This PayAnywhere User Agreement (“Agreement”) is a legal agreement between you (“you”, “your”) and PayAnywhere (“PA”) governing your use of PA’s payment processing services and PA POS System, as defined below (together, the “Services”).
1. Relationship:PA is what is called a “Payment Service Provider” or “Payment Facilitator”. As such, PA, and not you, will serve as the merchant of record with MasterCard International, Inc. Visa International, Discover Network, PayPal, American Express and other networks or associations (the “Card Associations”) with regard to purchases (each, a “Transaction”) by your customers in which credit or debit cards bearing the service mark of VISA, MasterCard, Discover Network, PayPal, American Express or another specified network or association (each, a “Card”) are presented for payment. PA is not a bank, it does not offer banking services as defined by the United States Department of the Treasury, and it is not in the business of providing money transmission or other money service business services as defined by the U.S. Department of the Treasury. PA serves as your agent in completing Transactions with your customers. In furtherance of this relationship, you authorize PA (i) to submit Transactions to, and receive settlement from, the Card Associations and the applicable payment processors and bank sponsors through which PA processes your Transactions (collectively, “PA Providers”), (ii) to hold, receive, and disburse funds on your behalf and/or to direct PA Providers to hold, receive, and disburse funds on your behalf, and (iii) to generate a paper draft or an electronic funds transfer to process each Transaction that you authorize. Your authorizations will remain in full force and effect until your PA Account is closed or terminated. As part of your agreement to use PA, you attest that you are a Citizen of the United States, or other U.S. Person. You are considered a U.S. Person if you are a legal resident of the United States, a partnership, corporation, company, estate (other than a foreign estate), domestic trust, or association created or organized in the United States or under the laws of the United States.
2. Payment Transactions/Acceptance of Cards: You have been given a unique PA Account (the “PA Account”) through which your Transactions will be recorded by Your PA Account will permit you to accept and submit Transactions on a compatible mobile device. Your use of the Services will be subject to, and you agree to be bound by, all of the rules and requirements of the PA Providers, as applicable to your activities under this Agreement, and as modified from time to time.
Without limitation, you agree to abide by the following terms and conditions:
a. You will accept all Cards in accordance with the rules adopted by the applicable Card Associations.
b. You will only submit valid and completed Transactions produced as a direct result of bona fide sales of goods or services made to a customer by you, and such Transactions will accurately describe the goods or services sold or delivered. All such Transactions shall be free of any liens, claims, and encumbrances other than ordinary sales taxes. You will not use the Services for any fraudulent or illegal undertaking. No Transaction will represent a sale to any principal, partner, proprietor, or owner of you, if you are an entity. There are some business types which are prohibited from using PA. By creating an account with PA you agree that you will not be accepting payments for or in connection with the following prohibited businesses:
(1) Any Illegal activities or Goods, (includes marijuana services/paraphernalia) (2) Adult Sexually Oriented Material, (3) Age Sensitive Products sold direct to consumer, (4) Business or Investment Opportunities / Multi-level marketing, (5) Business physically located outside the U.S., (6) Dating / matchmaking, (7) Deceptive/Negative marketing practices, (8) Any division or agent of a foreign government, (9) Essay Mills/Paper Mills (ghost writing), (10) Financed Payments via Card, (11) Gambling or Sports Forecasting, (12) Internet/Telecom Services, (13) Magazine Subscriptions, (14) Money services, (15) Online auctions, (16) Products or Services with Unreasonable Guarantees or Claims, (17) Travel Services (18) Government Grants or Will-Writing kits, (19) Firearms.
PA reserves the right to modify, alter, or change this list at its sole discretion at any time with or without notice.
c. You will maintain a fair policy for the exchange, refund and return of goods sold and the adjustment of services rendered. You will post that policy at or before the Transaction occurs and in accordance with the rules adopted by the applicable Card Associations, and such policy must comply with the rules adopted by the applicable Card Associations. You will not give cash refunds to a customer in connection with a Transaction, unless required by law, and not accept cash or any other item of value for preparing a Transaction refund.
d. You will not bill or collect from any customer for any purchase or payment on a Card unless a chargeback has been exercised, you have fully paid for that chargeback, and you otherwise have the right to do so.
e. You will ensure compliance with rules adopted by any Card Associations relating to the privacy and security of cardholder and card transaction data, including without limitation the Payment Application Data Security Standard (“PA DSS”) and the Payment Card Industry Data Security Standard (“PCI DSS”), as they may be amended from time to time;
f. You will maintain fraud and chargebacks below thresholds set by the Card Associations;
g. You will accept, without discrimination, all valid Cards properly presented by customers for payment for goods or services. With respect to VISA and MasterCard products, you may elect to accept credit cards or debit/prepaid cards or both, as reflected on the merchant application you completed with PA (the “PA Application”), and you must display appropriate signage to display the same. You agree to pay for any additional fees incurred as a result of your subsequent acceptance of Transactions with any VISA or MasterCard product that you have elected not to accept.
h. You may establish a minimum Transaction size for accepting Cards so long as such amount does not exceed $10, or such other amount established by law, and such minimum Transaction size requirement does not discriminate between Card issuers or between Card Associations. You may not impose a maximum Transaction size on Transactions, or add a fee to a Transaction.
i. You may offer discounts or in-kind incentives for payment by the use of cash, checks or Cards, provided that the terms of the discount or in-kind incentives do not differentiate on the basis of the Card issuer or Card Association.
j. You will not accept a Card as payment (other than for a preauthorized mail order, telephone order, or other sale), if the customer seeking to use the Card does not present the Card to permit you to examine it and obtain an imprint or otherwise use the physical Card to complete the to complete the transaction.
k. You will comply with all requirements and restrictions regarding the display of Card Association tradenames and marks, and will implement any changes to your website or otherwise that PA deems necessary or appropriate to ensure that you remain in compliance with the rules adopted by the Card Associations governing the use of Card Association tradenames and marks. You acknowledge and agree that the Card Associations are the sole and exclusive owners of their respective trade names and marks, and that you will not contest the ownership of such tradenames and marks for any reason. You also acknowledge and agree that the Card Associations may at any time, immediately and without advance notice, prohibit you from using any of its or their trade names or marks for any reason.
Any inconsistency between the rules adopted by any Card Association and this Agreement shall be resolved in favor of the rules adopted by such Card Association. You may use the Services only to the extent that you obey all laws, rules, and regulations applicable to your use of the Services. You may only use the Services in the fifty states of the United States of America and the District of Columbia. You may not act as a payment intermediary, aggregator or service bureau or otherwise resell the Services on behalf of any third party. This means that you may not use the Services to handle, process or transmit funds for any third party. You also may not use the Services to process cash advances. PA reserves the right to reject any Transaction that you submit for settlement.
3. PA Fees: You agree to pay the applicable fees listed on the PA Application (“Fees”) whenever you use the Services. You agree that if the account is not used to process a transaction for twelve (12) months, it will be considered inactive and will be subject to an inactivity fee of $3.99 beginning the 13th month of inactivity, and each month following, until processing resumes. If processing resumed on your account, the inactivity fee will no longer be charged until the next twelve (12) month period of inactivity. Subject to the terms of this Agreement, PA reserves the right to change Fees. If PA changes its Fees, it will give you thirty (30) days’ notice of any change. You will not be permitted to continue to use the Services unless you consent to the changes in Fees. To withdraw your consent, you will need to close your PA Account.
4. Next Day Funding: PA will deposit, or will direct the PA Providers to deposit, to your PA Account the amounts actually received by PA or such PA Providers for Transactions submitted through PA (less any applicable Fees). Once your bank account information is verified, PA will automatically deposit or will direct the PA Providers to deposit, your money in your designated bank account. A deposit to your bank account in connection with a Transaction will normally occur one (1) business day after the completion of that Transaction. However, Transactions may not be deemed complete in PA’s discretion until PA has or the PA Providers have, received or sent the funds and/or when PA or the designated financial institutions have accepted the Transaction or funds. PA may, in its discretion, provisionally credit, or cause the PA Providers to provisionally credit, amounts to your PA Account, subject to receipt of final payment by PA or the PA Providers in respect of a Transaction.
5. Suspension/Reserve/Recovery/Pooling of Funds: PA may temporarily suspend or delay payments to you or withhold or reserve your funds in order to secure your performance of your obligations to PA. This action may arise for any reason, including the occurrence or suspected occurrence of Transaction chargebacks or refunds, for which you are responsible. A chargeback will occur if the Transaction (a) is disputed, (b) is reversed for any reason, (c) was not authorized or PA has any reason to believe that the Transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of this Agreement. The amounts suspended, delayed or reserved shall be initially determined, and may be increased or decreased, in PA’s reasonable discretion as necessary to cover potential financial exposure on the part of PA. You grant PA a security interest in and lien on any and all funds held in any such reserve, and also authorize PA to make any withdrawals or debits from such reserve, without prior notice to you, to collect amounts that you owe PA. This security interest survives for as long as PA holds your funds in reserve.
PA may recover, recoup, set off or deduct the amount of any chargeback and any associated Fees, fines, or penalties listed in the PA Application or assessed by the PA Providers from your PA Account (including without limitation any reserve), any proceeds due to you, your bank account, or other payment instrument registered with PA. In furtherance of this right, you authorize PA to debit your bank and/or to initiate reversal or adjustment entries with respect to your bank account. If PA is unable to recover funds for which you are liable, you will pay PA the outstanding amount immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of PA in connection with the collection of all such amounts, along with interest on the unpaid amount calculated at the highest legal rate.
You understand that your funds may be commingled and held with other PA merchant funds in one or more pooled accounts at one or more FDIC-insured banks by PA for the benefit of you and other PA merchants (each a “Pooled Account”). PA has sole discretion over the establishment and maintenance of any Pooled Account. You will not receive interest or any other earnings on any funds that PA handles for you. As consideration for using the services provided by PA, you irrevocably assign to PA all rights and legal interests to any interest and/or other earnings that may accrue or are attributable to its holding of your funds in a Pooled Account or reserve.
6. Transaction Errors: You are responsible for monitoring your Transactions and ensuring that PA’s payments to you are correct. You must notify PA of any errors in payments made to you within sixty (60) days of the error first appearing on your electronic transaction history. Failure to notify PA of such an error will be deemed a waiver of any right to amounts owed to you.
7. Information:You authorize PA to disclose all Transaction data and other information about you as required by the PA Providers, and their affiliates, agents, subcontractors and employees, in order to process your Transactions. You also authorize each of the foregoing parties to use such information to perform their responsibilities in connection with the programs offered by them and for such other purposes as they may reasonably deem necessary, including such purposes as are described in rules adopted by any Card Association. PA may request additional information and documentation from you at any time. PA may also ask for permission to inspect your business location. You agree to advise PA immediately of any change in the ownership or nature of your business, or in your or your business’ financial condition, location or name, or in your approved monthly Transaction volume, average ticket or description of goods sold and services provided. You authorize PA, at any time during which this Agreement remains in effect, to make any credit inquiries of you or your business, including but not limited to requesting reports from third party credit reporting bureaus.
8. Conversion to Direct Merchant:You acknowledge that you will be converted from being a merchant of PA to a direct card acceptance relationship with the applicable Card Association or PA Provider, as applicable, under the following circumstances:
a. With regard to American Express, if and when you become what American Express calls a “High CV Merchant”. Upon such conversion, (i) you will be bound by American Express’ then-current card acceptance agreement, (ii) American Express will set the discount and other fees payable by you for its Card acceptance, and (iii) you will have the option of continuing to use PA to provide Services to you subject to the terms and conditions contained in this Agreement. A High CV Merchant is one that has greater than $1,000,000 in charge volume in a rolling 12 month period, or greater than $100,000 in charge volume in any three consecutive months.
b. With regard to Visa, MasterCard, Discover, and/or PayPal if and when you exceed $100,000 in charge volume for any of the applicable Card Associations in a rolling 12 month period. Upon such conversion, and in the event that you wish to continue to accept and submit Visa, MasterCard, Discover, and PayPal Transactions, you will be bound by the terms of the card acceptance agreement attached hereto as Exhibit A (as amended in accordance with its terms, the “Direct Agreement”) at the Fees, or at such discount and other fees to be determined at the time. Upon the conversion, if you continue to accept the applicable Card Association Transactions, you agree that (i) you will automatically be deemed to have accepted the Direct Agreement, without any further notice, consent or action by PA, the PA Providers or you, (ii) the PA Application will be incorporated into the Direct Agreement, (iii) the terms of the Direct Agreement will thereafter be independently enforceable against you by the PA Providers, and (iv) the Direct Agreement will replace this Agreement.
9. Representations and Warranties: You confirm that: (i) you are at least 18 years of age; (ii) you are either a legal resident of the United States, a United States citizen, or a business entity authorized to conduct business by the state in which it operates; (iii) you are eligible to register for and use the Services; (iv) the name identified by you when registering for the Services is your legal name or business name under which you sell goods and services; (v) all information contained in your completed PA Application is true and correct in all respects; and (vi) this Agreement is your valid and binding obligation, and does not violate any provisions of law, or conflict with any other obligations to which you are subject.
10. No Assignment: You may not assign or transfer to any third party this Agreement or any payments due to you in connection with your Transactions.
11. Third Party Rights: You hereby authorize the PA Providers, and their affiliates, agents, subcontractors and employees, to enforce the terms of this Agreement as against you, without establishing any obligation on their part to do so. You also authorize the PA Providers to use your name, address, and website address in any media from time to time. You also acknowledge and agree that the Card Associations have the right to enforce any provisions of their rules against you, and to prohibit you from engaging in any conduct that they deem could injure or could create a risk of injury to them, and that you will not take any action that could interfere with or prevent the exercise of such rights by the Card Associations.
12. PA Provider Agreements: PA is a party to certain other agreements with the PA Providers. You acknowledge that you are not a beneficiary under any of those agreements. You also agree to abide by all limitations of liability contained in those agreements with respect to such PA Providers.
13. Wireless Carriers: Mobile devices used in connection with the Services may not be modified contrary to the manufacturer’s software or hardware guidelines, including but not limited to disabling hardware or software controls. You acknowledge that the use of a modified device to use the Services is expressly prohibited. PA does not warrant that the Services will be compatible with your mobile device or third party carrier. Your use of the Services may be subject to the terms of your agreements with your mobile device manufacturer and your carrier.
15. Disclosures and Notices: You confirm that you have become a party to, and become bound by, this Agreement by completing the PA Application and accepting it electronically over the Internet or through your wireless carrier. This is done by clicking or entering “I Agree” where requested on an electronic version of the PA Application. By providing this consent, you acknowledge that you have received and reviewed all applicable pages, terms and conditions of this Agreement and the Direct Agreement.
16. Termination: PA or you may terminate this Agreement for any or no reason, and at any time. In order to terminate this Agreement, you must close your PA Account, at which time all pending Transactions will be cancelled. This Agreement will immediately and automatically terminate to the extent any PA Provider deregisters PA. Any funds held by PA for you at the time of closure or termination, less any applicable Fees, will be paid out to you, subject to PA’s rights to suspend, delay or reserve funds. All provisions of this Agreement necessary to accomplish or enforce this Agreement shall survive the termination of this Agreement. In the event of any termination or cancellation of your access to the PA POS System you must return the PA POS System in good and working condition within ten (10) days after such termination or cancellation. You agree to be responsible for any damage to the PA POS System as a result of misuse or neglect.
17. PA Ownership/License: You agree that the “PayAnywhere” name and mark are owned by PA, and that PA owns the title, copyright and all other worldwide intellectual property rights associated therewith. You also agree that PA owns and has all right, title and interest in and to any point of sale system, including associated devices, software, components, content, information, data, media, materials, and “online” or electronic documentation or files, delivered to you in connection with the Services, which enables you to utilize a compatible tablet computer or smartphone to accept credit card and/or debit card payments on purchases by customers, including but not limited to all intellectual property rights associated with such system (collectively, the “PA POS System”). The Services are protected by the copyright laws of the United States, international treaties and conventions, and other laws. Except as otherwise expressly stated below, you have no intellectual property rights in the Services, and PA reserves all rights not expressly granted to you under this Agreement.
PA grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Services in accordance with this Agreement. 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 the PA POS System or any other PA system using any manual process or robot, spider, scraper, or other automated means unless expressly authorized by PA; (ii) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material or information from PA; (iii) permit any third party to use and benefit from the Services; (iv) transfer any rights granted to you under this Agreement; (v) work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services, 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 Services, prevent access to or use of the Services by PA’s other users, or impose an unreasonable or disproportionately large load on PA’s infrastructure; or (vii) otherwise use the Services except as expressly allowed under this Agreement. You may not export the Services directly or indirectly, and you acknowledge that the Services may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII).
You must comply with all laws when using the Services, as well as all applicable copyright, trademark or other legal notices or restrictions. With regard to the PA POS System, you may only install, access and use it on a compatible device that (i) has not been modified contrary to the manufacturer’s guidelines, and (ii) runs a validly licensed copy of the operating system for which the PA POS System was designed. Devices with disabled hardware and software controls are not compatible devices. You acknowledge that the use of any such modified device in connection with the PA POS System is expressly prohibited.
18. Support Services/Updates/Modifications/Discontinuance: PA may provide you with support services related to the PA POS System. Any supplemental software code or hardware provided to you as part of such support services will be considered part of the PA POS System and subject to this Agreement. If you are accessing the PA POS System via a distribution channel (hereinafter, a “Distribution Channel”), such as Google play, the Apple App Store or the Android Marketplace, you acknowledge that the Distribution Channel is not a party to this Agreement, that PA is solely responsible for the PA POS System, and that the Distribution Channel will not provide you with support or maintenance of the PA POS System.
PA may in its sole discretion from time to time update or modify, or at any time discontinue, temporarily or permanently, your access to or use of the PA POS System, or any part thereof, without notice. PA may also impose certain limits on certain features or restrict your access to part or all of the PA POS System without notice. You acknowledge and agree that even if a copy of the PA POS System continues to reside on your device after such action, the PA POS System may not work as it did prior to such action. PA shall have no liability to you or any third party for any of the foregoing actions.
19. Content and Data: In using the Services, you will be delivering or uploading data to PA-owned or third party servers (hereinafter referred to as “Account Content”). You will not upload any Account Content unless you have created the data yourself, or you have permission from the owner thereof to do so. You are solely responsible for the export of your Account Content to your local computer or device to the extent that it may reside within the PA POS System. Your Account Content maintained within the PA POS System may be deleted by PA at any time on or after the ninetieth (90th) day following termination of your use of the PA POS System.
You grant PA a worldwide, non-exclusive, royalty-free, fully-paid, transferable, and sub-licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display any your Account Content throughout the world in any media in order to provide and promote the Services, the PA POS System and PA’s business. You will retain your rights in Account Content, subject to the rights granted to PA herein.
You agree not to upload Account Content or otherwise post, transmit, distribute, or disseminate through the PA POS System any material or data that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity, privacy, copyright or trademark; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with PA’s or its partners’ products and services, as determined by PA in its sole discretion; or (f) in PA’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the PA POS System, or which may expose PA, its respective business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors, agents and/or customers to harm or liability of any nature.
Although PA has no obligation to screen, edit, or monitor any Account Content, PA reserves the right, and has sole discretion, to remove, screen, edit, or disable any Account Content at any time and for any reason without notice. PA assumes no responsibility or liability for any Account Content, including any loss or damage to any Account Content.
PA may share Account Content with third parties, and PA is not responsible for the use or treatment of such data by such third parties. If you instruct PA to share Account Content with third parties, you agree to indemnify, defend, protect and hold PA, and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors, agents and affiliates (hereinafter referred to collectively as the “PA Parties”) harmless from and against any and all third party damages, losses, claims and expenses, including but not limited to governmental penalties and reasonable attorneys' fees, which may be asserted against or incurred by PA Parties or any affiliate arising out of or resulting from the sharing, use or ownership of such data.
You understand and acknowledge that PA is not responsible for the delivery of or access to Account Content. PA will use reasonable efforts to ensure that Account Content uploaded on to the PA POS System is accessible on a 24/7 basis. However, there will be occasions when the PA POS System will be interrupted for maintenance, upgrades and repairs, or because of failure of telecommunications that are beyond PA’s control. PA will not be liable to you for any suspension or interruption of the PA POS System.
Due to the open nature of Internet communications, no data transmission over the Internet can be guaranteed to be secure, and thus PA cannot guarantee that communications between you, on the one hand, and PA, on the other, will be free from unauthorized access by third parties.
20. Account and Password: To use the PA POS System, you may be assigned a user ID and temporary password. If assigned, you will be asked to change that temporary password. You will: (i) keep the user ID and password confidential; (ii) not allow any other entity or person to use the user ID or password or gain access to the PA POS System or Account Content; (iii) be liable for all action taken by any user of the user ID or password; and (iv) promptly notify PA if you believe the user ID or password has been stolen or used inappropriately, or if the confidentiality or security of the information or systems made available through such use has been compromised. The use of the user name does not grant you ownership of such user name, which is retained by PA. PA may revoke your user name at any time for any or no reason and without liability to you.
21. Indemnification: You will indemnify, defend, and hold PA and the PA Providers harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, fines, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a 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; (b) your wrongful or improper use of the Services; (c) any transaction submitted by you through the Services; (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 PA DSS, PCI DSS, or any law, rule or regulation of the United States or any other country; (f) any other party’s access and/or use of the Services with your username, password or other appropriate security code.
22. No Warranties: THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE 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 PA OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, PA DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR FREE OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
You acknowledge that any software or content downloaded or otherwise obtained in connection with the PA POS System is downloaded at your own risk and that you will be solely responsible for any damage to your property or loss of data that results from such download.
23. Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PA OR THE PA PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL PA OR THE PA PROVIDERS BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR PA ACCOUNT, OR THE INFORMATION CONTAINED THEREIN. IN NO EVENT SHALL PA OR THE PA PROVIDERS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY PA IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
24. Governing Law: This Agreement and any dispute relating to it will be governed by Michigan law as applied to agreements entered into and to be performed entirely within Michigan, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction.
25. Disputes: PA and you each agree that any dispute or claim arising out of or relating to this Agreement or the Services (each, a “Dispute”), shall be settled by following the procedures:
- The party initiating the Dispute shall contact the other party and provide a written description of the Dispute, all relevant documents/information and the proposed resolution (the “Claim Notice”). You agree to contact PA by calling or writing to: Claims Administrator, 250 Stephenson Hwy, Troy Michigan 48083, No. 1-855-733-7264.
- The Claims Administrator for PA and you shall then seek in good faith to resolve the Dispute. As part of this process, each party to the Dispute shall provide a monetary amount that, if paid to the party initiating the Dispute, would settle the Dispute (the “Settlement Amount”). If the parties do not agree to a Settlement Amount, or the parties are otherwise unable to settle the Dispute within thirty (30) days of the date of delivery of the Claim Notice, then the parties shall proceed to arbitration, as set forth below.
- IN THE ABSENCE OF RESOLVING THE DISPUTE, AND INSTEAD OF SUING IN COURT, PA AND YOU AGREE TO SETTLE AND RESOLVE FULLY AND FINALLY ALL DISPUTES EXCLUSIVELY BY ARBITRATION, EXCEPT IN THE FOLLOWING LIMITED CIRCUMSTANCES: (I) PA OR YOU MAY COMMENCE AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT WHERE THE AMOUNT OF THE DISPUTE DOES NOT EXCEED THE JURISDICTIONAL LIMIT OF SUCH COURT; AND (II) YOU MAY FILE A DISPUTE WITH ANY FEDERAL, STATE OR LOCAL GOVERNMENTAL AGENCY THAT CAN, IF THE LAW SO AUTHORIZES, SEEK RELIEF AGAINST PA. THE AGREEMENT TO HAVE DISPUTES RESOLVED BY ARBITRATION IS MADE WITH THE UNDERSTANDING THAT EACH PARTY IS IRREVOCABLY, KNOWINGLY AND INTELLIGENTLY WAIVING AND RELEASING ITS RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE DISPUTES.
- The foregoing arbitration shall be administered by the American Arbitration Association (the “AAA”) in accordance with its Commercial Arbitration Rules in effect when a Claim Notice is duly provided under this Section 22. If any AAA procedure or rule conflicts with the terms of this Agreement, the terms of this Agreement apply.
- The arbitration set forth in this Agreement and any proceedings thereunder shall be governed by the Federal Arbitration Act (the “FAA”), 9 S.C. Sections 1-16. Any award by the arbitrator may be entered as a judgment in any court having jurisdiction. Any arbitrator’s decision and award is final and binding, subject only to those exceptions under the FAA. The award of the arbitrator shall be accompanied by a reasoned opinion. PA and you agree the FAA’s provisions, not state law, govern all questions of whether a Dispute is subject to arbitration.
- Unless PA and you agree otherwise, the foregoing arbitration will be conducted by a single neutral arbitrator selected by utilizing the process provided in the AAA’s Commercial Arbitration Rules in effect when Claim Notice is duly filed. The arbitrator shall be a licensed attorney and/or retired judge. Except as otherwise provided below, the arbitration shall be conducted in the county where the principal address of the party against whom the Dispute is initially commenced is located – and for any claim against PA, that address shall be the address of the Claims Administrator. The federal or state law that applies to this Agreement will apply during the arbitration.
- For Disputes of $10,000.00 or less that are initiated by you (“Small Disputes”), the following rules shall apply notwithstanding anything to the contrary in the procedures or rules of the AAA and/or in this Agreement: (1) the arbitration shall be conducted in accordance with the AAA’s Expedited Procedures; (2) the arbitrator shall include a finding as to whether the initiation of such Dispute was frivolous and, if it is determined by the arbitrator not to be frivolous, then PA shall pay the fees and costs assessed by the AAA in administering the arbitration; (3) If the arbitrator finds that PA is liable to you for an amount greater than the Settlement Amount presented by PA prior to the commencement of arbitration (after all offsets and counterclaims are applied), then PA shall be required to pay in addition to any award of the arbitrator an amount equal to the greater of (x) $1,000.00, or (y) twice the amount of your reasonable attorneys’ fees; (4) you may choose to conduct the arbitration in the state of your principal address.
- PA AND YOU EACH AGREES NOT TO PURSUE ARBITRATION ON A CLASS-WIDE ARBITRATION WILL BE CONDUCTED SOLELY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. PA and you each waives the right to trial by jury of any Dispute.
26. Right to Amend: PA may 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 Services with notice that PA in its sole discretion deems to be reasonable in the circumstances. Any use of the Services after PA’s publication of any such changes shall constitute your acceptance of this Agreement as modified.
27. Entire Agreement: This Agreement, including the PA Application, any schedule of fees, and information contained in websites or electronic links referenced in this Agreement, expresses the entire understanding of the parties with respect to its subject matter. Reference to "this Agreement" also includes all documents, websites and electronic links incorporated into this Agreement by reference.
28. Notices; Consent to Electronic Communications: You agree to the receipt of electronic communications by email or by the posting of such information by PA at one or more of its sponsored Internet websites. In addition, all notices and other communications required or permitted under this Agreement by PA to you may also be delivered by FAX, overnight carrier or first class mail, postage or other charges prepaid. All notices and other communications required or permitted under this Agreement by you to PA shall be delivered by you by overnight carrier or certified mail, postage or other charges prepaid, addressed and transmitted as set forth below.
MERCHANT PROCESSING AGREEMENT
RECITAL AND DEFINITIONS:
Parties to this Merchant Credit Card Processing Agreement (this “Agreement”):
“Merchant” - The Merchant identified on the Merchant Application, as defined below.
“Guarantor(s)” - The Guarantor(s) of Merchant’s obligations under this Agreement, as set forth in the Merchant Application. “Member” – BMO Harris Bank N.A.
“Agent” – North American Bancard, LLC.
“Processing Partner” – A third party provider of electronic transaction processing services that has contracted with AGENT to provide certain services to Merchants from time to time.
“Servicers” - collectively refers to Member, AGENT and any applicable Processing Partner.
“Merchant Portal” – The Merchant Portal is the online portal Merchant can access information and documents pertaining to the Merchant Account.
ACCEPTANCE OF TERMS BY MERCHANT:
Merchant has completed and submitted to Servicers an application for services that provides information about Merchant’s business and processing needs (the “Merchant Application”). As part of the Merchant Application, Merchant has certified that it has read this Agreement, and understands and agrees that the terms of this Agreement will be binding upon it if and when Servicers approve the Merchant Application to receive requested services. A MERCHANT’S SUBMISSION OF A TRANSACTION TO SERVICERS SHALL CONSTITUTE RATIFICATION OF EACH AND ALL OF MERCHANT’S OBLIGATIONS UNDER THIS AGREEMENT.
To the extent Merchant accepts American Express (“AXP”) cards, the provisions in this Agreement with respect to AXP apply if Merchant does not have a separate agreement with AXP.
ARTICLE I. GENERAL PROVISIONS.
The General Provisions set out in this Article I govern the relationship between Servicers and Merchant for all services provided by or through Servicers. The subsequent sections of this Agreement define the terms of service for different service offerings of the Servicers and shall apply to Merchant at such time that Merchant commences receiving such services.
1.1 Compliance with Rules and Servicers Guidelines.
Merchant agrees to comply with and be subject to all Rules of MasterCard International, Inc., (“MasterCard”), Visa International (“VISA”), JCB, International (“JCB”), Discover Network (“Discover Network”), American Express (“AXP”) and the National Automated Clearing House Association (“NACHA”), as they may exist from time to time and as applicable to Merchant’s activities under this Agreement. Merchant also agrees to comply with all guidelines, policies and procedures for services provided to Merchant by Servicers from time to time. Additional information and links to locations where Merchant can see or obtain copies of the Rules are located at www.myresourceportal.com/programguide.
MERCHANT UNDERSTANDS AND ACKNOWLEDGES THAT DISCOVER, AXP, JCB, NACHA AND OTHER SERVICES ARE NOT PROVIDED TO IT BY MEMBER BANK, BUT ARE INSTEAD PROVIDED BY AGENT, THE PROCESSING PARTNER AND/OR THIRD PARTIES. FOR PIN DEBIT TRANSACTIONS, SUCHTHIRD PARTIES MAY INCLUDE SPONSORING OR ACQUIRING BANKS THAT ARE NOT RELATED TO MEMBER BANK.
THE PROVISIONS OF THIS AGREEMENT REGARDING DISCOVER NETWORK CARD TRANSACTIONS, AXP CARD TRANSACTIONS, JCB CARD TRANSACTIONS, NACHA TRANSACTIONS, OR ANY OTHER NON-BANK CARD TRANSACTIONS CONSTITUTE AN AGREEMENT SOLELY BETWEEN MERCHANT, AGENT AND THIRD PARTIES. MEMBER BANK IS NOT A PARTY TO THIS AGREEMENT INSOFAR AS IT RELATES TO SUCH TRANSACTIONS.
1.2 Enforcement of Servicer Rights.
To the maximum degree permitted by law and by the Rules of MasterCard, VISA, JCB, AXP, Discover Network, and NACHA, it is the intention of the parties that the rights of Servicers set forth in this Agreement, or arising from this Agreement, may be exercised solely by AGENT or an applicable Processing Provider, or its or their authorized designees.
1.3 Warranties of Merchant.
Merchant hereby represents and warrants to Servicers at the time of submission of the Merchant Application and during the term of this Agreement that:
(a) All information contained in the Merchant Application or any other documents delivered to or on behalf of Servicers in connection therewith is true and complete and accurately reflects Merchant’s business, financial condition and principal partners, owners or officers.
(b) Merchant is duly organized and in good standing under the laws of the jurisdiction of its organization, and is duly qualified to conduct business in each jurisdiction where failure to do so would have a material adverse effect on its business.
(c) Merchant has the power to execute, deliver and perform this Agreement, and this Agreement is duly authorized, constitutes a valid and binding obligation of Merchant and will not violate any provisions of law, or conflict with any other agreement to which Merchant is subject.
(d) Merchant has all licenses, if any, required to conduct its business and is qualified to do business in every jurisdiction where it is required to do so.
(e) There is no action, suit or proceeding at law or in equity now pending or to Merchant’s knowledge, threatened by or against or affecting Merchant which would substantially impair its right to carry on its business as now conducted or adversely affect its financial condition or operations.
(f) Unless Merchant notifies Servicers in writing (either on the Merchant Application or otherwise) and is approved by Servicers, no other processing relationship for any of the services offered by Servicers under this Agreement may exist between Merchant and another Card processing institution, for any business owned or operated by Merchant.
(g)(i) the taxpayer identification number (“TIN”) provided on the Merchant Application is Merchant’s true and correct TIN; (ii) Merchant is not subject to backup withholding because (a) Merchant is exempt from backup withholding, (b) Merchant has not been notified by the IRS that it is subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified Merchant that it is no longer subject to backup withholding, and (iii) Merchant is a citizen of the United States of America (“U.S.”) or other U.S. person. (For federal tax purposes, Merchant is considered a U.S. person if Merchant is: an individual who is a U.S. citizen, or U.S. resident alien, partnership, corporation, company or association created or organized in the United States or under the laws of the United States, and estate (other than a foreign estate), or a domestic trust (as defined in the Internal Revenue Code section 301.7701-7.))
(h) No owner, officer, director, employee or agent of Merchant is a current or former “senior” official in the executive, legislative, administrative, military, or judicial branch of any government (elected or not); or an official of a political party; or an executive of a government-owned commercial enterprise; or a family member of any of the foregoing officials; or a close personal or professional associate of any foregoing officials.
1.4 Notifications Regarding Changes in Merchant’s Business or Application Information.
(a) Merchant must provide Servicers with immediate notice of its intent to: (i) transfer or sell any substantial part of its total assets, or liquidate; (ii) change the basic nature of its business, including selling any products or services not related to its current business; (iii) change ownership or transfer control of its business; (iv) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a party to this Agreement assumes any interest in Merchant’s business; or (v) alter in any way Merchant’s approved monthly volume and average ticket.
(b) Merchant must immediately notify Servicers of any Bankruptcy, receivership, insolvency, levy or similar action initiated by or against Merchant or any of its principals. Merchant will include Servicers on the list of creditors filed with the applicable Bankruptcy Court in connection with any such Bankruptcy, whether or not a claim exists at the time of filing.
(c) Merchant must notify Servicers in writing of any changes to the information in the Merchant Application, including but not limited to a material change to Merchant’s financial condition (within three (3) days of such occurrence), any additional location or new business, a change in the business location or contact information, both physical and email addresses, the identity of principals and/or owners, the form of business organization, type of goods and services provided, and how sales are completed. Merchant must also notify Servicers in writing if Merchant sells or closes its business. Except for a change to the financial condition, all such notices must be received by Servicers seven (7) days before the change. Merchant will also provide updated information to Servicers upon request.
(d) Merchant must immediately notify Servicers in writing if Merchant is threatened with or becomes party to any action, suit or proceeding at law or in equity that could substantially impair its right to carry on its business or adversely affect its financial condition or operations.
(e) Merchant must provide separate notification regarding changes to service providers used by Merchant in connection with Servicer-provided services, including but not limited to AXP, and equipment leasing companies.
1.5Credit and Financial Inquiries: Anti-Money Laundering; Additional Locations: Inspections.
(a) IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person (individual, corporation, partnership, trust, estate, or any other entity recognized as a legal person) who opens an account. In order to comply with the requirements of the USA PATRIOT Act, Member Bank may require the Merchant to provide its legal name, street address, taxpayer identification number and other information that will allow Member Bank to identify Merchant prior to establishing accounts under, or in connection with, this Agreement. Member Bank reserves the right to require that Merchant promptly provide, to Member Bank sufficient identification documentation upon request and in connection with USA PATRIOT Act compliance.
U.S. Economic Sanctions. Prior to establishing accounts under, or in connection with, this Agreement, Member Bank may require identifiable information on the Merchant's Cardholders to allow U.S. Bank USA to remain in compliance with U.S. Economic Sanctions. Merchant agrees to promptly provide any such information to Member Bank.
(b) Merchant hereby authorizes Servicers to make, at the time of submission of the Merchant Application and at any later time during which Merchant owes any obligation to Servicers, any credit inquiries which, in their discretion, may be necessary or prudent. Merchant, and each individual owner thereof (in the case of an unincorporated business), general partner thereof (in the case of a partnership), Guarantor, individual executing this Agreement, and individual who is or becomes personally liable for the performance of the obligations of Merchant under this Agreement, hereby agrees that such inquiries may include, in the Servicers’ discretion and without limitation, obtaining a consumer credit report of each of them. If requested to do so by Servicers, Merchant shall provide the written consent of any other person for which an inquiry has been or is to be. Merchant will also provide any financial statements, income tax and business tax returns and other financial information as Servicers may consider necessary to perform initial or periodic reviews of Merchant’s financial stability and business practices.
(c) Information obtained under Section 1.05(a) above may be used by Servicers, without limitation, for one or more of the following purposes: (i) to evaluate current and ongoing credit worthiness; (ii) to evaluate continuing eligibility for the services provided under this Agreement, and to establish, administer, service, and enforce provisions of this Agreement; (iii) to verify the identity of Merchant, and each individual identified in Section 1.05(b) above, including matching records or credit information; (iv) for detecting and preventing fraud and complying with anti-money laundering and terrorist financial regulations, including checking identities against watch lists established by regulatory agencies or similar bodies; (v) to meet legal, regulatory, audit, processing and security requirements; (vi) to support merchant retention operations; or (vi) from time to time, to determine Merchant’s eligibility for and occasionally to communicate with Merchant regarding additional products, services or business opportunities.
(d) Merchant, and each person identified in Section 1.05(b), acknowledges and agrees that a permissible purpose exists under the Fair Credit Reporting Act to support the Servicers request for consumer credit inquiries identified in Section 1.05(b). Merchant may withdraw the authorization to obtain consumer credit reports by contacting the AGENT customer service department in writing.
(e) Merchant agrees to permit Servicers at any time from time to time, to inspect locations to confirm that Merchant has adhered or is adhering to the terms of this Agreement and is maintaining the proper facilities, equipment, inventory, records and licenses or permits (where necessary) to conduct its business. However, nothing in this Section 1.05(e) shall be deemed to waive Merchant’s obligation to comply in all respects with the terms of this Agreement.
(f) Merchant may process Card transactions only at locations and websites approved by Servicers. Additional locations may be added, subject to Servicers’ approval. Either Merchant or Servicers may delete any location by providing notice as provided in this Agreement.
(g) Representatives of Servicers may, during normal business hours, inspect, audit and make copies of Merchant’s books, accounts, records and files pertaining to any Card transactions processed by or through Servicers.
1.6Guarantor Notifications and Authorizations.
The decision of Servicers to enter into and continue processing Card transactions for Merchant is based on the financial condition of Guarantor and the ability of Guarantor to guarantee Merchant’s obligations under this Agreement. Accordingly, Guarantor must provide Servicers with information regarding changes in his or her contact information and financial circumstances. Guarantor agrees to take the actions required under Section 1.04(b) through (e). Guarantor also authorizes Servicers to make ongoing inquiries about Guarantor as detailed in Section 1.5. For purposes of understanding Guarantors obligations and authorizations under this Section, Guarantor will apply the provisions of Section 1.04 and 1.05 to Guarantor by substituting the term Guarantor in place of Merchant where it appears in such sections.
(a) Merchant will establish and maintain an Account at a depository institution approved by Servicers. Merchant will maintain sufficient funds in the Account to satisfy all obligations, including the fees, Chargebacks and returns contemplated by this Agreement. Merchant irrevocably authorizes Servicers to debit the Account for fees, Chargebacks, returns, fines and any other penalties<