Payment System Software
  • 1. Taxes
    • 1.1 MagicWebsiteMaker.com™ and its affiliated companies may use Payment System Software ("PSS") provided by third-party(s).
      • (a) Such PSS may be used to accept payments from Clients and Affiliates (hereinafter "PSS Customers") for website subscriptions and to make payments to Affiliates.
      • (b) The prices for such PSS services are exclusive of taxes.
      • (c) Clients and/or Affiliates shall pay (and MagicWebsiteMaker.com™, its affiliated companies and any third-party providers shall have no liability for), any taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with its PSS services, including, without limitation, any federal, provincial, state and local sales, use, goods and services, value-added and personal property taxes on any payments due MagicWebsiteMaker.com™, its affiliated companies and any third-party providers in connection with the PSS services provided hereunder, except for tax based solely on the net income, if any, for MagicWebsiteMaker.com™, its affiliated companies and any third-party providers.
      • (d) MagicWebsiteMaker.com™, its affiliated companies and any third-party providers are each responsible respectively for any tax based on their own net profits, if any, from PSS services.
  • 2. Warranties and Disclaimers
    • 2.1 Quality of Services
      • (a) MagicWebsiteMaker.com™ warrants that it will make good faith efforts to insure that the third-party provider(s)' PSS services will substantially conform to industry standards.
      • (b) For any breach of this warranty or the failure of the third-party provider to perform services (a "Claim"), PSS Customer's sole and exclusive remedy and MagicWebsiteMaker.com™'s entire obligation shall be to require the third-party provider to perform or re-perform the services that are the subject of the Claim. The remedies in this Section 2.1(b) are expressly in lieu of any or all other remedies which may be available to PSS Customer resulting from the furnishing, the failure to furnish or the quality of any service. MagicWebsiteMaker.com™, and its affiliated companies (and any third-party providers), do not warrant the accuracy of any data or information furnished to PSS Customer that is created from PSS Customer Data, PSS Customer Systems or software supplied by PSS Customer unless expressly agreed to in writing.
    • 2.2 Warranty Disclaimer
      • (a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, MAGICWEBSITEMAKER.COM™ AND ITS AFFILIATED COMPANIES (AND ANY THIRD-PARTY PROVIDERS) EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE.
      • (b) MAGICWEBSITEMAKER.COM™ AND ITS AFFILIATED COMPANIES (AND ANY THIRD-PARTY PROVIDERS) DO NOT REPRESENT OR WARRANT THAT THE SERVICES OR THE APPLICATION SERVICE WILL MEET PSS CUSTOMER'S BUSINESS REQUIREMENTS; THE SERVICES OR APPLICATION SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR THAT ALL DEFICIENCIES IN THE SERVICES OR APPLICATION SERVICE CAN BE FOUND OR CORRECTED. FURTHER, THE APPLICATION SERVICE MAY BE INTERRUPTED OR UNAVAILABLE FOR THE PURPOSES OF PERFORMING MAINTENANCE OR UPGRADES.
      • (c) MAGICWEBSITEMAKER.COM™ AND ITS AFFILIATED COMPANIES (AND ANY THIRD-PARTY PROVIDERS) WILL NOT BE RESPONSIBLE FOR ANY OF THE FOLLOWING:
        • (i) SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF PSS CUSTOMER OR ANY AUTHORIZED USER.
        • (ii) INTEROPERABILITY OF SPECIFIC PSS CUSTOMER APPLICATIONS OR EQUIPMENT.
        • (iii) INABILITY OF PSS CUSTOMER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET.
        • (iv) INTERACTION WITH OTHER SERVICE PROVIDERS, NETWORKS, USERS OR INFORMATIONAL OR COMPUTING RESOURCES THROUGH THE INTERNET.
        • (v) SERVICE PROVIDED BY OTHER SERVICE PROVIDERS.
        • (vi) PERFORMANCE IMPAIRMENTS CAUSED ELSEWHERE ON THE INTERNET.
      • (c) PSS CUSTOMER IS RESPONSIBLE FOR TAKING PRECAUTIONARY MEASURES TO PREVENT THE LOSS OR DESTRUCTION OF PSS CUSTOMER DATA AND DATABASES SUCH AS, FOR EXAMPLE, MAKING REGULAR BACKUPS AND VERIFYING THE RESULTS OBTAINED FROM USING THE APPLICATION SERVICE AND SOFTWARE, AND MAGICWEBSITEMAKER.COM™ AND ITS AFFILIATED COMPANIES (AND ANY THIRD-PARTY PROVIDERS) SHALL HAVE NO OBLIGATIONS OR LIABILITY WHATSOEVER WITH RESPECT TO ANY SUCH LOSS OR DESTRUCTION.
    • 2.3 LIMIT OF LIABILITY
      • (a) FOR ANY BREACH OR DEFAULT BY MAGICWEBSITEMAKER.COM™ OF ANY OF THE PROVISIONS OF THIS AGREEMENT, OR WITH RESPECT TO ANY CLAIM ARISING HEREFROM OR RELATED HERETO, MAGICWEBSITEMAKER.COM™'S ENTIRE LIABILITY, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, SHALL IN NO EVENT EXCEED ANY OF THE FOLLOWING: THE FEES PAID TO THE THIRD-PARTY PROVIDER BY PSS CUSTOMER IN THE CALENDAR YEAR IN RESPECT OF WHICH THE CAUSE OF ACTION FIRST AROSE EVEN IF THE CAUSE OF ACTION IS A CONTINUING ONE, OR IN THE AGGREGATE WITH RESPECT TO ALL CLAIMS MADE UNDER OR RELATED TO THIS AGREEMENT, THE AMOUNT PAID BY PSS CUSTOMER.
      • (b) IN NO EVENT WILL MAGICWEBSITEMAKER.COM™ AND ITS AFFILIATED COMPANIES (AND ANY THIRD-PARTY PROVIDERS) BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF COVER, DAMAGES FOR DELAY, PUNITIVE OR EXEMPLARY DAMAGES, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR ANY CLAIM AGAINST PSS CUSTOMER BY ANY OTHER PERSON, EVEN IF THE THIRD-PARTY PROVIDER (AND MAGICWEBSITEMAKER.COM™ AND ITS AFFILIATED COMPANIES) HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES.
      • (c) MAGICWEBSITEMAKER.COM™ AND ITS AFFILIATED COMPANIES (AND ANY THIRD-PARTY PROVIDERS) SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF ANY DATA, EQUIPMENT OR SERVICES, INCLUDING WITHOUT LIMITATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD.
      • (d) MAGICWEBSITEMAKER.COM™ AND ITS AFFILIATED COMPANIES SHALL BE LIABLE TO PSS CUSTOMER AS EXPRESSLY PROVIDED IN THIS AGREEMENT BUT IT (AND ANY THIRD-PARTY PROVIDERS) SHALL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE TO PSS CUSTOMER. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS HEREIN SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION BY PSS CUSTOMER, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN.
      • (e) Neither party or third-party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third party, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under the agreements governing their mutual duties and obligations.
      • (f) Neither party or third-party may bring an action, regardless of form, arising out of or related to this Agreement (other than to recover fees or expenses due to the third-party provider) more than two years after the cause of action has arisen or the date of discovery of such cause, whichever is later.
      • (g) Each party agrees to indemnify and hold the other party, its affiliated companies, employees, officers, directors and shareholders harmless from and against any claims, suits, actions or proceedings (a "claim") brought and damages, costs (including attorney’s fees) or judgments awarded against such party that arise from or in connection with: (i) claims by any person or entity to the extent that such claims are based upon or arise out of the use of the Services; or (ii) breach by such party of this Agreement. The indemnified party shall give the other party prompt written notice of such claims, permit such party to defend and/or settle such claims, and give such party all information and assistance reasonably requested in connection with such claims. Affiliated persons shall not have the right, and each party shall ensure that their respective affiliated persons do not, institute any claim directly against the parties to this Agreement, or any third-party PSS provider.
    • 2.4 Links to Third-Party Sites
      • (a) The third-party provider website(s) and MagicWebsiteMaker.com™ website(s) may contain links to other website(s) ("Linked Sites"). The Linked Sites are not under the control of the third-party provider and the third-party provider (and MagicWebsiteMaker.com™ and its affiliated companies) is not responsible for the contents of any Linked Sites, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. The third-party provider is not responsible for webcasting or any other form of transmission received from any Linked Site.
      • (b) The third-party provider is providing these links to PSS Customer only as a convenience, and the inclusion of any link does not imply endorsement by the third-party provider of the site or any association with its operators.