retain that right as well. In the event a flat amount penalty is assessed against Zombaio as opposed to a per transaction penalty, Zombaio may at its sole discretion prorate the flat amount among those clients that Zombaio at its sole discretion deems to have been the cause of the penalty.

5. Payment
In order to receive payouts from your account a signed copy of this contract must be received by Zombaio. You may fax the signed agreement to +1-866-520-8694. You agree by clicking to accept these Terms & Conditions at the end of this contract that Zombaio may withhold payments on new accounts until the signed contract is accepted and verified by Zombaio.

Zombaio collects all billing revenue on your behalf and disburses these funds, minus our fees, to you daily but staggered 20 days. This means that you have to process for three weeks before you get your first payout, then it will come to you daily. You will always have a deposited balance for 20 days until the account is closed. Processing charges, chargebacks and refunds are deducted from this reserve.

Zombaio offers two options for payment delivery; Wire or Check.

While Zombaio will make reasonable effort to make payment on daily basis, if there are unusual circumstances such as delays in Zombaio receiving payment from banks, holidays, or system failures, Zombaio will make payment as soon as possible.

The net amount of payment will be the amount of customer charges minus Zombaio fees  and refunds not processed in previous payments, chargebacks, payment delivery fees, taxes, penalties, and any additional security deposit amounts.

In order to resolve complaints and disputes, you agree that Zombaio may issue refunds without your knowledge or approval in any situation Zombaio thinks is appropriate. Zombaio may also include the customer in its database of blocked accounts if there is an indication of fraud or inappropriate use of the customer's information by the customer or anyone else. Example: Transactions made with the same PAN as in a cardholder dispute, but not yet disputed.

6. Cancellation
You and Zombaio can cancel this agreement at any time with 10 days written notice. Email and telephone are not acceptable forms of notice. Zombaio also has the right to cancel this agreement without notice, if you violate the terms of this agreement, or Zombaio's Use Policies (ZUP). Zombaio's ZUP is available on its website. Zombaio will change its ZUP from time to time and it is your responsibility to check it often to make sure you are in compliance. In cases of minor violations, Zombaio will give you an opportunity to become compliant, but Zombaio can cancel this agreement or take any other action Zombaio feels is appropriate if you do not comply. Serious violations by you or any of your referrers or upon notification by any of the card associations or regulatory agencies to discontinue accepting transactions will result in Zombaio canceling this agreement immediately.

Zombaio may terminate either (a) this Agreement, (b) any service or (c) both, immediately, if you are the subject of a bankruptcy order, become insolvent, make any arrangement or composition with or assignment for the benefit of creditors, go into voluntary or compulsory liquidation, have a receiver or administrator appointed over your assets, or if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs to you.

Upon cancellation/termination of your account, Zombaio will hold all funds due to you for a minimum of nine months as reserve for possible refunds and chargebacks.

7. Your Obligations
You agree to use Zombaio's services for the sale of legal content and services from your website. Without Zombaio's prior written approval, you will not use Zombaio's services for the sale of property or items that cannot be downloaded from your venue by your customer. You also agree to abide by the Terms and Conditions of this agreement and Zombaio's Use Policies (ZUP). Zombaio reserves the right to manually or electronically review your website(s) to ensure there are no violations of the Terms and Condition or the ZUP.

On Zombaio's signup page for your venue, Zombaio will plainly show the customer the price(s) you are charging and all terms and conditions of the purchase. If this agreement is terminated by either you or Zombaio for any reason, you must leave the ability for customers to cancel their purchases through Zombaio's services until there are no more active recurring memberships. If you do not do this, or if in Zombaio's judgment there will be excessive chargebacks, Zombaio will immediately issue refunds to your customers, and hold all payments and reserves until such time as Zombaio is convinced that there will be no further refunds and/or chargebacks. The minimum time that Zombaio will withhold payment is nine months.

You will always maintain the ability to respond to your customer's technical inquiries and try to resolve issues amicably. If, in Zombaio's opinion customer complaints and/or chargebacks are excessive, Zombaio may choose to cancel this agreement and you agree to immediately reimburse to Zombaio all its expenses related to chargebacks and refunds.

You may change the access prices and subscription options for your venue whenever you want. The correctness, functionality, and accuracy of these changes are your responsibility regardless of who makes them.

Zombaio's employees have entered into an agreement to protect Zombaio's confidential and trade secret information even after their employment. You agree that it would be difficult for Zombaio to enforce this agreement if you were to hire an employee or a former employee and it would be difficult for the employee to abide by the terms of the agreement. You therefore agree that you will not hire or enter into a contract of any kind with a current or former Zombaio/GCB  employee for a period of 24 months following the effective date of that employee's last date of employment with GCB/Zombaio or any company affiliated with Zombaio or GCB without Zombaio's written prior approval.

8. Authorization
By signing this agreement you are stating that you are the owner and operator of the venue(s), are of legal age in the state or country where your business is located to enter in to this agreement, and have obtained all the necessary licenses and certificates required to perform your obligations. You will follow all laws and legal regulations that relate to your business regardless of where those laws and regulations originate, and will comply with any laws and regulations that may apply in the future.

9. Privacy Policy
You understand that Zombaio's Privacy Policy. in part reads, "By using Zombaio's services, you agree that we may release information obtained in the course of your use of Zombaio's services when it is believed, in Zombaio's sole and absolute discretion, that the release is appropriate or otherwise necessary to comply with the law, enforce our Agreement, and/or protect the contract and other rights of our Clients.

10. Taxes
Zombaio and you both agree to pay any and all taxes that are imposed on Zombaio or your respective business. If Zombaio is required to pay taxes for you, you will immediately reimburse Zombaio for those taxes and any fines, penalties and interest, or you agree that Zombaio may deduct them from payments to you.

11. Limitations of Liability
ZOMBAIO WILL UTILIZE ITS BEST EFFORTS TO MAINTAIN ACCEPTABLE PERFORMANCE OF THE SERVICE, BUT ZOMBAIO MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Zombaio cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. Zombaio will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted, received, or stored on its system. Zombaio will not be liable to you or any of your customers for any claims or damages which may be suffered by you or your customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, unauthorized access to your website as a result of hackers or password trading, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-delivery, or service interruptions whether or not caused by Zombaio's fault or negligence. Zombaio will not be responsible for your venue not being accessible on the Internet due to circumstances not under Zombaio's direct control such as individual Internet user's own equipment capabilities, limitations, other Internet service provider limitations and/or browser software limitations.

Zombaio may discontinue any service, or may require fulfillment of conditions Zombaio may choose to impose as a prerequisite for continuing any service upon thirty (30) days notice to you. However, Zombaio may discontinue service immediately for fraud committed by you or your employees, illegal activity, or violations of its Use Policies (ZUP) and/or its other policies.

Zombaio's liability to you and any end user of the service or any other of its services is limited to the amount paid to and received by Zombaio for service not accepted. In no event will Zombaio be liable to you, or any end user or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if Zombaio has been advised of the possibility of such damage.

You agree that Zombaio is an Payment Service Provider ("PSP") under the Digital Millennium Copyright Act (DMCA) and understand that Zombaio is required under the DMCA to have you remove any material that another party claims is infringing once Zombaio has received, in its sole judgment, a proper notification. You also agree that if you do not comply with a request from Zombaio to remove material under the DMCA or for any other reason, Zombaio may at its discretion block access to new member signups and renewals and hold all funds until such time as Zombaio is certain that the material is removed. Zombaio may, at its sole discretion, determine who is an "infringer" and may terminate this agreement without notice to you if Zombaio believes you to be a repeat infringer.

12. Indemnification
You are solely responsible for your venue, any associated website and all venue/website content, for your advertising and promotion, and that of anyone referring others to your venue. You are also responsible for insuring that you are the rightful owner or licensee for any copyrighted material, trademarks, or items that appear on your venue.

You will take all necessary measures to preclude Zombaio from being made a party to any lawsuit or claim regarding the service provided to or by you, or any end user. You hereby agree to indemnify Zombaio and hold Zombaio harmless from any and all claims of whatever nature brought by any anyone against Zombaio in excess of the remedy set forth herein.

You hereby agree to reimburse Zombaio for any and all expenses associated with Zombaio being involved with any civil, criminal, regulatory or investigatory actions brought by you or against you by anyone, including expenses associated with providing information that Zombaio, in its sole discretion, believes it legally must provide or has been authorized by you to provide. You also understand and agree that Zombaio will deduct those expenses from monies due to you and you agree to reimburse Zombaio for any expense that exceeds what Zombaio is able to deduct from your account.

13. Relationship of Parties
Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section. Neither party is the agent of the other and the COMPANY expressly disclaims responsibility for any conduct by you in violation of our terms of agreement.

You hereby agree to reimburse Zombaio for any and all expenses associated with Zombaio being involved with any civil, criminal, regulatory or investigatory actions brought by you or against you by anyone, including expenses associated with providing information that Zombaio, in its sole discretion, believes it legally must provide or has been authorized by you to provide. You also understand and agree that Zombaio will deduct those expenses from monies due to you and you agree to reimburse Zombaio for any expense that exceeds what Zombaio is able to deduct from your account.

14. Term
This agreement will continue until terminated by either party under the provisions above. Zombaio may terminate this agreement immediately and without notice if you violate the terms of this agreement, its Use Policies (ZUP), its policies, or the law. Zombaio may, at its sole discretion, suspend or cancel services for your account if it stays inactive for any consecutive ninety (90) day periods. Reinstatement of your account, after suspension or cancellation, will require Zombaio approval.

15. Confidentiality
Unless required by law, you will treat Zombaio's intellectual property as confidential and proprietary, and not disclose them to anyone without Zombaio's prior written consent. You may not use Zombaio's trademarks and advertising without Zombaio's permission, and then only in ways agreed to by you and Zombaio. Upon termination of this agreement, you will promptly return any of Zombaio's property in your possession.

16. Invalid or Unenforceable Provisions
If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. You and Zombaio agree to renegotiate in good faith any term held invalid and to be bound by any mutually agreed to substitute provision.

17. Disputes
Zombaio will attempt to resolve all disputes arising out of this Agreement in a spirit of cooperation without formal proceedings. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices and other than injunctive relief) will be subject to arbitration upon written demand of either party. Except for disputes resulting from unpaid Zombaio invoices, the parties agree to arbitrate this matter prior to any state, federal, or international court action. The arbitration will take place in London, UK before a single arbitrator under the auspices of the Royal Arbitration Association's ("RAA") Commercial Arbitration Rules currently in effect at that time.

The arbitrator will not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The arbitrator will render a written opinion setting forth the basis on which he or she arrived at the decision regarding each issue submitted to arbitration. The decision of each issue submitted to arbitration will be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrator may be entered in any court having jurisdiction thereof.

Should any legal action permissible under this Agreement be instituted to enforce the terms and conditions of this Agreement, in particular the right to collect money due on unpaid invoices, the prevailing party will be entitled to recover reasonable attorneys' fees and expenses incurred at both the trial and appellate levels.

Parties may modify the dispute clause only through a stipulation signed by both parties.

18. Entire Agreement; Modifications
This Agreement sets forth the entire Agreement and understanding between the parties and merges all prior discussion between them. Zombaio reserves the right to modify this agreement at any time. Utilization of the service by you and/or your customers following the effective date of any change or modification of this Agreement on Zombaio's website will constitute acceptance by you of such change(s). Otherwise, this Agreement may not be modified except by the written consent of both parties.

For your own protection, you understand and agree that Zombaio will only accept requested changes and modifications to this agreement that are in writing and signed by the individual(s) signing this agreement.

19. Change of Ownership and Multiple Signatories
In the event of changes in ownership of your company or, venue(s) covered by this agreement, you and you only must notify Zombaio in writing of the change. Zombaio will then require the new owner to execute a new agreement with Zombaio. In the event you want to change the information in this agreement regarding the payments to you, you and only you must notify Zombaio in writing.

Zombaio strongly discourages clients from having more than one person sign this agreement. If you choose to have more than one person sign this agreement, please be advised that, when notified of a dispute, Zombaio will not make any changes to the account or disburse or refund any monies until Zombaio receives either written stipulation signed by all signatories or a court order.

20. Addendums and Schedules
All of the required addendums must be completed, signed and forwarded to Zombaio along with the contract prior to Zombaio issuing your first payment. 21. Cascading Terms
The given transaction fee requires Zombaio to have a good rate of successful transactions. If the merchant is using several credit card processors in lead (the first processors declines is sent to the second, and so on) (aka. billing cascade) Zombaio requires being the first processor in your cascade to be able to maintain your given transaction fee.

Failure to comply with this term will lead to a processing fee at +5% without notice. The fee will be restored once Zombaio is first in the cascade again. Several failures may lead to account termination.

Join form set-ups where the cardholder/member can choose which processor to use is not affected by this clause.

22. Reserve
Client expressly understands and acknowledges that Service Provider shall retain funds withheld for the Reserve Balance up to and until later of (I) the date that all Required Reserves are released and repaid to Service Provider by those Merchant Banks and/or Check Processors through which Client's transactions are processed by Service Provider; or (II) eighteen (18) months after the last Customer Charges are processed by Service Provider under this Agreement. Thereafter, Service Provider shall repay to Client the corresponding Reserve Balance, less any fees or expenses then due to Service Provider or any amounts previously deducted from the Reserve Balance.

Notwithstanding anything to the contrary in this Agreement, it is expressly acknowledged and understood that Service Provider may at any time, upon seven (7) days written notice to Client, amend or modify the terms, provisions and conditions in this, that no such notice shall be required in connection with amendments or modifications that (I) increase the Reserve Percentage in an amount that Service Provider reasonably deems appropriate to create sufficient additional reserves for that purpose; and/or (II) suspend any repayment of the Reserve Balance under this Agreement until Service Provider reasonably determines that the total amount of the Reserve Balance is sufficient to ensure payment of all expenses due or that might become due Service Provider hereunder.