Centavo Inc., hereinafter referred to as “Payabli”, offers merchants various products and services relating to payment processing and other value-added services directly and through Third Party Service Providers. In order for you, on behalf of your company, to obtain or continue using the transaction processing services, payment gateway services and other value-added products and services, more fully described at www.payabli.com as such descriptions may be changed from time to time (the “Payabli Services”), you must agree to and accept the terms and conditions of this agreement (the “Agreement”). This Agreement sets out the terms and conditions under which you may utilize the Payabli Services. Please read this Agreement carefully. It is important that you understand that upon your acceptance of this Agreement, by continuing to use any of the Payabli Services and/or by clicking on the “I AGREE” button at the end of this Agreement, it becomes a legally binding contract.
By continuing to use any of the Payabli Services and/or by clicking on the “I AGREE” button you represent that you have reviewed and understand the Agreement and agree to be legally bound by all its terms and conditions (including the terms and conditions stated on web pages incorporated by reference herein).
The Payabli Sub-merchant Agreement found at https://www.payabli.com/documents-payabli-sub-merchant-agreement/ is incorporated herein by reference for those merchants having a direct agreement with Payabli.
The Payabli Tri-party Terms and Conditions found at https://www.payabli.com/documents-payabli-tri-party-tscs/ is incorporated herein by reference for those merchants whose transaction volumes require an agreement between themselves, Payabli’s Acquirer, and Payabli.
If you do not agree or are not willing to be bound by the terms and conditions of this Agreement, please do not click on the “I AGREE” button and do not seek to obtain or continue using the Payabli Services.
NOW THEREFORE, you and/or your company, (“You” or “Your”) agree as follows:
1. DEFINITIONS:
“Acquirer” or “Acquiring Bank” or “Acquiring Institution” means the financial institution supplying You with the ability to accept credit cards for payments. The financial institution will charge You fees for providing these services.
“ACH” or “Automated Clearing House” means an electronic network that allows the exchange and settlement of electronic payments between financial institutions.
“Affiliate Partner” means any third party through whom Payabli may offer the Payabli Services to You, including but not limited to an “ISO” or “Independent Sales Organization”, Merchant Service Provider (“MSP”), Value Added Reseller (“VAR”), Application Service Provider (“ASP”), Acquiring Bank and Financial Institution.
“API” or “Application Programming Interface” means an interface allowing integration with a programmable software package or platform.
“AVS” or “Address Verification Service” for the purposes of this agreement shall mean a response generated by the Issuing Bank to indicate the level of accuracy of a given address based on the billing address of the customer’s credit card.
“Batch” means any bulk processing of Transactions, or a bulk settlement submitted to a Processor by Payabli including credit card, ACH, or other related transactions.
“Card Association” for the purposes of this Agreement means a network of Issuing Banks and Acquiring Banks that process payment cards of a specific brand. Without limiting the foregoing definition, American Express, Discover Financial Services, JCB International, MasterCard International Inc., Visa Inc., Visa International Inc., and any other payment card company belong to the Card Association.
“Close Batch” means the process of sending a batch of transactions for settlement.
“Confidential Information” means any information, data, trade secrets, know-how, directly, or indirectly, in writing or orally or by inspection of samples, equipment or facilities, including but not limited to past, present and future research, products, product plans, services, services documentation (in whatever form or media provided) customers, customer lists, user data, revenue, markets, software developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration, marketing, marketing materials, financial or other business information, or the financial terms of this Agreement.
“Discount Rate” means the fee charged by Your financial institution to You for services associated with processing card transactions or fees charged by Payabli to You for ACH or other payment methods.
“Effective Date” means the earlier of the date You agree to the terms and conditions of the Agreement by (i) clicking the “I AGREE” button associated with the Agreement; or (ii) by using Payabli Services or (iii) acknowledging Your acceptance of the Agreement by any other method, including without limitation execution of a Merchant Account Application that incorporates the Agreement by reference.
“Fee Schedule” means a list of fees and charges that is accepted by You and paid by you to Payabli.
“Interchange Fee” means the fee set by and collected by the Card Association from Your financial institution (Acquiring Bank) and paid to the issuing financial institution (Issuing Bank) to cover expenses incurred in billing the cardholder.
“IP Address” means an internet address usually represented in dotted decimal, e.g. “127.0.0.1”.
“Issuing Bank” means the financial institution that issues Card Association branded Payment Cards directly to consumers.
“Payabli Web Services” means accessing any Payabli web page, mobile application or software development kit.
“PCI DSS” means Payment Card Industry Data Security Standard.
“Privacy Policy” means the then current Payabli Privacy Policy which can be found on the internet at https://www.payabli.com .
“Return Payment Fee” is a fee charged to You by Payabli on each occurrence when Payabli is unable to collect fees on Your Account for any reason, including but not limited to insufficient funds, closed account, or any other negative response.
“Third Party Service Provider” for purposes of this Agreement means an entity that provides bank and/or merchant payment services including, but not limited to billing, reporting, customer service, authorization, and settlement services.
“Trademark(s)” means all common law or registered trademark(s), service mark(s), trade name(s) and trade dress rights and/or similar or related rights under any laws of any country or jurisdiction, including but not limited to the United States of America whether existing now or hereafter adopted.
“Transaction(s)” means any billable occurrence completed or submitted under Your Account including but not limited to sale, void, refund, credit, offline force, capture, authorization, validate, update or settlement regardless of whether approved or declined.
“VAR” or “Value Added Reseller” means any third-party vendor that enhances or modifies existing hardware or software, adding value to the services provided by the processor or acquirer..
2. TERM: The term of the Agreement shall commence on the Effective Date and shall remain in full force and effect until terminated pursuant to Section 10.
3. LEGAL: By accepting the terms and conditions of this Agreement, You represent and warrant that (i) You have the legal authority to accept the terms and conditions of this Agreement on behalf of Your company and that such acceptance will be binding on Your company, (ii) all information You have provided to Payabli is true and correct in all respects, and (iii) You will update Payabli in writing with any changes to information You have previously supplied. In furtherance of Your representations, Payabli reserves its right to refuse to provide You with any Payabli Service and terminate this Agreement, with or without notice, if You have supplied any information which is misleading, untrue, inaccurate or incomplete.
4. USE OF PAYABLI SERVICES
4.1 Payabli Grant
(a) You are hereby granted a non-exclusive right to use the Payabli Services during the Term hereof so long as You are current in paying all applicable fees as referenced in Section 8 and Section 9 hereof, subject to the restrictions contained herein and restrictions communicated to You in the future by Payabli. Payabli shall provide the Payabli Services to You in all material respects in accordance with the terms and conditions of this Agreement and Your rights are granted solely for the purposes contained herein and for no other purpose.
(b) Your use of the Payabli Services shall be restricted to You. You shall not submit Data or Transaction data to Payabli or otherwise process orders on behalf of any other entity or individual. Any attempt by You to use the Payabli Services on behalf of another entity or individual may result in Your obligation to pay to Payabli additional fees and charges and/or Payabli may revoke Your right to use the Payabli Services and terminate this Agreement.
(c) In connection with the exercise of Your rights and obligations under this Agreement including, without limitation, any related to individual privacy, You will comply, at Your own expense, with all applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction. You shall not use the Payabli Services in any manner, or in furtherance of any activity that may cause Payabli to be subject to investigation, prosecution, or legal action.
(d) Payabli reserves the right to amend, modify or change its policies, procedures, and guidelines and You shall comply with all then current policies, procedures, and guidelines of Payabli governing the Payabli Services.
(e) Use of the Payabli Web Services is subject to the Payabli Terms of Use, available on the Payabli web site at https://www.payabli.com.
5. DATA SECURITY, COLLECTION, TRANSFER AND RETENTION
5.1 Payabli’s Duties
(a) You understand Payabli will collect, retain, use and share information and data collected from You and your customers in accordance with Payabli’s then current Privacy Policies. You hereby consent, as a condition of Your enrollment in and use of the Payabli Services, to the collection, use, processing and transfer of personal data as described in Section 5 and Payabli’s Privacy Policies.
(b) You understand that Payabli may collect and hold personal or non-public information about You and Your customers, including but not limited to: Your name, address, telephone number, e-mail address, social security number and/or tax identification number and payment data as well as Your customers’ names, mailing & shipping addresses, email addresses, phone number, types of purchases and descriptions of purchases (“Data”) for the purpose of considering eligibility for the Payabli Services and for the purpose of providing You and your customers with the Payabli Services. You also understand and agree that Payabli, its subsidiaries, Affiliate Partners, Third Party Service Providers, suppliers and/or their agents and/or contractors may transfer Data among themselves as necessary for the purpose of the provision and management of the Payabli Services and that Payabli may further transfer Data (i) with non-affiliated entities that assist Payabli in providing products and services that You have requested; (ii) with companies that provide support services to Payabli; (iii) with companies that provide marketing services on behalf of Payabli; or (iv) as otherwise provided by law.
(c) You further understand that in evaluating Your eligibility for, provision of, administration and management of the Payabli Services, as well as under circumstances described in the Privacy Policy that may be changed from time to time, that Payabli may obtain various consumer reports regarding You from third parties, run a credit check or obtain other personal or credit information about You.
(d) You further understand that while Payabli uses commercially reasonable efforts to safeguard Data and Transaction data transmitted while using Payabli Services, Payabli does not warrant that Data and Transaction data will be transported without unauthorized interception or modification or that Data or Transaction data will not be accessed or compromised by any unauthorized third parties.
(e) With respect to the Payabli Services, at all times while this Agreement is in effect, Payabli will maintain compliance with the Payment Card Industry Data Security Standard (PCI DSS).
5.2 Your Duties
(a) You agree that you will comply at all times with all applicable and then-current legal obligations and security measures including without limitation those issued by the United States Government, Federal, State and Municipal laws and ordinances, Card Association, the Federal Trade Commission, PCI DSS and any other governing body. You agree that you will comply with all Payabli security protocols, notices and safeguards in effect during the term of this Agreement. You warrant that You have taken such precautions as are necessary to ensure that Your data and Your customer data is protected and that Your electronic systems are secure from breach, intrusion or compromise by any unauthorized third parties. In the event that Your system is breached and an unauthorized third party has access to or has accessed Data or Transaction data, You shall notify the designated parties as required under any applicable laws or industry guidelines and shall immediately notify Payabli of such breach and take such prompt action and precautions as necessary to prevent any continuous or additional breach.
(b) You are solely responsible for the security of data residing on server(s) owned or operated by You, Third Party Service Provider, or a third party designated by You (e.g., a web hosting company, processor, or other service provider), including credit card numbers and any other personal data. You shall comply with all applicable laws and regulations governing the collection, retention and use by You of credit card and other financial information and agree to provide notice to your customers on Your web site that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement.
(c) You agree that You are solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by Payabli associated with Your account and verifying that all corresponding funds are accurately processed. You acknowledge that the fees associated with any and all transactions processed through Your account are earned by Payabli and shall not be reimbursed. You acknowledge that Payabli shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to Your account, Data or Transaction data. Payabli’s liability for unauthorized Transactions or improperly processed Transactions solely attributable to the negligence of Payabli is limited pursuant to Section 13.
(d) You agree not to use, disclose, sell or disseminate any card, cardholder or ACH information obtained in connection with a Transaction except for purposes of completing or settlement of a Transaction and/or resolving chargebacks, retrievals or similar issues involving a Transaction unless required to do so by court order or governmental agency request, subpoena or order.
(e) You agree that You are solely responsible for compiling and retaining permanent records of all Data and Transaction data for Your reference. Except as otherwise provided herein, Payabli shall have no obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or other Data collected or processed by Payabli. You acknowledge that upon termination of this Agreement, Payabli shall have no obligation to provide You with any Data or Transaction data. You agree that You shall use proper controls for and limit access to all Data or Transaction data. Prior to discard You shall render all Data or Transaction data unreadable and abide by any laws or regulations imposed on You for Data or Transaction data destruction and/or disposal.
5.3 Your User Name and Password
(a) In connection with Your rights described in Section 4.1, Payabli or Affiliate Partner will issue to You, or permit You to use a user name and password, to enable You and/or Your employees and agents to access Your gateway account and use the Payabli Services. You will restrict access to such user name, password, and account to Your employees and agents as may be reasonably necessary and consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using the account is aware of and otherwise complies with all applicable provisions of this Agreement and any recommendations and notices regarding such use and access.
(b) You are solely responsible for maintaining adequate security and control of any and all user names, passwords, or any other codes that are issued to You by Payabli or Affiliate Partner or selected by You, for purposes of giving You access to the Payabli Services. Payabli shall be entitled to rely on information it receives from You and may assume that all such information was transmitted by or on behalf of You.
6. TRADEMARKS
6.1 Trademark Use
(a) Payabli hereby grants to You the right to use, reproduce, publish, perform and display the Payabli Marks as follows: (a) on Your web site in connection with Your offering of Payabli Services to Your customers; and (b) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the Payabli Services.
(b) You hereby grant to Payabli, its Third Party Service Provider and its Affiliate Partners the right to use, reproduce, publish, perform and display Your Marks as follows: (a) in connection with the development, use, reproduction, modification, adaptation, publication, display and performance of the Payabli Services offered and/or accessible through Your web site; and (b) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the Payabli Services.
(c) For purposes of this Agreement, “Your Marks” means Your customary name and logo, and such other trademarks as You may from time to time notify Payabli to be “Your Marks” within the meaning of this Agreement. For purposes of this Agreement, “Payabli Marks” means Payabli customary name and logo, and such other trademarks as Payabli may from time to time notify You to be “Payabli Marks” within the meaning of this Agreement.
6.2 Trademark Restrictions
(a) Each party shall comply with all standards with respect to the other party’s Trademarks which may be furnished by such party from time to time and all uses of the other party’s Trademarks in proximity to the trade name, trademark, service name or service mark of any other person or entity shall be consistent with the standards furnished by the other party from time to time. Neither party shall create a combination mark consisting of one or more Trademarks of each party. All uses of the other party’s Trademarks shall inure to the benefit of the party owning such Trademark. Each party hereby acknowledges and agrees that, as between the parties, the other party is the owner of the Trademarks identified as its Trademarks in any written notice provided to the other party pursuant to this Agreement. Either party may update or change the list of Trademarks usable by the other party hereunder at any time by written notice to the other party.
(b) Either party must include a statement of ownership when displaying or reproducing either parties trademark. The following statement is acceptable and shall be placed contiguous to the Trademark: “The trademark is the property of its respective owner.”
(c) Except as otherwise provided herein, You shall not use, register or attempt to register any Payabli Trademarks or marks or domain names that are confusingly similar to any of the Payabli Trademarks, marks or Domain Name(s). Except as authorized in this agreement, You shall not take any actions inconsistent with Payabli’s ownership of Payabli’s Trademarks and any associated registrations or attack the validity thereof. You shall not use Payabli’s Trademarks in any manner that would indicate You are using such Payabli Trademarks other than as a licensee nor assist any third party do any of the same.
7. INTELLECTUAL PROPERTY AND PROHIBITION AGAINST REVERSE ENGINEERING The parties agree that Payabli owns and retains all right, title and interest in and to the Payabli Services, Trademarks, copyrights, technology and any related technology utilized under or in connection with this Agreement, including but not limited to all intellectual property rights associated therewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to You or any other entity or person under this Agreement. You shall not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of Payabli Services or related technology.
8. PAYMENT TERMS
8.1 Due Date and ACH Authorization
(a) Payabli fees shall begin on the Effective Date and You will be billed on the first business day of each month following the Effective Date for any and all amounts owing under this Agreement. If fees accrue to more than $50.00 USD at anytime in any given month, Payabli will bill You the full amount due on a more frequent basis at Payabli’s discretion.
(b) You must authorize Payabli to initiate transaction entries to Your depositories account through ACH. This authority is to remain in full force and effect until i) Payabli has received written notification from You of Your request for termination in such time as to afford Payabli and Your depository institution a commercially reasonable opportunity to acknowledge and respond to the request and ii) Payabli has collected all fees due and owing under this agreement. If Payabli is unable to collect amounts owing from your depository account, You hereby authorize Payabli to charge Your credit card for any and all amounts owing to Payabli under this Agreement. Entries initiated to or from Your depository account will be in accordance with the rules of the National Automated Clearing House Association (NACHA) and/or any other regulatory body or agency having jurisdiction over the subject matter hereof.
(c) You must promptly update Your account information with Payabli or Affiliate Partner with current and accurate information. If You fail to provide Payabli or Affiliate Partner with current and accurate depository account or credit card account information, Payabli may immediately discontinue providing Payabli Services to You, without liability, until such information is provided to Payabli and/or terminate this Agreement. You acknowledge that any change in account information may not be effective until the month following the month in which Payabli receives such notice. Termination of Your authorization shall result in termination of any and all Payabli Services.
8.2 Affiliate Partner Bills You In furtherance of Section 8.1, if You are billed by an Affiliate Partner for some or all of the Fees, You shall pay the Affiliate Partner in such manner as mutually agreed upon between You and such Affiliate Partner.
9. FEES
9.1 Payabli Service Fees
(a) You shall pay to Payabli the fees as set forth in the Fee Schedule provided to You by Payabli and/or, if applicable Affiliate Partner. The Fee Schedule is hereby incorporated into the terms of this Agreement by reference.
(b) Notwithstanding the foregoing, if Your relationship with the Affiliate Partner that offered you the Payabli Services expires or terminates and such Affiliate Partner was billing You for certain Fees, then You may continue using the Payabli Services. If You elect to continue using the Payabli Services, You acknowledge and agree that Payabli may begin to bill You for such Fees in the amounts that the Affiliate Partner had been charging You. In accordance with Section 15.5 Payabli may amend the Fee schedule after providing You with thirty (30) days notice.
9.2 Other Fees and Charges
(a) You shall incur a late fee in the amount set forth in the fee schedule if any amounts due to Payabli under this Agreement are not paid on or before the tenth (10th) day following the date when due. In addition, You shall be subject to a finance charge equal to one and one-half percent (1.5%) per month or the highest rate allowable by law, whichever is less, determined and compounded daily from the date due until the date paid. Payment of such late fee(s) and finance charge(s) will not excuse or cure any breach or default for late payment. Payabli may accept any check or payment from You without prejudice to its rights to recover the balance due or to pursue any other right or remedy. No endorsement or statement on any check or payment or any correspondence accompanying any check or payment or elsewhere will be construed as an accord or satisfaction.
(b) On each occurrence when Payabli is unable to collect fees on Your Account for any reason, including but not limited to insufficient funds, closed account, or any other negative response, Payabli may charge You a Return Payment Fee in the amount of $25.00 USD, or as set forth in the fee schedule.
(c) If You have not paid all owing amounts after two (2) days when due, Payabli may, in its sole discretion, discontinue providing You with Payabli Services. If You have still not paid all owing amounts after thirty (30) days following the date the payment was due, then Payabli may, in its sole discretion, immediately terminate this Agreement. Notwithstanding, if You subsequently Pay In full all owing fees, including but not limited to late fees, finance charges and Return Payment Fees, and if Payabli has not already terminated this Agreement, then Payabli may elect to reactivate the Payabli Services and charge You a Service Reactivation Fee in the amount set forth in the fee schedule.
(d) You agree to pay all costs and expenses of whatever nature, including attorneys’ fees, incurred by or on behalf of Payabli in connection with the collection of any unpaid charges and fees.
(e) Electronic funds transfers will be subject to the Payabli Electronic Funds Transfer Agreement, available at //https:www.payabli.com.
10. TERMINATION
10.1 Termination by You
(a) You may terminate this Agreement with or without cause, and for any reason, by providing Payabli with at least thirty (30) days written notice of Your intent to terminate this Agreement.
(b) In the event You are billed by an Affiliate Partner in furtherance of Section 8.2 of this Agreement, you hereby authorize Affiliate Partner to terminate this Agreement on your behalf.
10.2 Termination by Payabli
(a) Payabli may terminate this Agreement and/or terminate Your use of Payabli Services immediately, or at anytime, without advance notice and with or without cause, for any reason including without limitation to Your breach or default of any obligation set forth in this Agreement or if Payabli determines, in its sole discretion, that Your business practices are detrimental to the achievement of Payabli’s business objectives.
(b) In such event, Payabli shall provide You with a written or electronic notice of termination.
10.3 Termination by Affiliate Partner or Third Party Service Provider
(a) In the event You are billed by an Affiliate Partner in furtherance of Section 8.2, and if Payabli receives notice from such Affiliate Partner that it has terminated or suspended its relationship with You, Payabli may suspend and/or terminate Your right to use Payabli Services and/or terminate this Agreement without notice and without liability.
(b) In the event Payabli is notified by a Third Party Service Provider, court of competent jurisdiction, governmental body or authority, Acquiring Bank or the Card Association that You are no longer entitled to receive payment data for any reason whatsoever, Payabli may suspend and/or terminate Payabli Services and/or this Agreement without notice and without liability.
10.4 Effect of Termination and Survival Upon termination of this Agreement for any reason whatsoever, all rights and interests under this Agreement shall be extinguished and shall be given no further force nor effect except that i) all accrued payment obligations hereunder shall survive such expiration or termination; and (ii) the rights and obligations of the parties under Sections 7, 10.4, 11, 12, 13, 14 and 15 shall survive termination.
11. CONFIDENTIALITY AND NONDISCLOSURE
11.1 Use of Confidential Information
(a) Each party that receives information (the “Receiving Party”) from the other party (the “Disclosing Party”) agrees to use reasonable best efforts to protect all non-public information, trade secrets and know-how of the Disclosing Party that is either designated as proprietary and/or confidential or that, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and in any event, to take precautions at least as great as those taken to protect its own Confidential Information of a similar nature. Each party agrees that the terms and conditions of this Agreement will be Confidential Information, provided that each party may disclose the terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary course of its business.
(b) Each Party agrees not to divulge any confidential information, trade secrets or know how or any information derived therefrom to any third person or entity and shall only disclose Confidential Information to employees on a “need to know” basis who have executed a nondisclosure agreement with similar terms and obligations to this Agreement.
(c) Each Party shall not make any use whatsoever at anytime of such Confidential Information except as contemplated by this Agreement.
(d) Each Party shall not copy or reverse engineer any such Confidential Information.
11.2 Exclusions The foregoing restrictions will not apply to any information that: (i) the Receiving Party can document it had in its possession prior to disclosure by the Disclosing Party, (ii) was in or entered the public domain through no fault of the Receiving Party, (iii) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality, (iv) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed), or (v) is independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party. Upon request of the other party, or in any event upon any termination or expiration of the Term, each party will return to the other all materials, in any medium, that contain, embody, reflect or reference all or any part of any Confidential Information of the other party. Each party acknowledges that breach of this provision by it would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this Section 11.
12. REPRESENTATIONS AND WARRANTIES
12.1 Mutual Representations and Warranties Each party represents and warrants to the other that (i) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms; (ii) the party’s obligations under this Agreement do not violate any law or breach any other agreement to which such party is bound; (iii) it has all necessary right, power and ability to execute this Agreement and to perform its obligations therein; and (iv) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Agreement.
12.2 Your Representations and Warranties
(a) You represent and warrant that You are engaged in a lawful business that includes the sale of products and/or services, and are duly licensed to conduct such business under the laws of all jurisdictions in which You conduct business. You further represent and warrant that all statements made by You in this Agreement, or in any other document relating hereto by You or on Your behalf, are true, accurate and complete in all material respects. You hereby authorize Payabli to investigate and confirm the information submitted by You herein. For this purpose, Payabli may utilize credit bureau / reporting agencies and / or its own agents.
(b) You will comply with all applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction. You will further comply with the Payment Card Industry Data Security Standard (PCI DSS), the Gramm-Leach-Bliley Act, the National Automated Clearing House Association (NACHA) and any other regulatory body or agency having jurisdiction over the subject matter hereof.
(c) You will abide with all material terms of the then current policies, procedures, and guidelines of Payabli governing the Payabli Services.
12.3 Payabli Representations and Warranties
(a) Payabli represents and warrants that the Payabli Services provide to you hereunder will substantially conform to the specifications as set forth in the applicable Payabli Service Level Agreement (SLA) as contained in Appendix A hereof and as may be amended from time to time in Payabli’s sole discretion. In addition to the exclusions contained in Appendix A, the SLA will not apply if (i) a defect has been caused by Your malfunctioning equipment or software, (ii) the Payabli Services are used in material variation with this Agreement or the applicable documentation, or (iii) any of the Payabli Services have been modified by any individual or entity other than Payabli.
(b) You acknowledge that Payabli Services are designed for use with certain third-party programs, including, without limitation, certain Internet browser software programs. You will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Payabli makes no warranty, express or implied, with regard to any such third-party software.
(c) You may not rely on the representation or warranty regarding Payabli Services by any third party in contravention of the foregoing statements, including representations or warranties of any Third Party Service Provider or Affiliate Partner. In the event of a breach of the foregoing warranty, Payabli shall use commercially reasonable efforts to repair, or at its option replace, the Payabli Services. You acknowledge that Payabli does not warrant that such efforts will be successful. If Payabli’s efforts are not successful, You may terminate this Agreement in accordance with Section 10.1. THE FOREGOING SHALL CONSTITUTE YOUR SOLE REMEDY, AND PAYABLI’S SOLE LIABILITY, FOR INTERRUPTIONS, OUTAGES OR OTHER DELAYS IN PAYABLI’S SERVICES AND/OR VALUE-ADDED SERVICES. Payabli does not warrant the services of any third party, including without limitation Third Party Service Providers, Affiliate Partners, VARS or the Card Association.
12.4 Payabli Services “As Is” Disclaimer PAYABLI SERVICES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES. PAYABLI DOES NOT REPRESENT OR WARRANT THAT THE PAYABLI SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR FREE. YOU MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE PAYABLI SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING, BUT NOT LIMITED TO REPRESENTATIONS BY THIRD PARTY SERVICE PROVIDERS OR AFFILIATE PARTNERS, EXCEPT AS SET FORTH IN THE SERVICE LEVEL AGREEMENT CONTAINED IN APPENDIX A OF THIS AGREEMENT. PAYABLI SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS OR IMPLIED ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE PAYABLI SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT PAYABLI SHALL BEAR NO RISK WITH RESPECT TO YOUR SALE OF PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD, ACH FRAUD, CHECK FRAUD OR CHARGEBACKS.
12.5 Disputes The parties shall promptly investigate any disputes under this Agreement. If the disputed amount is less than five percent (5%) of the total fees invoiced by Payabli for the relevant billing statement, the total amount invoiced shall be due and payable on or before the due date. If the amount in dispute is greater than five percent (5%) of the total fees invoiced by Payabli for the relevant billing statement, the disputed amount may be withheld until the dispute is resolved. All disputes must be made in good faith and in writing within thirty (30) days of the billing statement date. Fees billed shall be deemed accepted where written objections are not lodged within thirty (30) days from the billing statement date.
13. LIMITATION OF LIABILITY
13.1 Payabli Disclaimers
(a) GATEWAY EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE, WHICH ARISES FROM OR RELATED TO ANY UNAUTHORIZED ACCESS TO YOUR FACILITIES OR TO YOUR DATA OR PROGRAMS DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS OR DEVICES USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND PAYABLI’S REASONABLE CONTROL.
(b) PAYABLI EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE, ARISING FROM OR RELATED TO: (I) YOUR FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE YOUR ACCOUNT(S); (II) FRAUDULENT TRANSACTIONS PROCESSED THROUGH YOUR ACCOUNT(S); (III) DISRUPTION OF PAYABLI SERVICES, SYSTEMS, SERVER OR WEB SITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (IV) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A THIRD PARTY SERVICE PROVIDER OR AFFILIATE PARTNER, OR AQUIRING BANK; OR (V) UNAUTHORIZED ACCESS TO DATA, CUSTOMER DATA INCLUDING BUT NOT LIMITED TO, CREDIT CARD NUMBERS AND OTHER PERSONALLY IDENTIFIABLE INFORMATION, TRANSACTION DATA OR PERSONAL INFORMATION BELONGING TO PAYABLI, YOU OR ANY THIRD PARTY.
(c) PAYABLI EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS FOR THE LEGITIMACY OF ORDERS FORWARDED FROM YOU AND FOR ANY AND ALL CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM CONCLUSIONS DRAWN FROM THE DATA PROVIDED BY ANY SERVICES PROVIDED BY PAYABLI, OR ANY SYSTEM OR PROGRAM ASSOCIATED THEREWITH OR THE LIMITATION OF THE FUNCTIONING OF ANY PAYABLI SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH WHETHER IT IS OWNED BY PAYABLI OR OFFERED THROUGH A THIRD PARTY SERVICE PROVIDER OR OTHER ENTITY.
13.2. Payabli Limitation of Liability
(a) UNDER NO CIRCUMSTANCES WILL PAYABLI OR ANY OF ITS PARENTS, AFFILIATES OR VENDORS, OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR ITS PARENTS, AFFILIATES OR VENDORS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES HOWEVER OR WHENEVER ARISING, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT, INCLUDING NEGLIGENCE, CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) PAYABLI’S TOTAL LIABILITY TO YOU, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO ANY PAYABLI PRODUCTS OR SERVICES, SHALL NOT EXCEED THE AGGREGATE COMPENSATION PAYABLI RECEIVED FOR PROVIDING THE PAYABLI SERVICES TO YOU DURING THE THIRTY (30) DAYS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $1,500.00 USD, WHICHEVER IS LESS.
14. INDEMNIFICATION
14.1 Indemnification
(a) Payabli shall defend, indemnify and hold You and any of Your officers, directors, agents and employees harmless from and against any and all third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by You, arising out of or relating to any alleged infringement of a U.S. patent of any other entity or person by Payabli.
(b) Payabli’s obligations in Section 14.1.a do not apply if Payabli Services or portions or components thereof (a) are modified by persons or entities other than Payabli if the alleged infringement relates to such modification; (b) are combined with other products, processes or materials not supplied or recommended by Payabli where the alleged infringement relates to such combination, or (c) continue to be used after Payabli has made a non-infringing version available to You (collectively, “Your Faults”). If Payabli Services or any component thereof becomes, or in Payabli’s opinion is likely to become, the subject of a claim of infringement, then You shall permit Payabli, at Payabli’s sole option and expense, either to (i) procure for You the right to continue using the Payabli Services as permitted in this Agreement, or (ii) replace or modify the affected Payabli Services or infringing component so that it becomes non-infringing. If, after using commercially reasonable efforts, Payabli is unable to cure the infringement, either party may terminate this Agreement upon notice to the other, as provided in Section 10. Notwithstanding the above, Payabli’s total liability shall not exceed the amount as stated in Section 13.2.b. THIS SECTION 14.1.b STATES THE ENTIRE LIABILITY OF PAYABLI TO YOU WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY PAYABLI SERVICES.
14.2 Indemnification by You You shall defend, indemnify, and hold harmless Payabli and its Affiliate Partners, Third Party Service Providers, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by Payabli, arising out of or relating to (a) any breach or alleged breach by You of any representation, warranty, or obligation of You set forth in this Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by You or any of Your employees, agents or customers; (c) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by You to Payabli; (d) payment card transactions submitted by You to Payabli and rejected by Payabli or an issuing bank; (e) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from Your Fault; (f) claims by Your customers, including, without limitation, claims relating to the disclosure of consumer data; (g) any alleged or actual violation by You of any applicable laws, regulations or rules of (i) the Credit Card Associations; (ii) the Gramm Leach Bliley Act; (iii) or any regulatory body or agency having jurisdiction over the subject matter hereof; or (h) any violation of Payabli’s then current policies or guidelines. In the event You cause fines and/or penalties to be charged to Payabli by the Credit Card Associations or any other entity, you agree to immediately reimburse Payabli for said fines and penalties.
14.3 Indemnification Procedure The obligations of each party (“Indemnitor”) under this Section 14 to defend, indemnify and hold harmless the other party (“Indemnitee”) shall be subject to the following: (a) Indemnitee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indemnitor of its obligations under this section to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to clause (b) above, Indemnitee may participate in the defense of any such claim or suit at its own expense. Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice Indemnitee in any way.
14.4 Exceptions If You are an agency or instrumentality of a state of the United States and are precluded by the law of Your state from entering into indemnification obligations, then the obligations under Sections 14.2 and 14.3 shall apply only to the extent permitted by such state law.
15. GENERAL PROVISIONS
15.1 Non-exclusivity Each party acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein.
15.2 Notices All notices to You shall be given electronically, sent to the electronic mail address provided by or for You during registration for the Payabli Services and/or posted in the Merchant Control Panel of Your Account. Any termination notice to Payabli shall be given electronically by sending an e-mail to jo@payabli.com from within the Merchant Control panel of Your account. All other notices to Payabli shall be given electronically to jo@ccisv.com with a written copy to Centavo Inc. Legal Department, 1031 S. Broadway , Los Angeles, CA 90015 or to (fax), Attention: General Counsel. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid. All communications with Payabli will be made electronically, as outlined in the Payabli Electronic Communications Policy, available at //https:www.payabli.com.
15.3 Relationship of the Parties The parties are independent contractors and nothing in this Agreement shall make them joint venturers, partners, employees, agents or other representatives of the other party. Neither party shall make any representation that suggests otherwise. You further recognize that if you contracted for the Payabli Services with an Affiliate Partner or Third Party Service Provider, such provider is an authorized reseller of Payabli only and is not a joint venturer, partner, or agent of Payabli.
15.4 Assignment You will not have the right or the power to assign any of Your rights or delegate the performance of any of Your obligations under this Agreement without the prior written consent of Payabli, including in the case of a merger. Payabli will have the right to assign this Agreement to its successors and/or assigns, subsidiaries, affiliates, Affiliate Partners and/or Third Party Service Providers.
15.5 Amendment and/or Modifications No amendment, modification, or change to any provision of this Agreement, nor consent to any departure by either party therefrom, will in any event be effective unless the same will be in writing and signed by the other party, and then such consent will be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing, Payabli may amend this Agreement at any time upon written or electronic notice or post notice on its Web site located at www.payabli.com to You of not less than ten (10) days prior to the effective date of such amendment; provided that the addition or change of service fees, will become effective upon at least thirty (30) days’ notice. If You do not agree to such amendments, your sole remedy is to immediately terminate this Agreement upon written notice to Payabli.
15.6 Waiver The failure of any party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.
15.7 Dispute Resolution Any dispute or claim arising out of or relating to this Agreement, except claims involving intellectual property and claims for indemnification, will be resolved by binding arbitration. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) rules, as modified by this Agreement, and will take place in Chicago, Florida, unless the Parties mutually agree to hold the proceedings elsewhere. This Agreement evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. An arbitrator may not award relief in excess of or contrary to what this Agreement provides or order consolidation or arbitration on a class wide or representative basis, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither Party may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. All administrative fees and expenses will be divided equally between the Parties, but each Party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration. IF FOR ANY REASON THIS ARBITRATION CLAUSE IS DEEMED INAPPLICABLE OR INVALID, THE PARTIES WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE ANY CLAIMS ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. No action, regardless of form, arising out of or in conjunction with the subject matter of this Agreement, except for claims involving intellectual property and claims for indemnification, may be brought by either Party more than one (1) year after the cause of action arose.
15.8 Severability;Headings If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement.
15.9 Force Majeure Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services or other catastrophes or any other occurrences which are beyond such parties’ reasonable control (each a “Force Majeure Event”), provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event.
15.10 Governing Law;Jurisdiction This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Florida, without reference or giving effect to its conflicts of law principles. You hereby irrevocably consent to the personal jurisdiction of and venue in the state and federal courts located in DuPage County, Florida with respect to any action, claim or proceeding arising out of or related to this Agreement and agree not to commence or prosecute any such action, claim or proceeding other than in such courts, except as otherwise provided in Section 15.7 above.
15.11 Entire Agreement This Agreement together with all of Payabli’s policies referenced herein sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Agreement. You acknowledge that this Agreement reflects an informed, voluntary allocation between Payabli and You of all risks (both known and unknown) associated with Payabli Services.
15.12 Survival The provisions of this Agreement relating to any fees or other amounts owed, payment of finance charge on unpaid fees, confidentiality, warranties, limitation of liability, indemnification, governing law, severability, headings and this paragraph shall survive termination or expiration of this Agreement.
Appendix A – PAYABLI SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA Agreement”) sets forth the SLA applicable to the various Payabli Services ordered by You and provided through Payabli. This SLA provides Your sole and exclusive remedies for any Service interruptions, deficiencies, or failures of any kind. If such remedies include service credits, the parties agree that such credits constitute liquidated damages. No otherwise applicable SLA, including any remedies hereunder, shall apply with respect to any Excluded Events.
The following Service Level Targets apply to the Services.
AVAILABILITY Service Level Target
For transaction processing services, this SLA provides that the Payabli Application will be available 99.5% of the time (averaged over the calendar month). You will be eligible for service credits as set forth in the following table if this Availability Target is not met due to Outages.
Cumulative Duration of Outages within a Calendar
Month which exceed the Availability Target
Credit
10 minutes through 60 minutes
1/30th of MRFC for Affected Service
Each full hour in excess of 60 minutes
1/30th of MRFC for Affected Service
LATENCY Service Level Target
This SLA provides for monthly average response time Latency as set forth in the following table. If the monthly average Latency through the Payabli Application exceeds the Targets set forth in the following table, You will be eligible for a service credit of 3/30th of the applicable MRFC for the Affected Service.
PAYABLI Application Latency
3 seconds
Definitions
“MRFC” Monthly Recurring Fixed Charge means any and all fees You are obligated to pay to Payabli including Your monthly commitment and fixed Service charges.
“Affected Service” means only the portion of a Service actually impacted by the relevant Service Level Target.
“Availability” means the percentage of time during a month in which the Payabli application is not subject to an Outage.
“Latency” means the monthly average time it takes for a transaction to travel through the relevant portion of the Payabli Application excluding transaction settlements and any time waiting for a response from a third party.
“Outage” means any period of at least one minute during which the Payabli Application is completely unavailable or inaccessible for reasons other than an Excluded Event. An Outage begins when Payabli opens the relevant trouble ticket and ends at the earlier of the restoration of the Affected Service or when the ticket is closed. All Outage measurements will be rounded to the nearest one minute increment.
“Payabli Application” means the components owned and operated by Payabli excluding any components that are not owned and operated directly by Payabli.
“Excluded Events” means any event that adversely impacts the Service that is caused by (a) the acts or omissions of You, Your employees, customers, contractors or agents; (b) the failure or malfunction of equipment, applications or systems not owned or controlled by Payabli; (c) Force Majeure events; (d) scheduled maintenance, alteration or implementation; (e) any suspension of Service pursuant to the Merchant Service Agreement; or (f) the unavailability of Your required personnel, including as a result of failure to provide Payabli with accurate, current contact information.
Process
You must request any credit due hereunder within 30 days of the conclusion of the month in which it accrues. You waive any right to credits not requested within this 30 day period. Credits will be issued once validated by Payabli and applied toward the invoice which You receive no later than two months following Your credit request. All performance calculations and applicable service credits are based on Payabli records and data.
Limitations
This SLA does not apply to any Excluded Events, as defined in this SLA. You will not be eligible to accrue any otherwise applicable service credits: (a) during any period in which You are in violation of the Payabli Merchant Service Agreement or is past due on any amounts owed in connection with the Payabli Services; and (b) before the start of the first full calendar month following the Billing Commencement Date for the Affected Service. You may not carry over to subsequent months any service credits subject to the limits or exclusions of this SLA.
In no event will the credits accrued in a single month exceed, in the aggregate across all service levels and events: thirty percent (30%) of the invoice amount for the Affected Service.
You acknowledge that Payabli manages its throughput in part on the basis of Your utilization of Service and that changes in such utilization may impact Payabli’s ability to manage throughput. Therefore, notwithstanding anything else to the contrary, if You significantly change Your utilization of the Service and such change creates a material and adverse impact on the volume through the Payabli Application, as determined by Payabli, Payabli may either modify the applicable charges or terminate the Affected Services.
Appendix B – VALUE-ADDED SERVICES
In the event You enroll in, and Payabli provides You with, Value-Added Service(s), You agree as follows:
1. Expansion of Services
The terms “Services” and “Payabli Services,” as each is defined in the Agreement, shall include each of the Value-Added Services. Each Value-Added Service is described on the Payabli Web site and in other Services Documentation provided to You from time to time. All terms of the Agreement applicable to the Payabli Services shall be applicable to each Value-Added Service.
2. Your Obligations
In addition to Your obligations set forth in the Agreement, You agree to pay the Value-Added Service Fees, in accordance with Section 8 and Section 9 of this Agreement, in the amounts provided in the Fee Schedule provided to You by Payabli and/or, if applicable Affiliate Partner. The Fee Schedule is hereby incorporated into the terms of this Agreement by reference and/or in the Value-Added Service documentation page accessed during enrollment in the applicable Value-Added Service. By checking the “I ACCEPT” button next to a Value-Added Service Fee schedule, You acknowledge Your acceptance of such fees, Your obligation to pay same and the terms and conditions applicable to the Value-Added Service.
3. Your Warranty
You represent, warrant, and covenant to Payabli that Your use of the Value-Added Services and any information gathered by You in connection with use of a Value-Added Service: (a) will be fully compliant with all applicable local, state and federal laws, rules, and regulations; (b) will be in accordance with all applicable Services Documentation; and (c) will not be used for any purpose other than in connection with the Value-Added Service.
4. Acknowledgement
You understand, acknowledge, and agree that (a) You will be solely responsible for ALL transactions processed through Your Payabli account(s), regardless of whether such transactions are monitored by a Value-Added Service; (b) You will be solely responsible for Your use of the Value-Added Service including, without limitation (i) configuring, maintaining and updating, as You deem necessary, the applicable settings for Your Value-Added Service account; and (ii) with respect to each Transaction processed via your account(s), and regardless of any data, analysis, or information generated or not generated by the Value-Added Service, as applicable, determining the appropriate action for each such Transaction (i.e., approve, void, decline, reject); (c) under certain circumstances, it may be necessary for Payabli to adjust Your Value-Added Service security settings, with or without notice to You, to guard against fraudulent activity and that such actions may inadvertently cause legitimate transactions to expire, be rejected or delayed; and (d) Payabli shall not be liable under any theory of law, including negligence, for any loss associated with any of the foregoing.
5. PAYABLI WARRANTY
IN ADDITION TO ANY LIMITATIONS OR DISCLAIMERS SET FORTH IN THE AGREEMENT, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT THE VALUE-ADDED SERVICES ARE PROVIDED TO YOU BY PAYABLI “AS IS” AND THAT PAYABLI DOES NOT REPRESENT OR WARRANT THAT THE VALUE ADDED SERVICES OR ANY OTHER TECHNOLOGY, CONTENT, INTELLECTUAL PROPERTY, OR ANY OTHER INFORMATION, DATA, PRODUCTS, OR SERVICES, WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE, AND THAT YOUR SOLE REMEDY FOR ANY ISSUE RELATED TO OR ARISING FROM THE VALUE ADDED SERVICES, AND PAYABLI’S SOLE LIABILITY FOR SAME, WILL BE TO TERMINATE THIS AGREEMENT AND DISCONTINUE YOUR USE OF THE VALUE-ADDED SERVICES.
6. Risk, Security and Disclosure
The risk and security suggestions provided to You in the Services Documentation for any of the Value-Added Services are solely for illustrative purposes to show best industry practices, and You shall be solely responsible for choosing the appropriate settings and parameters for Your account.
7. Termination
If Your Agreement is terminated for any reason, Payabli shall immediately cancel access to Your Value-Added Service account. It is Your responsibility to download all reports prior to the effective date of any such termination as such reports will not be available following the termination date.
8. Incorporation by Reference
The Value-Added Services Fee Schedules are incorporated herein by reference.
The Payabli Payment Services Agreement found at https://www.payabli.com/documents-payabli-sub-merchant-agreement/ is incorporated herein by reference for those merchants having a direct agreement with Payabli.
The Payabli Merchant Services Terms and Conditions found at https://www.payabli.com/documents-payabli-tri-party-tscs/ is incorporated herein by reference for those merchants whose transaction volumes require an agreement between themselves, Payabli’s Acquirer, and Payabli.
9. Third Party Programs
Payabli makes no warranty, express or implied, with regard to any third party services or software.
10. Definitions
All terms and conditions of the Agreement not specifically modified in this Appendix B shall remain unchanged and in full force and effect. Unless separately defined herein, capitalized words used in this Appendix as defined terms shall have the same meanings herein as in the Agreement.
Appendix C – Prohibited Activities.
You agree that You will not at any time conduct Your business in any manner that directly or indirectly offers, sells, leases, licenses or displays, delivers, advertises, recommends, or promotes any product(s), service(s), data, information, image(s), text and/or any content which:
(i) is unlawful or violates any applicable local, state, federal, national or international law, statute, ordinance, or regulation including, without limitation, Credit Card Association rules, consumer protection laws, unfair competition, antidiscrimination or false advertising;
(ii) is associated with any illegal form of adult, sexually oriented, or obscene materials or services, including without limitation, any material clearly designed to sexually arouse the viewer/reader with images of children less than 18 years old and/or escort services;
(iii) infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party, including, but not limited to, the unauthorized copying and posting of trademarks, pictures, logos, software, articles, musical works and videos;
(iv) is threatening, abusive, harassing, defamatory, obscene, libelous, slanderous, deceptive, fraudulent, invasive of another’s privacy, tortuous, or otherwise violate Payabli’s rules or policies;
(v) victimizes harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
(vi) impersonates any person or entity;
(vii) contains harmful content, including, without limitation, software viruses, Trojan horses, worms, time bombs, cancel bots, spy-ware, or any other files, software programs, or technology that is designed or intended to disrupt, damage, surreptitiously intercept or expropriate the Services or any system, program, data or personal information or limit the functioning of any software, hardware, or equipment or to damage or obtain unauthorized access to any data or other information of any third party;
(viii) violates any U.S. export or import laws, including, without limitation, the Export Administration Act and the Export Administration Regulations maintained by the Department of Commerce;
(ix) offers or disseminates fraudulent goods, services, schemes, or promotions (i.e., make money fast schemes, chain letters, pyramid schemes) or engage in any unfair deceptive act or practice;
(x) is associated with any form of illegal gambling or illegal lottery type services;
(xi) is associated with illegal telecommunications or illegal cable television equipment or illegal satellite equipment;
(xii) is associated with electronic wallets (i.e., “e-wallets”) or any similar payment type; or
(xiii) is associated with the sale of (a) the online sale of any controlled drug that requires a prescription from a licensed practitioner unless you are authorized by the National Association of Boards of Pharmacy to offer such products as a Verified Internet Pharmacy Practice Site and only if such a prescription has been issued by the practitioner after a bona fide examination of the patient; or (b) any over-the-counter drug, unless the sale of such product, without a prescription, has been approved by the Food & Drug Administration; or (c) nonprescription drugs that make false or misleading treatment claims or treatment claims that require FDA approval; or (d) any drug or controlled substance that Payabli believes to be or may become harmful, unlawful, or prohibited. Payabli requires sellers of prescription drugs to abide by all laws applicable to both the buyer and seller and may require you to provide evidence of compliance with these requirements. In addition, due to the complexities of current laws regulating the importation of controlled drugs into the United States, you may not use the Services to sell prescription drugs that are imported into the United States from an international location. The foregoing list is a non-exhaustive list of prohibited goods and services.
Last updated: August 12, 2024
PLEASE READ SECTIONS 33 AND 34 CAREFULLY AS THEY RELATE TO ARBITRATION AND CLASS ACTIONS
This agreement is between “you” and Centavo, Inc. d/b/a Payabli (“Payabli,” “we,” “our,” “us”) and it governs your use of our payment processing services (“Service(s)”). We do, however, utilize a third-party vendor (“Processor”) in certain circumstances to assist us in providing portions of the Services to you.
| Printed Monthly Statement Fee (per month – if requested) | Up to $10 |
| Intensive Investigation Fee (for reasonable time spent in excess of three hours to respond to requests related to you from Sponsor Bank, the Card Brands, government and other regulatory bodies including, but not limited to, investigation of high value chargebacks, subpoenas, levies or temporary restraining orders) | $180 per hour |
| ACH Stop Payment/Customer Cancellation Fee (per item) | $20.00 |
AMERICAN EXPRESS TERMS
Important Note: The following sections apply only if you accept American Express Cards. If there is a conflict between any of the following sections and any other section of this agreement as it applies to American Express Cards, the following sections will govern. For clarity, Sponsor Bank does not sponsor American Express transactions.
REFUND POLICY. Your refund policies for American Express-related Transactions must be at least as favorable as your refund policy for purchase with any other Card, and the refund policy must be disclosed to cardholders at the time of purchase and in compliance with applicable Law. You may not bill or attempt to collect from any cardholder for any American Express-related Transaction unless: (a) a chargeback has been exercised, (b) you have fully paid for such chargeback, and (c) you otherwise have the right to do so.
AMERICAN EXPRESS COMPLIANCE. You authorize Payabli and/or its Processor and affiliates to submit American Express Transactions to, and receive settlement on such Transactions from, American Express on your behalf. You agree to comply with all applicable Laws, Rules and other regulations, including the American Express Merchant Operating Guide requirements, which are incorporated into this agreement by reference as if they were fully set forth in the agreement. The American Express Merchant Operating Guide may be viewed at: www.americanexpress.com/merchantopguide. You shall abide by and fully comply with DSR and PCI DSS. A copy of the American Express Data Security Requirements (“DSR”) can be obtained online at www.americanexpress.com/dsr. You acknowledge and agree to: (i) ensure data quality and that Transaction Data and customer information are processed promptly, accurately, and completely, and in compliance with the American Express Technical Specifications; (ii) report all instances of a Data Incident immediately to Payabli after discovery of an incident;, and (iii) be aware of and adhere to privacy and data protection Laws; and (iv) provide specific and adequate disclosures to Card-members regarding collection, use, and processing of personal data. You certify that all indebtedness arising from Transactions will be for bona fide sales of goods and services (or both) at your business locations and free of liens, claims, and encumbrances other than ordinary sales taxes.
HIGH CHARGE VOLUME SPONSORED MERCHANTS. In the event that your Estimated Annual Charge Volume becomes $1,000,000 USD or greater, you will become a direct Card-accepting merchant under the standard American Express acceptance program and cease to be a sponsored merchant under Payabli. As a direct Card-accepting merchant, you will be bound by the then-current American Express Card acceptance agreement and American Express will set pricing and other fees payable by you for card acceptance.
PROCESSING RESTRICTIONS. You are prohibited from processing Transactions or receiving payments on behalf of, or (unless required by law) re-directing payments to any other party. Provided, however, that you may sell and assign future American Express-related Transaction receivables to Payabli, its affiliated entities and/or any other cash advance funding source that partners with Payabli or its affiliated entities, without consent of American Express. Notwithstanding the foregoing, Payabli prohibits you from selling or assigning future American Express-related Transaction receivables to any third party other than its Processor.
THIRD PARTY BENEFICIARY RIGHTS. You understand and covenant that you are not a third-party beneficiary under Payabli’s or its Processor’s agreement with American Express, including all schedules and exhibits, or the American Express Rules. You acknowledge and agree that American Express is a third-party beneficiary under this agreement between you and Payabli. This means American Express has the rights, but not the obligation, to enforce the terms of this agreement against you.
AMERICAN EXPRESS LIABILITY. You acknowledge and agree that in no event shall American Express, its affiliates, agents, successors, or assigns be liable to you for any damages, losses, or costs incurred, including incidental, indirect, speculative, consequential, special, punitive, or exemplary damages of any kind (whether based on contract, tort, including negligence, strict liability, fraud, or otherwise, or statutes, regulations, or any other theory), arising out of or in connection with the agreement.
MERCHANT WEBSITE DISPLAY REQUIREMENTS. You will adhere to the following website information display guidelines in the event you have a website and/or operate an e-commerce business (“Merchant Website”). The Merchant Website must display the following: (a) An accurate description of the goods/services offered, including the currency type for the Transaction. Note: Transaction currency must be in U.S. Dollars; (b) your physical address in the U.S.; (c) an email address or telephone number for customer service disputes; (d) return/refund policy; (e) a description of your delivery policy (e.g., no overnight delivery); (f) a description of your security practices (e.g., information highlighting security practices you use to secure Transactions on your systems, including Transactions conducted on the Internet); (g) a statement of known export restrictions, tariffs, and any other regulations, (h) a privacy statement regarding the type of personal information collected and how the information is used. Additionally, you must provide to customers the option to decline being included in marketing campaigns or having their personal information included on lists sold to third parties.
COMMUNICATION. (a). You agree that Payabli may disclose to American Express information from the agreement and otherwise regarding you and your Transactions, and that American Express may use such information: (i) to perform its responsibilities in connection with American Express Card Acceptance; (ii) to promote the American Express Network; (iii) to perform analytics and create reports; (iv) for any other lawful business purposes including commercial marketing communications purposes within the parameter of the Program Agreement, (v) for important transactional or relationship communication from American Express, and (vi) to screen and/or monitor you in connection with American Express marketing and administrative purposes; (b) you agree you may receive messages from American Express, including important information about American Express products, services, and resources available to its business. These messages may be sent to your mailing address, phone numbers, email addresses or fax numbers. You may be contacted at your wireless telephone number and the communications sent may include autodialed short message service (SMS or “text”) messages or automated or prerecorded calls. You may opt-out of receiving future commercial marketing communications from American Express by contacting Payabli; however, you may continue to receive marketing communications while American Express updates its records to reflect this choice. Opting out of commercial marketing communications will not preclude you from receiving important transactional or relationship messages from American Express.
TERMINATION. (a) Payabli has the right to terminate your participation in American Express Card Acceptance immediately upon written notice to you: (i) if you breach any of the provisions of this agreement applicable to American Express Card Acceptance, including, but not limited to, the American Express Merchant Operating Guide; or (ii) if Payabli has cause to believe you are engaged in illegal or fraudulent activity; or (iii) upon American Express’s request; (b) You may opt out of accepting American Express at any time by written request to Payabli without directly or indirectly affecting your rights to accept other Cards; (c) in the event your participation in American Express Card Acceptance is ended for any reason, you must immediately cease all use of and remove all American Express branding and marks from your business location(s), website(s) and anywhere else they are displayed.
Last updated: February 7, 2024
These merchant services terms and conditions (“Terms and Conditions”) are for merchant card payment processing services among the merchant (“Merchant”) that signed the merchant services application (“Merchant Application”), Wells Fargo Bank, N.A. (“Member Bank”), and Payabli, Inc. (“Payabli”). The Merchant Application and the Terms and Conditions are part of the “Merchant Agreement” as defined below. Subject to Card Brand Rules (defined below) , Payabli and Member Bank reserve the right to allocate duties and obligations amongst themselves as they agree appropriate in their sole discretion, and Member Bank or Payabli may jointly or individually assert or exercise any rights or remedies provided hereunder. If Merchant wishes to address any act or omission by, or make or bring any claim or action against, Member Bank or Payabli relating to this Merchant Agreement, it shall first discuss such issue with Payabli prior to making or bringing any claim or action against Member Bank (in which case Payabli shall address the issue as agreed with Member Bank). Member Bank is responsible for sponsoring Merchant with Visa and Mastercard, and for settlement of Merchant sales funds. Unless otherwise noted, all other products, services and obligations to Merchant are the sole responsibility of Payabli.
Member Bank, as a member of Visa® U.S.A. Inc. (“Visa”) and Mastercard® International Incorporated (“Mastercard”), provides transaction processing and other services and products in connection with financial services provided by Visa and Mastercard. Payabli provides transaction processing and other services and products in connection with financial services provided by American Express® Travel Related Services Company, Inc. (“American Express”), and DFS Services LLC (“Discover”). If Merchant elects and is approved to participate in the American Express OptBlue Program, Merchant agrees to comply with the American Express OptBlue Merchant Operating Guide, which may be accessed at www.americanexpress.com/merchantopguide. Visa, Mastercard, American Express, and Discover are collectively defined as the “Card Brands” and their cards are each a “Card”. If elected by Merchant, Payabli will settle American Express and Discover transactions. Member Bank does not sponsor Payabli into the American Express network and Discover network, is not providing or agreeing to provide Merchant any services hereunder with respect to American Express and Discover transactions, and has no responsibility or liability to Merchant for American Express and Discover transactions.
Payabli, as an agent of Member Bank, provides payment card processing services. Merchant is engaged in the business of selling goods and services, and desires that Payabli and Member Bank provide the services described in the Merchant Agreement (the “Merchant Services”) on the terms and conditions of this Merchant Agreement.
1. MERCHANT’S APPLICATION AND INFORMATION. By completing the Merchant Application Merchant applies for the Merchant Services. In their sole and absolute discretion, Payabli and/or Member Bank may accept or reject Merchant’s Application. Merchant may present Transactions to Payabli only for the activities and in the volumes described on the Merchant Application. “Transaction” means a purchase by Card of goods or services from Merchant or a refund by Merchant to a Card done through Merchant Services. The earlier date of the presentation of the first Transaction, including any test Transaction, by Merchant to Payabli or the date Payabli approves the Merchant Application signifies the effective date of the Merchant Agreement (“Effective Date”). By either Merchant’s signature on the Merchant Application or Merchant’s processing a Transaction (including a test Transaction) with Payabli, Merchant affirmatively accepts and agrees to be bound by the Merchant Agreement. If Merchant fails to submit Transactions for processing within 120 days after the Effective Date for any reason other than Payabli’s failure to perform its obligations under the Merchant Agreement, then Merchant shall pay to Payabli as damages (and not as a penalty) $100 for each 30- day period in which Merchant processes no Transactions. Damages shall begin accruing as of the 121st day following the Effective Date and shall stop accruing as soon as Merchant begins processing Transactions under this Merchant Agreement.
2. MERCHANT AGREEMENT; INCORPORATION OF ADDITIONAL TERMS AND PROVISIONS.
2.1. The exhibits to these Terms and Conditions, as amended from time to time, are part of these Terms and Conditions, as are the Merchant Application, fee schedule, and the Card Brand Rules, and are hereinafter individually and collectively referred to as the “Merchant Agreement.” “Card Brand Rules” means the by- laws, operating regulations, rules, policies, and procedures of the Card Brands, as in effect from time to time. Without limiting the foregoing, this Agreement includes the provisions required by: (a) the Visa International Operating Regulations relating to the Merchant Chargeback Monitoring Program, the Merchant Agreement Requirements, and Merchant Card Acceptance (the “Visa Regulations”); and (b) section 5.1 and sections 5.6 through 5.12 of the Mastercard Rules (the “Mastercard Rules”); and (c) chapter 4, “Transaction Processing”, chapter 11, “Chargebacks and Inquiries,” and chapter 12, “Specific Industries” of the American Express Merchant Operating Guide, and Exhibit C “American Express Card Acceptance”. Copies of the Visa Regulations (http://corporate.visa.com/about-visa/our-business/operating-regulations.shtml) and the Mastercard Rules (http://www.Mastercard.com/us/merchant/pdf/BM-Entire_Manual_public.pdf) are available for review online. The American Express Merchant Operating Guide, which is a summary of the above-referenced American Express regulations, is www.americanexpress.com/merchantopguide. Merchant shall periodically review the contents of the Card Brand Rules to ensure it remains in compliance with them.
3. PROCEDURES FOR TRANSACTIONS.
3.1. In accepting Cards for the purchase of Merchant’s goods or services, Merchant shall comply with the requirements of the Merchant Agreement, including but not limited to the Card Brand Rules, as the same are revised from time to time.
3.2. Submission of Valid Transactions.
3.2.1. Merchant will submit to Payabli a Transaction only if the Transaction is made or approved by the cardholder who is issued the Card used for the Transaction. The burden of verifying the identity of the cardholder and the cardholder’s authority to initiate a Transaction rests solely with Merchant. Merchant will not submit directly or indirectly: (a) any Transaction that Merchant knows or should have known to be fraudulent or not authorized by the cardholder; (b) any Transaction that results from a transaction outside of Merchant’s normal course of business, as described on the Merchant Application; or (c) any Transaction using a Card issued to Merchant or Merchant’s business owners, family members, or principals.
3.2.2. If at any time the volume of Transactions substantially exceeds or decreases from the projected annual volume stated on the Merchant Application, or if at any time Payabli suspects fraud, money laundering or violations of the Card Brand Rules, Payabli may, in its sole and absolute discretion and in addition to other remedies that the Payabli may have: (a) refuse to process the excessive or suspect Transactions; (b) process the Transactions and retain the funds received from processing until such time as the excess or suspect Transactions are found to be valid or invalid and processed in accordance with the Card Brand Rules; (c) suspend processing and/or terminate the Agreement; or (d) amend the Merchant Agreement to protect the interests of Payabli.
3.3. Payments to Merchant for Valid Transactions.
3.3.1. Member Bank and Payabli will provide provisional credit to Merchant for each undisputed and valid Transaction that Merchant submits to Payabli by crediting Merchant’s Payabli Account, provided Member Bank and Payabli have received settlement for the valid Transaction through the interchange procedures specified by the relevant Card Brand. Member Bank and Payabli are not obligated to provide provisional credit to Merchant for Transactions submitted that are not valid Transactions, and may suspend or discontinue any provisional credit in Member Bank’s and/or Payabli’s sole and absolute discretion, including for any reason that would justify termination of the Merchant Agreement. Each provisional credit from Member Bank and Payabli to Merchant will be subject to adjustment, including revocation, upon Payabli’s further review and verification. Provisional credit to Merchant for a Transaction disputed by a cardholder for any reason is not final.
3.3.2. Member Bank is responsible for providing settlement funds to Merchant, and Payabli shall not have access to or hold settlement funds. Member Bank deposits Transaction proceeds into a non-interest- bearing, aggregated account at Member Bank in the name of Member Bank for the benefit of all Payabli’s merchant customers. The subaccount shown in Payabli’s software for tracking Merchant’s funds in the aggregated account is Merchant’s “Payabli Account”. Merchant’s Payabli Account is not an actual account at Member Bank. Funds will remain in the Merchant’s Payabli Account until: (a) such funds are released by Merchant at its discretion, as evidenced on Payabli’s website; or (b) Merchant informs Payabli to release such funds to the bank account designated by Merchant in accordance with the Electronic Funds Transfer (“Designated Account”).
3.3.3. Merchant may utilize multiple Payabli Accounts to allow for easier reporting of Transactions. Such additional Payabli Accounts require approval by Payabli and are subject to the terms of this Merchant Agreement. Merchant is responsible for any additional fees or costs associated with having multiple Payabli Accounts. These additional Payabli Accounts collectively count toward underwriting limits for Merchant, as such collective limits are established by Member Bank.
3.3.4. Merchant will promptly provide Payabli or Member Bank with any information it requests in response to an inquiry from a Card Brand. A Card Brand may make an inquiry when it needs information about a disputed Transaction. In order to be able to respond to an inquiry, Merchant must maintain records and follow business practices that are in accordance with the Card Brand Rules.
3.3.5. “Chargeback” means a Transaction returned by a Card issuer to Member Bank. Merchant must not reenter or reprocess any Transaction that has been charged back. Instead, Merchant must allow the Chargeback process to proceed to its conclusion. If Merchant disagrees with a Chargeback, Merchant may make a reversal request pursuant to applicable Card Brand Rules. Merchant acknowledges that regardless of its refund or return policy, Chargebacks will be handled in accordance with this Merchant Agreement and Card Brand Rules regarding returns and Chargebacks. Merchant is liable to Payabli and Member Bank for the amount of all Chargebacks, Card Brand fines, and associated fees. Merchant authorizes Payabli and Member Bank to deduct, recoup, or offset from incoming Transactions and to debit Merchant’s Payabli Account, the Merchant Reserve Account, and the Billing Reserve described below to recover any Chargeback. Member Bank may suspend accepting Transactions or releasing funds represented by Transactions to Merchant until Merchant reimburses Member Bank for all unpaid Chargebacks.
3.3.6. Merchant is liable to Payabli and Member Bank for the amount by which credit Transactions processed on any day exceed valid Transactions submitted on that day. Payabli and Member Bank may deduct the amount of any credit Transaction processed for Merchant in the same manner as it would a Chargeback.
3.4. Restrictions. Merchant may not (a) indicate or imply that the Card Brands, Payabli or Member Bank endorses any Merchant goods or services; (b) refer to a Card Brand, Payabli or Member Bank in stating eligibility for Merchant’s products, services or membership; or (c) use any marks, symbols or logos owned by any Card Brand, Payabli or Member Bank for any purpose other than those permitted in the Card Brand Rules, provided that any use of Payabli or Member Bank’s marks, symbols or logos shall be in accordance with and subject to any branding guidelines provided by Payabli or Member Bank. Merchant acknowledges that Member Bank and Payabli shall remain the sole and exclusive owners of their respective intellectual property and Confidential Information (defined below). Except to the extent expressly provided herein, no rights to Payabli or Member Bank’s intellectual property or Confidential Information are granted hereunder, and all rights therein are expressly reserved.
3.5. Authorizations
3.5.1. It is highly recommended that Merchant obtain the CVV2, CVC2 or CID information, as applicable, from each Card. However, Merchant must never store this value permanently. Merchant shall not submit an authorization on behalf of any third party.
3.5.2. Merchant shall obtain (using equipment meeting specifications determined by Payabli) an authorization for each Transaction in accordance with the terms of exhibit A.
4. MERCHANT’S WARRANTIES. Upon signing the Merchant Application, and each time Merchant submits a Transaction, Merchant represents and warrants that:
4.1. Merchant has abided by the Merchant Agreement, and all applicable laws and the Card Brand Rules;
4.2. Each statement made on the Merchant Application was true as of the date Merchant signed the Merchant Application agreeing to be bound by the Merchant Agreement;
4.3. There have been no materially adverse changes in information provided in the Merchant Application or in Merchant’s financial condition, or management;
4.4. Merchant does not do business under a trade name or style not previously disclosed in writing, and there has been no change in the nature of Merchant’s business or product lines that have not been previously disclosed to Payabli and Member Bank;
4.5. Each Transaction is genuine and arises from a bona fide sale of merchandise or services by Merchant, represents a valid obligation for the amount shown on the Transaction receipt, and does not involve the use of the Card for any other purpose;
4.6. Merchant has title to the Transaction and Transaction receipt, there are no liens or other encumbrances on it, and Merchant has the authority to convey the Transaction for processing;
4.7. No Transaction is subject to any set-off or counterclaim;
4.8. No Transaction has been previously presented for processing unless allowed by the Card Brand Rules;
4.9. Each statement on the Transaction receipt is true, and Merchant has no knowledge of facts that would impair the validity or collectability of the amount of the Transaction;
4.10.The person who executes the Merchant Application on behalf of Merchant has the full power and authority to execute the Merchant Application and to enter into the Merchant Agreement;
4.11. The Merchant Agreement is a legal, valid, and binding obligation of Merchant enforceable against Merchant in accordance with its terms;
4.12.Merchant shall submit Transactions only in accordance with the information contained in the Merchant Application and the Merchant Agreement;
4.13. Merchant has the power and authority to authorize the automatic funds transfer provided for in the Merchant Agreement;
4.14.The Designated Account is owned and controlled by Merchant and will be open at all times during the Term and as long as the Merchant Reserve Account and Billing Reserve (as described below) are in effect;
4.15.Merchant is not (a) a sanctioned person: (b) located in or operating under a license issued by a jurisdiction whose government has been identified by the U.S. Department of State as a sponsor of international terrorism under 22 U.S.C. 2371 or 50 U.S.C. App. 2405(j); (c) located in or operating under a license issued by a jurisdiction that has been designated as non-cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization of which the U.S. is a member; or (d) located in or operating under a license issued by a jurisdiction that has been designated by the U.S. Secretary of Treasury pursuant to 31 U.S.C. 5318A as warranting special measures due to money laundering concerns;
4.16.Merchant will immediately notify Member Bank and Payabli in writing of any material changes to any information provided herein including but not limited to a change in Merchant’s legal entity, location, business type, or the types of goods and/or services offered for sale by Merchant;
4.17.There is no action, suit or proceeding pending or, to Merchant’s knowledge, threatened that, if decided adversely, would materially impair Merchant’s financial condition or operations, or its ability to perform its obligations under this Merchant Agreement, or pay its debts;
4.18.Merchant complies fully with the Payabli Prohibited and Restricted Merchant policy included in the Payabli Credit Policy; and
4.19.Merchant shall ensure that only authorized individuals access Merchant’s Payabli Account to, among other things, effect transfers of funds to and/or from such account. Merchant shall be solely responsible for any loss that arises out of any unauthorized individual gaining access to Merchant’s Payabli Account using Merchant’s ID number and PIN, and shall indemnify, defend and hold Payabli and Member Bank harmless from and against any such loss, unless such unauthorized access is solely the fault of Payabli or member Bank.
5. CONFIDENTIALITY; DATA SECURITY.
5.1. Merchant will treat as confidential: (a) the terms of the Merchant Agreement; (b) all information or data, of whatever nature, relating to Payabli (including its operations, policies, procedures, accounts and personnel) accessed or used by or disclosed to Merchant in connection with the Merchant Agreement; (c) Payabli’s IRS W-9 form; and (d) all information or data that is proprietary to a third party (including Payabli’s customers and contractors) and that Payabli is obligated to treat as confidential, accessed or used by or disclosed to Merchant in connection with the Merchant Agreement (individually and collectively, “Confidential Information”). Merchant shall not use or disclose Confidential Information without Payabli’s prior written consent. Merchant may only disclose Confidential Information to Merchant employees who have a need to know such information in connection with Merchant’s performance hereunder and who are bound to confidentiality restrictions no less restrictive than those herein. Merchant shall exercise at least the same degree of care to maintain the confidentiality of Confidential Information that it uses for its own similar information, but in no event less than a reasonable degree of care. The foregoing obligations shall not apply to any information that (i) is received from any third-party source that is properly authorized to disclose it without restriction, (ii) is or becomes generally known to the public by publication or some other means other than a breach by Merchant or its employees of any agreement or confidentiality obligations, or (iii) is required by law to be divulged, provided that the request is proper and the disclosure does not exceed that which is required. In the case of (iii), Merchant will provide prior notice thereof and cooperate with Payabli to limit disclosure. Upon Payabli’s request, and upon termination or expiration of the Merchant Agreement, Merchant shall return or, only if requested by Payabli, destroy all Confidential Information in its possession or control. Merchant acknowledges that a breach of this section 5 may cause Payabli irreparable injury and that Payabli may have no adequate remedy at law. Accordingly, Payabli may seek provisional or injunctive relief in addition to any other rights or remedies.
5.2. “Merchant Servicer” means a third-party agent that: (a) is engaged by a Merchant; (b) is not a member of the Card Brands; and (c) has access to cardholder data, or processes, stores, or transmits Transaction data. Merchant must notify Payabli and receive Payabli’s approval prior to engaging any Merchant Servicer in connection with Merchant’s acceptance of Cards or the submission of Transactions to Payabli. Merchant shall provide Payabli at least 60 days’ advance written notice of Merchant’s election to use a Merchant Servicer. Member Bank and/or Payabli may individually approve or deny the use of a Merchant Servicer in their sole and absolute discretion and at any time. If a Merchant Servicer is required to certify, register, or act in any fashion pursuant to the Card Brand Rules, Merchant shall cause such Merchant Servicer to cooperate with Payabli in completing any steps required for registration, certification and/or action. Merchant is solely responsible for any and all applicable fees, costs, expenses and liabilities associated with such registration, certification and/or action. Payabli and Member Bank shall in no event be liable to Merchant or any third party for any actions or inactions of Merchant Servicer(s) used by Merchant, and Merchant expressly assumes all such liability.
5.3. The use of a Merchant Servicer or software or systems provided by a Merchant Servicer that has connectivity to the Internet poses an increased risk, and Merchant assumes all liability for such increased risks. If Merchant utilizes software or hardware with a connection to the Internet such hardware or software interacts in any capacity with the provision of services contemplated pursuant to this Merchant Agreement, Merchant is solely liable without limitation for any and all consequences of such interaction.
5.4. Merchant agrees and shall ensure that Merchant Servicers utilized by Merchant provide the same levels of security as those required of Merchant, and that such Merchant Servicers transmit data in accordance with: (a) the required format(s) of the Card Brands; (b) the Card Brand Rules; and (c) the requirements of Payabli and Member Bank. Merchant must have a written contract between itself and its Merchant Servicers that stipulates adherence to the provisions of such information security requirements. Merchant’s written contract with any such third party must contain provisions obligating the third party to comply with (to the extent applicable); (i) law, CISP, SDP, DISC, PCI DSS, PA-DSS, PIN and PED security requirements; (ii) all other Card Brand requirements pertaining to confidentiality and security and integrity of cardholder and Transaction data; (iii) all rules prohibiting storage of certain Transaction data; and (iii) all other applicable Card Brand Rules and the requirements of Payabli and Member Bank. Merchant will only allow Merchant Servicers to have access to cardholder data for the purposes that are authorized by the Card Brand Rules. Any fees, fines or liability assessments from actual or alleged noncompliance will be the sole liability of Merchant. Merchant shall indemnify and hold Member Bank and Payabli harmless against losses or damages arising from the acts or omissions of Merchant Servicers engaged by Merchant.
5.5. Merchant must immediately notify Member Bank and Payabli of any suspected or confirmed loss or theft of materials or records that contain cardholder account numbers or Transaction information. In the event of a suspected or confirmed loss or theft Merchant shall provide immediate access to all facilities, systems, procedures, equipment, and documents as may be deemed appropriate by Payabli and Member Bank or their designated representatives, regulators or auditors for inspection, audit, and copying as deemed appropriate by both Member Bank and Payabli in their individual sole discretion. Merchant shall be responsible for all costs associated with such inspection, audit, and copying however such costs may occur. Merchant shall make reasonable efforts to address and remedy the cause of the breach, intrusion, compromise or otherwise unauthorized access to cardholder account information.
5.6. Merchant authorizes Payabli to release its name and address to any third party whom Payabli determines needs to know such information in order for Payabli to perform the Merchant Services and who has requested such information.
5.7. Merchant will never (even in the event of including Merchant’s failure, bankruptcy, insolvency, or other suspension of business operations): (a) provide cardholder account numbers, personal cardholder information or Transaction information to anyone except Payabli, the Card Brands, or Merchant’s servicers or agents for the purpose of assisting Merchant in completing Transactions, or as specifically consented to by cardholder or required by law or in response to valid legal process; (b) retain or store Card magnetic stripe, CVV, CVV2, CVC2 or CID data (including track data) subsequent to authorization for a Transaction; or (c) release any cardholder information over the telephone under any circumstances. If Merchant’s business fails or ceases to exist, Merchant is required to return to Payabli all such information or provide proof of destruction of this information to Payabli.
5.8. Merchant agrees to establish security procedures to protect cardholder information and comply with the Visa Cardholder Information Security Program (CISP), MasterCard’s Site Data Protection (SDP) Program, Discover Information Security Compliance (DISC), American Express Data Security Requirements, and the Payment Card Industry (PCI) Data Security Standards. Detailed information about PCI DSS can be found at the PCI DSS Council’s Website: www.pcisecuritystandards.org. The Card Brands, Payabli or Member Bank, and their respective representatives, may inspect the premises of Merchant or any servicer or agent engaged by Merchant for compliance with security requirements. Merchant acknowledges that any failure to comply with security requirements may result in the imposition of restrictions on Merchant or the permanent prohibition of Merchant’s participation in Card acceptance programs by the Card Brands. Merchant shall indemnify and hold Payabli and Member Bank harmless against any losses or damages arising from Merchant’s actual or alleged failure to comply with security procedures and any losses or damages arising from or related to Merchant’s acts or omissions that result in an actual or alleged breach of data security, including but not limited to Merchant’s non-participation in any breach security program Payabli may offer.
5.9. Payabli acknowledges that it will maintain compliance with all applicable Card Brand Rules, including, without limitation, the PCI DSS requirements.
5.10.Federal regulations enacted pursuant to the USA PATRIOT Act and other applicable laws require financial institutions with which Payabli has relationships to verify the identity of every person who seeks to open an account with a financial institution. Merchant shall provide documentary verification of Merchant’s identity, such as a driver’s license or passport for an individual and certified copy of organization documents for an entity in manner acceptable to Payabli and Member Bank. Payabli and Member Bank reserve the right to verify Merchant’s identity through other non-documentary methods as Payabli and Member Bank deem appropriate in their sole discretion. Payabli and Member Bank may retain a copy of any document it obtains to verify Merchant’s identity with the financial institution.
6. CARD BRAND RULES.
6.1. Merchant must comply with the Card Brand Rules, as the same may be amended from time to time. The Card Brand Rules may change with little or no advance notice and Merchant will be bound by all such changes. If Merchant objects to any change in the Card Brand Rules, it must immediately stop accepting new Transactions for Cards governed by the change. The Card Brand Rules will govern if there is any inconsistency between the Merchant Agreement and the Card Brand Rules. If there is an inconsistency between the Merchant Agreement (including the Card Brand Rules) and applicable law, applicable law will govern, but only to the extent Card Brand Rules of the debit networks may differ among them with respect to the Transactions they allow. Payabli, at its discretion, may require that the most restrictive requirements of one debit network apply to all of Merchant’s online debit Transactions, regardless of Card type.
7. APPLICABLE LAW; MERCHANT’S BUSINESS; OTHER PROCESSORS.
7.1. Merchant will comply with all applicable federal, state, and local laws and regulations, including but not limited to laws and regulations regarding anti-money laundering compliance, in completing Transactions, submitting them to Payabli, performing its obligations under the Merchant Agreement, and otherwise conducting its business.
7.2. Merchant will give Payabli and Member Bank at least 30 days’ prior written notice before any change in Merchant’s name or location, any change in ownership or management of Merchant’s business, any sale, assignment, rental, lease or transfer of ownership of any location that accepts Cards, or any material change in information concerning Merchant in the Merchant Application, and material change in the type or nature of the business carried out by Merchant or otherwise required to be provided to Payabli.
7.3. To the extent permitted by applicable law, Merchant agrees that it will not participate in a Card processing program with another financial institution or processor without Payabli’s written approval.
8. CREDIT REPORTS AND OTHER INFORMATION.
8.1. From time to time, Payabli may obtain credit and other information on Merchant, owners and officers of Merchant, and any and all personal guarantors of Merchant, and any signatory to the Merchant Application, from others (such as customers and suppliers of Merchant, lenders and credit reporting agencies), and furnish information on Merchant’s relationship with Payabli and Payabli’s experience with Merchant to others seeking the information.
8.2. Merchant will provide Payabli with updated business and financial information concerning Merchant, including financial statements, tax returns, evidence of required licenses and other information and documents Payabli may reasonably request from time to time. Merchant shall further provide Payabli such information as it may request for the making of insurance claim, regulatory or other filings related to Merchant’s activity pursuant to this Agreement. All material marked “confidential” which Payabli receives from Merchant will be used only by Payabli, Member Bank or the Card Brands in performing the Merchant Services under this Merchant Agreement or related services and reporting. Payabli, Member Bank and any Card Brand, regulator, auditor or any other entity having authority may audit Merchant’s records relating to this Merchant Agreement. Merchant shall provide all documentation, information or other inspection rights requested by Payabli’s or Member Bank’s regulators or auditors or otherwise to enable Payabli and Member Bank to meet the requirements of applicable law. Without limiting the generality of the foregoing, Merchant understands and agrees that if, at the time of signing this Merchant Agreement Merchant is undergoing a forensic investigation, Merchant must notify Payabli and fully cooperate with the investigation until it is completed.
8.3. Merchant authorizes Payabli to release and use information collected in connection with Payabli’s provision of the Merchant Services to third parties that provide services to Payabli or Merchant or to any third party that requests and has a reason to know such information, including but not limited to the Card Brands, and any third party having regulatory control over any party.
9. TERM; TERMINATION.
9.1. Term/Renewal. The initial term of this Merchant Agreement shall be for the term of three years (the “Initial Term”) from the Effective Date. By either Merchant’s signature on the Merchant Application or Merchant’s processing a Transaction with Payabli, Merchant confirms acceptance of the Merchant Agreement. At the expiration of the Initial Term, this Merchant Agreement will automatically renew for successive one year periods (each a “Renewal Term” and collectively with the Initial Term the “Term”) unless a party provides the other parties with notice of its intent not to renew the Merchant Agreement at least 90 days prior to the expiration of the then-current term.
9.2. Termination.
9.2.1. Termination without Cause. Payabli or Member Bank or Payabli’s or Member Bank’s designated representative may terminate the Merchant Agreement as to all Card types or individually specified Card types, without cause, upon 30 days’ advance written notice.
9.2.2. Termination for Cause by Payabli or Member Bank. Payabli or Member Bank or Payabli’s or Member Bank’s designated representative may terminate the Merchant Agreement in its sole and absolute discretion, effective immediately, upon written, electronic or oral notice to Merchant if Payabli or Member Bank reasonably determines that any of the following conditions exists:
9.2.2.1. Merchant has violated any provision of the Merchant Agreement.
9.2.2.2. There is a material adverse change in Merchant’s financial condition, material change in Merchant’s processing activity, processing activity inconsistent with the Merchant Application, or Payabli or Member Bank determines in its sole discretion that Merchant’s processing activity could result in a loss to Payabli or Member Bank.
9.2.2.3. A petition in bankruptcy has been filed by or against Merchant, Merchant is generally unable to pay its debts as they become due, a receiver, custodian, trustee, liquidator or similar official is appointed for a substantial portion of Merchant’s business, there is a general assignment for the benefit creditors, or the business terminates.
9.2.2.4. Any information which Merchant provided to Payabli or Member Bank, including Merchant Application information, was false, incomplete or misleading when received, or has materially changed since Merchant provided such information.
9.2.2.5. At any time during the term of the Merchant Agreement, Merchant has had a monthly ratio of Chargebacks to Transactions that Payabli or Member Bank, in their sole and absolute discretion, deems excessive.
9.2.2.6. Merchant or any of Merchant’s officers or employees has been involved in processing Transactions with Payabli or Member Bank or other parties arising from fraudulent or otherwise unauthorized transactions.
9.2.2.7. Merchant is or will be unable or unwilling to perform its obligations under the Merchant Agreement or any applicable laws.
9.2.2.8. Merchant has failed to pay Payabli or Member Bank any amount when due.
9.2.2.9. Merchant has failed to promptly perform or discharge any obligation under the Merchant Agreement, the Merchant Reserve Account or the Billing Reserve.
9.2.2.10.Any of Merchant’s representations or warranties made in connection with the Merchant Agreement was not true or accurate when given.
9.2.2.11.Merchant has defaulted on any agreement it has with Payabli or Member Bank.
9.2.2.12.Payabli or Member Bank is served with legal demand, order or process seeking to attach or garnish any of the provisional credits arising out of or relating to the Merchant Agreement, Merchant’s funds or property in Payabli’s or Member Bank’s possession.
9.2.2.13.The Card Brand Rules are amended in any way such that Payabli or Member Bank determines that the continued existence of the Merchant Agreement would cause Payabli or Member Bank to be in breach of such Card Brand Rules.
9.2.2.14.Any guaranty supporting Merchant’s obligations is revoked, withdrawn or terminated or altered in any way.
9.2.2.15.Any governmental entity initiates proceedings against or an investigation regarding, Merchant, or Payabli or Member Bank reasonably believes that a governmental entity may do so.
9.2.2.16.If any circumstances arise regarding Merchant or its business that in Payabli’s or Member Bank’s discretion, make harm or loss of goodwill to Payabli or Member Bank or any Card Association likely.
9.2.3. Termination for Cause by Merchant. Merchant may terminate the Merchant Agreement in the event of a material breach of the terms of the Merchant Agreement by Payabli, provided Merchant gives Payabli written notice of any alleged breach and such breach remains uncured for a period of 30 days following receipt of written notice by the Payabli.
9.2.4. Liquidated Damages for Early Termination.
9.2.4.1. In addition to all other remedies available to Payabli under the Merchant Agreement or as otherwise available in law or equity, if the Merchant Agreement is terminated prior to the expiration of the applicable Term for any reason other than for a material, uncured breach by Payabli, Merchant agrees to pay Payabli as liquidated damages (and not as a penalty), a sum computed by multiplying (a) the average of the monthly fees paid by Merchant to Payabli over the immediately preceding six months and (b) the number of months remaining in the unexpired Term. Payment of liquidated damages for termination will not relieve either party of any obligations arising prior to the date of termination.
9.2.4.2. Merchant agrees that such liquidated damages as calculated above shall also be due to Payabli if Merchant discontinues submitting Transactions for processing during the Term for a period of 90 consecutive days, and is not designated on the Merchant Application, or by notice to Payabli, as a seasonal merchant or as otherwise agreed to by Payabli.
9.2.4.3. Merchant acknowledges and agrees that the liquidated damages are a reasonable computation of the financial harm caused by the termination of the Merchant Agreement by Merchant.
9.2.5. Member Bank’s or Payabli’s rights of termination under the Merchant Agreement are cumulative. A specific right of termination shall not limit any other right of Payabli or Member Bank to terminate the Merchant Agreement expressed elsewhere in the Merchant Agreement. Notice of termination may be given orally or in writing, if given orally, shall be confirmed in writing, except as otherwise stated in the Merchant Agreement.
9.2.6. Upon termination, Merchant’s rights to complete Transactions and submit them to Payabli will cease. Termination of the Merchant Agreement will not terminate the rights and obligations of Merchant, Payabli and Member Bank relating to acts or omissions occurring before termination, including for example, any fees or other service fees owed to Payabli, any Transactions processed for Merchant by Payabli (whether before or after termination), Merchant’s Chargeback and indemnity obligations, and the security interest granted to Payabli and Member Bank in the Merchant Agreement.
9.2.7. It is understood that a file for terminated merchants referred to as Member Alert to Control High-Risk Merchants (“MATCH”), formerly known as the Terminated Merchant File or “TMF”, is managed and maintained by Mastercard and utilized by the Card Brands and acquiring banks to identify the names of any business (and its principals) that have been terminated for certain reasons, including fraud, depositing excessive counterfeit paper, excessive unauthorized transactions, excessive chargebacks, depositing paper for others (laundering), bankruptcy or breach of a merchant agreement. Merchant acknowledges that Payabli or Member Bank is required to report Merchant to the MATCH (and/or on the Consortium Merchant Negative File or “CMNF” published by Discover® Network) if the Merchant Agreement is terminated for any of the foregoing reasons or other reasons as may be modified by the Card Associations. Merchant agrees and consents to such reporting in the event of the termination of the Merchant Agreement for any of the foregoing reasons.
10. MERCHANT RESERVE. If Payabli or Member Bank believes there is a high level of risk associated with Merchant’s use of the Merchant Services, Payabli may require the establishment of a reserve (“Reserve”). In lieu of establishing a Reserve Account, Processor may, at its election, demand and receive other forms of additional collateral security, including, without limitation, letters of credit or certificates of deposit. Failure to supply such additional collateral security shall constitute a material breach of this Merchant Agreement. Factors Payabli may consider are in requiring a reserve are chargebacks, returns, unfulfilled orders, or credit risk. Payabli will hold funds in Reserve for as long as it deems necessary to mitigate risks associated with Merchant’s use of the Merchant Services. If Payabli does require establishment of a Reserve, Payabli will provide Merchant with notice specifying the terms of the Reserve, which terms Payabli may change at any time on notice to Merchant. Merchant will remain liable for all obligations related to its use of the Merchant Services even after the release of any Reserve. The Reserve may be raised, reduced or removed at any time by Payabli, in its sole discretion. Funds in reserve will be held in an account maintained by Member Bank (the “Merchant Reserve Account”). The Merchant Reserve Account will be under the sole control of Member Bank. Notwithstanding anything in this Merchant Agreement to the contrary, Merchant shall have no ownership or property rights in the Merchant Reserve Account or the funds therein, no right of withdrawal from the Merchant Reserve Account, and no right to receive interest on the funds held in the Merchant Reserve Account. Payabli will reasonably determine the amount of funds in the Merchant Reserve Account based on the level of risk Merchant presents. Payabli or Member Bank may fund the Reserve in any of the following ways: pulling funds directly from Merchant’s Payabli Account; withholding a portion of transactions; requiring a payment directly from Merchant; and/or debiting the Designated Account. Member Bank may continue to deposit funds in the Merchant Reserve Account after termination of the Merchant Agreement.
11. BILLING RESERVE. If Payabli believes there is a high level of risk that Merchant will be unable to pay the fees owing under this Merchant Agreement, Payabli may require the establishment of a billing reserve (“Billing Reserve”). Payabli will hold funds in the Billing Reserve for as long as it deems necessary to mitigate risks associated with Merchant’s ability to pay fees. If Payabli does establish a Billing Reserve, it will provide Merchant with notice specifying the terms of the Billing Reserve, which terms Payabli may change at any time on notice to Merchant. Merchant will remain liable for all obligations related to its use of the Merchant Services even after the release of any Billing Reserve. The Billing Reserve may be raised, reduced or removed at any time by Payabli, in its sole discretion. Funds in the Billing Reserve will be held and owned by Payabli. Payabli will reasonably determine the amount of funds in the Billing Reserve based on the level of risk Merchant presents. Payabli may fund the Billing Reserve in any of the following ways: instructing Member Bank to pull funds from Merchant’s Payabli Account; instructing Member Bank to withhold a portion of transactions; requiring a payment directly from Merchant; and/or debiting the Designated Account. Payabli may instruct Member Bank to continue to deposit funds in the Billing Reserve after termination of the Merchant Agreement. At its sole discretion, Payabli may return some or all of the funds in the Billing Reserve to Merchant.
12. SECURITY INTEREST.
12.1 Merchant hereby grants Payabli and Member Bank a security interest in any funds held in Merchant’s Payabli Account and in the Merchant Reserve Account (without in any way suggesting that Merchant has any ownership interest or property rights in the Merchant Reserve Account), to secure the performance by Merchant of its obligations to Payabli and Member Bank under this Merchant Agreement. Upon request of Payabli, Merchant will execute one or more financing statements or other documents to perfect this security interest.
12.2.This Merchant Agreement will constitute a security agreement under the Uniform Commercial Code under which Merchant grants Payabli and Member Bank a security interest in and lien upon: (a) all funds owing Merchant under this Merchant Agreement, regardless of the source of such funds; (b) all funds in the Merchant Reserve Account; (c) present and future Transactions; (d) any amount which may be due to Merchant under this Merchant Agreement, including, without limitation all rights to receive any payments or credits under this Merchant Agreement; and (e) upon Payabli’s or Member Bank’s request, any other security to secure Merchant’s obligations under this Merchant Agreement (collectively, the “Secured Assets”). Merchant agrees to execute financing statements or other documents to evidence this security interest. These security interests and liens will secure all of Merchant’s obligations under this Merchant Agreement and any other agreements now existing or later entered into between Merchant, Payabli and Member Bank will have all rights afforded under the Uniform Commercial Code, Law, and in equity. Payabli or Member Bank may exercise this security interest without notice or demand by making an immediate withdrawal or freezing of Merchant’s Secured Assets. Merchant warrants that no other person or entity has a security interest in the Secured Assets and Merchant agrees to obtain from Payabli and Member Bank written consent prior to granting a security interest of any kind in the Secured Assets to a third party.
13. CUSTOMER CLAIMS. To the extent that Payabli or Member Bank has paid or may become liable for a Chargeback or credit transaction receipt, Merchant will be obligated to reimburse Payabli and Member Bank for any sums Payabli and Member Bank pays or for which Payabli or Member Bank is liable. If Merchant does not reimburse Payabli or Member Bank, Payabli and Member Bank will have all of the rights and remedies of cardholders, including the cardholders’ rights under 11 U.S.C. §507(a)(6). Payabli and Member Bank may assert any claim on behalf of a cardholder individually or on behalf of all cardholders as a class.
14. PROCESSING FEES.
14.1. Fee Schedule. Merchant will pay the fees in the amount specified in the fee schedule or as otherwise provided for in this Merchant Agreement or an addendum thereto. Monthly recurring fees will be assessed upon approval of the Merchant Application. Payabli shall have the right to modify or amend the terms and conditions of this Merchant Agreement, including, without limitation, the right to modify, amend, or supplement applicable fees, charges, and/or discounts. Modifications and amendments related to changes to the Card Brand Rules, changes to the fees charged by the Card Associations, Member Bank, or third parties, or in response to changes in requirements of Law (collectively, a “Third Party Change”) may be made effective immediately, with or without notice. Modifications or amendments unrelated to a Third Party Change shall be effective upon the date specified in a notice to the Merchant (the “Change Notice”), provided that the date shall not be fewer than five business days after the date of such Change Notice. Such Change Notice may be provided as a message attached to Merchant’s monthly billing statements. Following the Effective Date, in the event of any modification or amendment not related to a Third Party Change, Merchant shall have the right to terminate this Merchant Agreement, without liability for premature termination by providing written notice thereof to Payabli, provided that such notice must be given within five business days following the date of the Change Notice.
14.2. Card Brand Actions. Payabli will not be required to provide Merchant with 5 days’ notice of an increase in fees if any Card Brand or any other entity having such authority increases fees and the effective date for implementation of the increased fees is less than 5 days. In such cases, Payabli shall make reasonable efforts to notify Merchant but failure to provide notice of will not affect Merchant’s obligation to pay the increased fees.
14.3. Government and Regulatory Actions. Payabli will not be required to provide Merchant with advance notice for any increase in fees resulting from any fine, charge, fee or cost incurred in connection with any state, federal or other regulatory action, change in laws or regulations of Merchant’s funds. Payabli shall make reasonable efforts to notify Merchant but failure to provide notice of will not affect Merchant’s obligation to pay the increased fees.
14.4. Payment and Authorization to Debit Designated Account. Merchant authorizes Payabli or Member Bank to deduct fees and other service charges, fines, obligations, liabilities, or any other amounts owed by Merchant to Payabli or Member Bank from amounts due Merchant, from the Designated Account, or from the Merchant Reserve Account or Billing Reserve. This authorization will remain in effect until the Merchant Reserve Account and Billing Reserve are closed. If Merchant changes the Designated Account, this authorization will apply to Merchant’s subsequent Designated Account. Merchant will pay the amounts due by the next business day if sufficient funds are not available in any of these accounts. Payabli may suspend accepting Transactions or releasing Payabli Account funds to Merchant until Merchant has paid outstanding fees.
15. PAYABLI’S STATUS WEBSITE. The website status.Payabli.com is Payabli’s communication tool for operational issues. Merchant is encouraged to visit status.Payabli.com at any time to review the operational status of Merchant Services and subscribe to real time operational updates via email, SMS, slack or webhook. If Merchant does subscribe, it is Merchant’s responsibility to keep its contact information updated at status.Payabli.com to assure that the proper individual(s) receive the updates. If Merchant does not subscribe, Merchant acknowledges that it may miss out on important updates about Payabli’s system.
16. NO WARRANTIES. To the maximum extent permitted by applicable law, Payabli and Member Bank specifically disclaim all warranties of any kind, expressed or implied, including, without limitation, warranties of title, availability, non-infringement, merchantability, fitness for a particular purpose, or any warranty arising out of any proposal, description, specification, course of dealing, or sample. The Merchant Services are offered solely on an “As Is” and “As Available” basis. Payabli and Member Bank expressly disclaim any representation or warranty that the Merchant Services will be uninterrupted or error-free.
17. INDEMNIFICATION; LIMITATION OF LIABILITY.
17.1. Merchant shall indemnify both Payabli and Member Bank, including their respective officers, directors, employees, independent sales organizations (“ISOs”) and agents, against and hold them harmless from any and all claims, demands, settlements, losses, damages, liabilities, costs and expenses of any kind (including reasonable attorney’s fees) of any party arising from or based upon any actual or alleged act or omission of Merchant, Merchant’s employees, Merchant’s designated representatives, servicers, or agents, in connection with or arising out of this Merchant Agreement, the duties to be performed by Merchant pursuant to the Merchant Agreement, any Transactions which Merchant submits to Payabli (including Chargebacks), or Merchant’s violation of the Card Brand Rules or any requirements of applicable law. If Payabli or Member Bank is made a party to any litigation, proceeding, arbitration, bankruptcy proceeding, or other legal process (collectively “Actions”) commenced by any third party, Merchant shall protect and hold both Payabli and Member Bank harmless from and with respect to the Actions and shall indemnify such party from and against all costs, expenses, and attorney’s fees, including in-house legal fees, incurred or paid in connection with the Action, together with any judgments, settlements, losses, damages or other liabilities. Merchant shall indemnify, defend, and hold harmless both Payabli and Member Bank from and against any actual or alleged hacking, infiltration, or compromise of Merchant’s systems or the systems of Merchant, Merchant servicers or Merchant’s agent(s), or designated representatives.
17.2. Payabli and Member Bank will not accept responsibility for errors, acts, or failure to act by others, including but not limited to, Merchant servicers, agents, third party suppliers of software, equipment or services; or, banks, communication common carriers, data processors or clearinghouses through which transactions may be passed, originated and/or authorized. Payabli and Member Bank will not be responsible for any loss, liability or delay caused by fires, earthquakes, war, civil disturbances, power surges or failures, acts of governments, acts of terrorism, labor disputes, failures in communication networks, legal constraints or other events beyond the control of Payabli and Member Bank. Payabli and Member Bank undertake no duties to Merchant other than the duties expressly provided for in the Merchant Agreement, and any and all other or additional duties that may be imposed upon Payabli and Member Bank in law or equity are hereby irrevocably waived and released to the maximum extent permitted by law. In any event, to the maximum extent permitted by applicable law, the cumulative liability of each of Payabli and Member Bank, as well as their respective officers, directors, employees, and agents, to merchant, whether arising in contract, tort (including, without limitation, negligence and strict liability) or otherwise, shall not exceed the lesser of $10,000 or, the amount equal to the aggregate of monthly net processing fees paid by Merchant in the three month period prior to the month that the incident giving rise to liability occurred.
17.3. To the maximum extent permitted by law, in no event shall Payabli or Member Bank or their respective officers, directors, employees and agents be liable for special, incidental, indirect, consequential or exemplary damages or for any interruption or loss of use, data, business or profits, whether or not such loss or damages were foreseeable or Payabli or Member Bank was advised of the possibility thereof and regardless of whether any limited remedy herein fails of its essential purpose.
18. BANKRUPTCY.
18.1. Merchant will notify Payabli immediately if any bankruptcy, insolvency or similar petition is filed by or against Merchant. Merchant acknowledges that this Merchant Agreement constitutes an executory contract to extend credit or financial accommodations as defined in 11 U.S.C. §365(c)(2) and that the Merchant Agreement cannot be assumed or assigned in the event of bankruptcy. In the event of Merchant’s bankruptcy, Payabli shall be entitled to suspend further performance under this Merchant Agreement.
18.2. In the event of a bankruptcy proceeding, Merchant must establish a Merchant Reserve Account and/or Billing Reserve, or maintain a previously established and then-current Merchant Reserve Account and/or Billing Reserve in amounts required by Payabli. Payabli will have the right to set-off against the Merchant Reserve Account and Billing Reserve for any and all obligations which Merchant may owe Payabli, without regard as to whether the obligations relate to Transactions initiated or created before or after the filing of the bankruptcy petition.
19. GENERAL PROVISIONS.
19.1. Amendments. Other than the amendments set forth above in Section 14.1, this Merchant Agreement may be amended only in writing signed by Merchant, Member Bank, and Payabli.
19.2. Notices. Any notices or other communications required or permitted by this Merchant Agreement shall be in writing and shall be delivered either by personal delivery, by a nationally recognized overnight courier service, electronic mail or other electronic means, by first class mail or by certified or registered mail, return receipt requested, addressed as set forth above or to such other address as any party shall have designated to the others by written notice given in the manner set forth above. Notices and approvals required under this Merchant Agreement shall be deemed given: one day after sent, if sent by overnight courier; when delivered and receipted for, if hand delivered; when received, if sent by facsimile, electronic mail or other electronic means or by first class mail; or when receipted for (or upon the date of attempted delivery where delivery is refused or unclaimed), if sent by certified or registered mail, return receipt requested.
19.3. Assignment. The Merchant Agreement is binding upon the successors and assigns of Payabli, Member Bank and Merchant. Merchant will not assign or transfer (including by merger, change of control or operation of law) the Merchant Agreement (in whole or in part) to another person or entity without Payabli’s and Member Bank’s prior written consent and any purported assignment made without Payabli’s and Member Bank’s consent will be void.
19.4. Waiver. Payabli or Member Bank’s failure to enforce this Merchant Agreement will not waive Payabli’s or Member Bank’s rights under this Merchant Agreement. Waivers of any provision of this Merchant Agreement must be in writing and signed by Payabli and Member Bank. A waiver in one instance will not apply to other occasions unless that intent is clear from the signed waiver.
19.5. Agency Relationship. Merchant authorizes Member Bank with respect to the Services to act as Merchant’s agent for the limited purposes of holding, receiving, and disbursing funds on Merchant’s behalf. Merchant’s authorization permits Member Bank to generate an electronic funds transfer to process each Transaction. This authorization will continue until Merchant’s Payabli Account is closed or terminated. Merchant agrees that Member Bank’s receipt of Transaction proceeds satisfies Merchant’s customers’ obligations to Merchant. Member Bank will remit to Merchant funds actually received by Member Bank on Merchant’s behalf, less amounts owed to Payabli and Member Bank, subject to any Chargebacks or reserve withheld or applied as per this agreement.
19.6. Relationship of Parties. Merchant designates Payabli as its agent to receive payments for transactions processed pursuant to this Merchant Agreement. Payabli, however, shall not be considered a partner or fiduciary to Merchant, and nothing in this Merchant Agreement or the rendition of services related to this Merchant Agreement shall be deemed to create a joint venture, partnership, or fiduciary relationship between or among the parties. Rather, the relationships between Member Bank and Merchant, and between Payabli and Merchant, are arm’s length commercial relationships.
19.7. Survival. Sections 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 16, 17, 19.1, 19.2, 19.3, 19.4,, 19.10, 19.11 and 19.12 will survive termination of the Merchant Agreement.
19.8. Severability. If any one or more of the provisions contained in this Merchant Agreement shall in any jurisdiction be held or determined by a court having jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be deemed modified so as to be enforceable to the maximum extent permitted by law consistent with the intent of the parties as herein expressed, and such invalidity shall not affect the remaining provisions of this Merchant Agreement, which shall continue in full force and effect.
19.9. No Remedies Exclusive. No right or remedy granted pursuant to the terms of this Merchant Agreement shall be deemed to be exclusive of any other right or remedy available at law or equity. All such rights and remedies, whether granted now or hereafter, shall be deemed to be cumulative and not alternative, and may be exercised concurrently, independently or successively.
19.10. Governing Law and Venue. The laws of State of Utah (without regard to its conflicts of law provisions) govern all matters arising out of or relating to this Merchant Agreement. The parties consent to the exclusive jurisdiction and venue of the federal or state courts located in Salt Lake County, Utah for any legal proceeding pertaining to this Merchant Agreement. All performances due and Transactions undertaken pursuant to this Merchant Agreement are deemed to be due or to have occurred in the City of Lehi, Utah County, State of Utah, and the use of the Merchant Services by Merchant is the transaction of business within the State of Utah.
19.11. Jury Trial Waiver. The parties waive any right to trial by jury in any action arising out of, in connection with, or in any way related to this Merchant Agreement.
19.12. Attorney’s Fees. The prevailing party in an action brought against the other to enforce the terms of this Merchant Agreement or any rights or obligations hereunder, will be entitled to receive its reasonable costs and expenses of bringing such action including its reasonable attorney’s fees in addition to any other recoverable damages.
19.13. No Third Party Beneficiaries. This Merchant Agreement is for the exclusive benefit of the parties, and no other person or entity, including any affiliate or creditor of any party, shall have any right or claim against any party by reason of this Merchant Agreement or shall be entitled to enforce any provision of this Merchant Agreement against any party.
19.14. Entire Agreement. This Merchant Agreement constitutes the entire agreement among the parties, and supersedes all prior oral and written negotiations with respect to the subject matter hereof.
19.15. Headings. Headings listed in this Merchant Agreement are inserted for convenience only, do not constitute a part of this Merchant Agreement, and are not to be considered in connection with the interpretation or enforcement of this Merchant Agreement.
19.16. Review of Books and Records. Payabli or Member Bank shall have the right, at its cost and expense and by providing not less than 30 days’ prior written notice to Merchant, to review those books and records of Merchant that pertain to the performance by Merchant of its obligations under this Merchant Agreement, for the purpose of confirming or assessing compliance with the terms and conditions of this Merchant Agreement. Any such review shall be conducted during normal business hours at a place reasonably designated by Merchant.
19.17. Counterparts. The parties agree that this Merchant Agreement may be executed (a) in one or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same agreement; and (b) by using an electronic or handwritten signature, which are of equal effect, whether on original or electronic copies.
19.18 Compliance with Payabli Policies. As a condition of using the Services, you agree our terms of the Electronic Funds Transfer Agreement Policy, Privacy Policy, Electronic Communications Policy, Terms of Use, and other policies applicable to your Account (“Policies”).
EXHIBIT A
AUTHORIZATION FOR TRANSACTIONS
1. CARDHOLDER INFORMATION. Merchant will identify the cardholder when accepting payment for products sold or services rendered. As part of the cardholder identification process, Merchant will obtain the expiration date, and ZIP Code or Postal Code from the cardholder’s billing address. Merchant will not honor any Card if: (a) the Card has expired; or; (b) the account number embossed on the Card is listed on a current Electronic Warning Bulletin file.
2. AUTHORIZATION
2.1. Authorization required for all Transactions. Merchant will obtain authorization via Payabli’s web site, touch-tone phone system, Merchant Application Program Interface (“API”) or other method acceptable to Payabli prior to completing any Transaction. Merchant will follow any instructions received during the authorization process. Upon receipt of authorization, Merchant may consummate only the Transaction authorized and must note on the Merchant’s record of cardholder purchase the authorization number. Where authorization is obtained, Merchant will be deemed to warrant the true identity of the customer as the cardholder. Transactions will be deemed invalid on Cards that are expired, whether or not an authorization has been obtained. Merchant must obtain the Card expiration date and forward it as part of the authorization request.
3. PRESENTMENT OF SALES TRANSMITTALS
3.1. Forms.
3.1.1. Merchant will transmit to Payabli necessary information to document each Transaction. Each Transaction will contain: (a) Merchant name and account identifier; (b) the Card expiration date; and (c) the total amount of the sale (including any applicable taxes) or credit Transaction.
3.1.2. Payabli may also require addition information, such as: (a) zip code of customer’s billing address; (b) CVV2 code or the equivalent; (c) a brief description of the goods or services involved; (d) the Transaction authorization number; and (e) if applicable, adjacent to the signature line, a notation that all sales are final.
3.2. Delivery and Retention of Transactions. Merchant will retain the merchant copy of the Transaction or credit memorandum for at least 25 months following the date the Merchant initiates the Transaction. When Merchant retains this information, Merchant must do so in accordance with the applicable Card Brand Rules, security and confidentiality requirements as referenced in the Merchant Services Agreement.
3.3. Electronic Transmission. Merchant will enter at the Payabli web site, or transmit via API to Payabli, the data related to a Transaction no later than 72 hours from the date the Merchant initiates the Transaction. Information regarding a sales or credit Transaction transmitted with a computer or magnetic stripe reading terminal will be transmitted by Merchant to Payabli or its agent in the form Payabli from time to time specifies, or as required under Card Brand Rules. If Payabli requests a copy of a Transaction, Merchant’s record of return or refund to be credited to cardholder’s account (“Credit Voucher”) or other Transaction evidence, Merchant will provide it within three (3) business days following the request. Merchant acknowledges that Payabli shall have Chargeback rights with respect to any Transaction or Credit Voucher for which Merchant fails to provide such documents within such time period.
EXHIBIT B
API LICENSE AGREEMENT
1. PURPOSE. Payabli owns and operates a proprietary payment network. Payabli has developed the API, which is for use by Merchant to build software applications that interface with or otherwise communicate with Payabli’s payment network. Payabli provides this license to Merchant to enable Merchant’s interaction with Payabli’s payment network via Payabli’s API. All elements of Payabli’s API and Merchant’s specific Authorization Information (as defined below) will constitute the (“Licensed Materials”).
2. LICENSE GRANT. Subject to the terms and conditions of this license and the Merchant Agreement it is attached to, Payabli grants to Merchant a nontransferable, nonexclusive, non-sublicense-able, limited license to use the Licensed Materials solely in accordance with this license. Merchant may do the following under this license:
2.1 Sign up users for payment and/or merchant accounts;
2.2 Transfer money, including commission payments, between Payabli accounts;
2.3 Take action against payment cards consisting of authorizing, capturing, voiding, and refunding transactions;
2.4 Initiate Spend Back transactions;
2.5 Initiate Split Pay transactions; and
2.6 Make informational requests regarding Payabli accounts, subject to system or API limitations.
Any combination of subsections 2.1–2.6 above will be deemed a “Permitted Use.” A Permitted Use is subject to all restrictions identified herein. Payabli shall provide to Merchant confidential data which is specific to Merchant that will permit Merchant to access and use the API (“Authorization Information”). The Authorization Information is the property of Payabli and may be immediately revoked or terminated by Payabli if Merchant shares the same with any third party (other than Third party Service Providers from Merchant), if compromised by a third party, or if Merchant uses or accesses the API in any way not expressly permitted or granted under this license.
3. RESTRICTIONS. Payabli reserves all rights in the Licensed Materials not expressly granted herein. Except as expressly provided herein: (a) Merchant shall not copy, nor allow others to copy, any of the Licensed Materials; (b) Merchant shall not sell, assign, pledge, lease, deliver, sublicense or otherwise transfer the Licensed Materials or any part thereof to any third party; (c) Merchant shall not disclose to any third party or permit any third party to have access to or use the Licensed Materials or any part thereof; (d) Merchant shall not modify, alter or change the Licensed Materials or any part thereof, or develop any diagram, drawing or other documentation based on the Licensed Materials or the information contained therein; (e) Merchant shall not use the Licensed Materials to develop, manufacture, modify or reproduce any other product or service that it has reason to know, or is notified by Payabli, that competes with any Payabli product or service manufactured and/or distributed by or for Payabli; (f) Merchant may not reverse engineer the Licensed Materials; (g) Merchant may not distribute, facilitate, enable, or allow access or linking to Payabli’s payment network from any location or source other than Merchant’s Website; and (h) Merchant shall not permit or enable third parties to copy or obtain Payabli data from Merchant’s Website in any unauthorized manner including, but not limited to, the use of using robots, spiders, scraping, or any other technology. Notwithstanding the foregoing, Merchant may disclose the Licensed Materials to any third party service provider for the sole purpose of accomplishing a Permitted Use of this license provided that said third party agrees in writing to be bound by all the terms and conditions of this license.
4. OWNERSHIP OF LICENSED MATERIALS. Merchant acknowledges and agrees that all right, title and interest in and to the Licensed Materials and all patents, copyrights, trademarks, trade names, trade secrets and other proprietary rights related to or residing in the Licensed Materials, and all copies of all or any part thereof in any form whatsoever, will remain with Payabli. Merchant understands and agrees that the Licensed Materials contain trade secrets of Payabli that must be kept confidential. Merchant shall promptly notify Payabli of any actual or threatened misappropriation or infringement of Payabli’s proprietary rights which may come to Merchant’s attention.
5. PROPRIETARY NOTICES. Merchant shall not remove from the Licensed Materials, or alter, any of Payabli’s trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Licensed Materials, without the prior express written consent of Payabli. Merchant shall duplicate all such proprietary rights notices on each copy of the Licensed Materials permitted to be made hereunder.
8. BREACH. Merchant understands that if it fails to comply with the provisions of this license, Payabli will suffer irreparable harm, which may not be adequately compensated for by monetary damages alone. Merchant, therefore, agrees that in the event of its breach or threatened breach of this license, Payabli will be entitled to monetary damages as well as injunctive and/or other preliminary or equitable relief, in addition to any other remedies as available by law.
EXHIBIT C
This Exhibit applies only if Merchant accepts American Express Cards (each a “Sponsored Merchant”). If there is a conflict between any of the following sections and any other section of the Terms and Conditions as they apply to American Express Cards, the following sections will govern. Payabli and Member Bank are not a party to the following sections.
AMERICAN EXPRESS® CARD ACCEPTANCE
1. CONSENT. Sponsored Merchant authorizes Payabli and/or its affiliates to submit American Express Transactions to, and receive settlement on, such Transactions from, American Express on behalf of Merchant.
2.1. Sponsored Merchant agrees to comply with all American Express Card Brand Rules, Applicable Laws, rules and regulations, including the American Express Merchant Operating Guide requirements, which are incorporated into this agreement by reference as if they were fully set forth in the Merchant Agreement. The American Express Merchant Operating Guide may be viewed at: www.americanexpress.com/merchantopguide. Any undefined capitalized terms set forth in this section have the meanings given to them in the American Express Merchant Operating Guide.
2.2. Sponsored Merchant shall abide by and fully comply with DSR and Payment Card Industry Data Security Standard (“PCI DSS”). A copy of the American Express Data Security Requirements (“DSR”) can be obtained online at www.americanexpress.com/dsr.
2.3. Sponsored Merchant acknowledges and agrees to:(a) ensure data quality and that Transaction Data and customer information is processed promptly, accurately, and completely, in compliance with the American Express Technical Specifications; (b) report all instances of a Data Incident immediately to Payabli after discovery of an incident; (c) be aware of and adhere to privacy and data protection laws; and (d) provide specific and adequate disclosures to Cardmembers regarding collection, use, and processing of personal data.
2.4. Sponsored Merchant certifies that all indebtedness arising from Transactions will be for bona fide sales of goods and services (or both) at its business locations and free of liens, claims, and encumbrances other than ordinary sales taxes.
3. HIGH CHARGE VOLUME SPONSORED MERCHANTS. In the event that Sponsored Merchant’s estimated annual American Express charge volume becomes $1,000,000 USD or greater, Sponsored Merchant may, at the discretion of Payabli and American Express become a direct Card-accepting merchant under the standard American Express acceptance program and cease to be a Sponsored Merchant under a Merchant Services Provider. As a direct Card-accepting merchant, Sponsored Merchant will be bound by the then-current American Express Card acceptance agreement and American Express will set pricing and other fees payable for card acceptance.
4. PROCESSING RESTRICTIONS. Sponsored Merchant is prohibited from processing Transactions or receiving payments on behalf of, or (unless required by law) re-directing payments to any other party. Provided, however, that Sponsored Merchant may sell and assign future American Express-related Transaction receivables to Payabli, its affiliated entities and/or any other cash advance funding source that partners with Payabli or its affiliated entities, without consent of American Express. Notwithstanding the foregoing, Payabli prohibits Sponsored Merchant from selling or assigning future American Express-related Transaction receivables to any third party.
5. THIRD PARTY BENEFICIARY RIGHTS.
5.1. Sponsored Merchant confers on American Express the beneficiary rights, but not obligations, to the Sponsored Merchant’s Merchant Agreement and subsequent addendums (collectively the “Merchant Agreement”) between Sponsored Merchant and Payment Service Provider and, as such, American Express has the express right to enforce the terms of the Merchant Agreement against the Sponsored Merchant.
5.2. Sponsored Merchant warrants that it does not hold third party beneficiary rights to any agreements between Payment Service Provider and American Express and at no time will attempt to enforce any such agreements against American Express.
6. AMERICAN EXPRESS LIABILITY. Sponsored merchant acknowledges and agrees that in no event shall American Express, its affiliates, agents, successors, or assignees be liable to sponsored merchant for any damages, losses, or costs incurred, including incidental, indirect, speculative, consequential, special, punitive, or exemplary damages of any kind (whether based on contract, tort, including negligence, strict liability, fraud, or otherwise, or statutes, regulations, or any other theory), arising out of or in connection with the Merchant Agreement.
7. MERCHANT WEBSITE DISPLAY REQUIREMENTS. Sponsored Merchant will adhere to the following website information display guidelines in the event a Sponsored Merchant has a website and/or operates an e-commerce business (“Merchant Website”). The Merchant Website must display the following:
7.1. An accurate description of the goods/services offered, including the currency type for the Transaction (e.g., U.S. Dollars). Note: Transaction currency must be in U.S. Dollars.
7.2. Sponsored Merchant’s physical address in the U.S.
7.3. An email address or telephone number for customer service disputes.
7.4. Return/refund policy.
7.5. A description of the Sponsored Merchant’s delivery policy (e.g., no overnight delivery).
7.6. A description of the Sponsored Merchant’s security practices (e.g., information highlighting security practices the Merchant uses to secure Transactions on its systems, including Transactions conducted on the Internet).
7.7. A statement of known export restrictions, tariffs, and any other regulations.
7.8. A privacy statement regarding the type of personal information collected and how the information is used. Additionally, Sponsored Merchant must provide to customers the option to decline being included in marketing campaigns or having their personal information included on lists sold to third parties.
8. COMMUNICATION.
8.1. Sponsored Merchant agrees that Payabli may disclose to American Express information from the Merchant Agreement and otherwise regarding Sponsored Merchant and its Transactions, and that American Express may use such information: (a) to perform its responsibilities in connection with American Express Card Acceptance; (b) to promote the American Express Network; (c) to perform analytics and create reports; (d) for any other lawful business purposes including commercial marketing communications purposes within the parameter of the Program Agreement, (e) for important transactional or relationship communication from American Express, and (f) to screen and/or monitor Sponsored Merchant in connection with American Express marketing and administrative purposes.
8.2. Sponsored Merchant agrees it may receive messages from American Express, including important information about American Express products, services, and resources available to its business. These messages may be sent to the mailing address, phone numbers, email addresses or fax numbers of Sponsored Merchant. Sponsored Merchant may be contacted at its wireless telephone number and the communications sent may include autodialed short message service (“SMS” or “Text”) messages or automated or prerecorded calls. Sponsored Merchant may opt-out of receiving future commercial marketing communications from American Express by contacting Payabli; however, Sponsored Merchant may continue to receive marketing communications while American Express updates its records to reflect this choice. Opting out of commercial marketing communications will not preclude Sponsored Merchant from receiving important transactional or relationship messages from American Express.
9. TERMINATION
9.1. Payabli has the right to terminate Sponsored Merchant’s participation in American Express Card Acceptance immediately upon written notice to Sponsored Merchant: (a) if Sponsored Merchant breaches any of the provisions of this exhibit or any other terms of this Merchant Agreement applicable to American Express Card Acceptance, including, but not limited to, the American Express Merchant Operating Guide; (b) if Payabli has cause to believe Sponsored Merchant is engaged in illegal or fraudulent activity; or (c) upon American Express’s request.
9.2. Sponsored Merchant may opt out of accepting American Express at any time by written request to Payabli without directly or indirectly affecting its rights to accept other Cards.
9.3. In the event Sponsored Merchant’s participation in American Express Card Acceptance is ended for any reason, Merchant must immediately cease all use of and remove all American Express branding and marks from Sponsored Merchant’s business location(s), website(s) and anywhere else they are displayed.
10. REFUND POLICY. Sponsored Merchant’s refund policies for American Express-related Transactions must be at least as favorable as its refund policy for any other Card, and the refund policy must be in compliance with Applicable Law and disclosed to Cardholders at the time of purchase. Sponsored Merchant may not bill or attempt to collect for any American Express-related Transaction unless: (a) a Chargeback has been exercised; (b) Sponsored Merchant has fully paid for such Chargeback; and (c) Sponsored Merchant otherwise has the right to do so.
Last updated: July 21, 2021
INTRODUCTION
This agreement between “you” and ProPay, Inc. (“ProPay,” “we,” “our,” “us”) governing your use of our payment processing services (“Service(s)”). The Services are being offered in conjunction with your agreement with your service provider (“Provider Partner”) and may not be used separately from that agreement.
1. THE SERVICES
1.1 THE SERVICES
The Services are intended to be used for business purposes and not for personal, family or household use. The Services allow you to accept payment from your customers via bankcards (“Cards”) validly issued by Visa, Mastercard, Discover, and American Express (the “Card Brands”) and also, if approved, via automated clearing house transactions (“ACH”). Services may include TSYS EnsureBillSM and ThreatMetrix®, as described in section 2, if such services are made available by your Provider Partner. We reserve the right to change the availability of any of the Services without notice. You shall not: (a) interfere with or disrupt the integrity or performance of the Services, or the data contained therein; or (b) attempt to gain unauthorized access to the Services, As the provider of the Services, we have certain obligations under the Card Brand Rules. .
1.2 REQUIRED INFORMATION, VERIFICATION
Our sponsor banks and the Card Brands require us to verify your identity, credit, business operations and compliance with the obligation under this Agreement. In order to use the Services, you must provide us sufficient information and documentation as requested by us including information to verify your identity, financial statements, and customer information. If the scope or nature of your business or the type of products or services you offer changes, you must notify Provider Partner prior to the change. We reserve the right to refuse to allow you to use the Services for any reason. You authorize us to make, from time to time, any business and personal credit inquiries, identity-verification inquiries, and any other inquiries considered necessary relating to this agreement, and to provide any required information and documentation to our sponsor banks and/or the Card Brands. You also authorize any person or credit reporting agency to compile information to answer those inquires and to furnish that information to us.
1.3 PROCESSING LIMITS
We will assign a maximum dollar amount per sales ticket and an aggregate maximum dollar amount of Card and ACH transactions per calendar month. If your use of the Services meets certain Card processing volume thresholds, we may notify you that you must enter into an additional agreement with our sponsor bank.
1.4 DATA OWNERSHIP & SHARING DATA WITH PROVIDER PARTNER
ProPay owns all data associated with your use of the Services and you hereby grant us a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display this data for the following purposes: (a) providing and improving the Services; (b) using the data internally, including but not limited to, data analytics so long as such data is anonymous and aggregated with other customer data; (c) complying with applicable legal requirements and assisting law enforcement agencies; (d) sharing data about your use of the Services with your Provider Partner; and (e) any other purpose for which you provide consent.
1.5 INTELLECTUAL PROPERTY RESTRICTIONS
All materials or intellectual property provided to you in connection with the Services (“Materials”) are protected intellectual property of ProPay or its third party providers. You shall not (and shall not permit any agent or third party) to: (a) copy all or any portion of any Materials; (b) decompile, disassemble, or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the contrary) the Services or Materials, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Services or any Materials or any portion thereof; (c) modify, translate, or otherwise create any derivative works based upon the Services or any Materials; (d) distribute, disclose, market, rent, lease, assign, sublicense, pledge, or otherwise transfer the Services or any Materials, in whole or in part, to any third party; or (e) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on the Services or in any Materials.
2. ENSUREBILL AND THREATMETRIX SERVICES
2.1 ENSUREBILL
a. Description. TSYS EnsureBill Services, if made available by your Provider Partner, include enrolling you, submitting information to the Card Brands for updating, and providing updated account information to you as received by the Card Brands, subject to the terms and conditions of this agreement. If you elect to enroll in the EnsureBill Services you authorize ProPay to enroll you with the Card Brands to receive the EnsureBill Services and to provide information about you and your customers to ProPay’s service providers, including the Card Brand and ProPay’s processor, as necessary to provide you the EnsureBill Services.
b. Limitations. You may use the EnsureBill Services solely for updating cardholder information in order to complete your future pre-authorized transactions in accordance with the Card Brand Rules and will not use the EnsureBill Services for any other purpose, including use of data with transactions for a different card type, or in connection with the development of any other service or product. You must not request authorization or an update for accounts that have been closed or submit EnsureBill Services inquiries on behalf of any other entity.
c. Use outside of ProtectPay. For Cards not stored in ProPay’s ProtectPay, you must:
i. Request an update for every participating account in your customer database at least once every 180 calendar days;
Submit requests only for those accounts with which you have an ongoing customer relationship that would require the use of the EnsureBill Services, e.g., subscription services, “express checkout” services, membership (club) services, or recurring payment services;
Update your customer account database within five business days of receiving an update from us;
Ensure that information received from the EnsureBill Services is properly incorporated into your customer database for utilization in future transactions;
Correct erroneous account information within five business days of receipt of error notification from us or the Card Brands; and
Correct operational errors within five business days of receipt of error notification from Bank, ProPay, or the Card Brands.
ProPay will perform the tasks in subparagraphs (i) through (vi) above for Cards stored in ProtectPay.
2.2 THREATMETRIX
a. Description. ThreatMetrix Services, if made available by your Provider Partner, include device identification, device scoring, device reputation, and data analytics services provided by third-party ThreatMetrix. If you elect to use the ThreatMetrix Services, we grant you a non-exclusive, nontransferable, worldwide right to use the ThreatMetrix Services, and any other materials or intellectual property of ThreatMetrix provided to Client in connection with the ThreatMetrix Services (the “ThreatMetrix Materials”), solely for your own internal business purposes and subject to the terms and conditions of this agreement. Notwithstanding anything in this agreement to the contrary, we may modify the ThreatMetrix Services without notice. Client shall not: (a) interfere with or disrupt the integrity or performance of the ThreatMetrix Services, or the data contained therein; or (b) attempt to gain unauthorized access to the ThreatMetrix Services, or its related systems or networks. You will provide such attribute information to us as may be necessary for us to provide to you the ThreatMetrix Services. You will also take such actions as may be legally and technically necessary to allow us and ThreatMetrix to collect the attribute information you decide to receive in connection with the ThreatMetrix Services.
b. Use of Logo. Client may place on its website the “Protected by ThreatMetrix” logo solely in the form and under the use criteria provided by us or ThreatMetrix. No other use of the “Protected by ThreatMetrix” logo is permitted, and you shall have no right to otherwise copy, distribute, transmit, or transfer, such logo or any other mark of ThreatMetrix. All goodwill associated with the use of ThreatMetrix’s marks or logos inure to ThreatMetrix.
c. Limitations. The ThreatMetrix Services analyze the activities and other attributes of a device used in a transaction, and provide information and a rating score based on the data analyzed and the business policies you define. The ThreatMetrix Services provide information as to whether the device contains attributes which correlate to a device used in a fraudulent transaction, but do not determine the eligibility of your customer (or any other individual) for credit. You acknowledge and agree that neither we nor ThreatMetrix intend that the reports generated by the ThreatMetrix Services (the “Device Reports”), or any ThreatMetrix Materials, be considered consumer reports subject to the federal Fair Credit Reporting Act (“FCRA”). You represent that you will not use the Device Reports (or any other data provided by ProPay or ThreatMetrix) for making credit eligibility decisions or for any other permissible purpose listed in section 604 of the FCRA (15 U.S.C. 1681 b).
3. COMPLIANCE WITH RULES AND LAWS
3.1 COMPLIANCE WITH RULES
You must comply with the applicable Card Brand rules and operating regulations and the National Automated Clearing House Association rules (“NACHA”) (collectively, “Rules”). An abridged version of the Visa, Mastercard and American Express Rules may be accessed at https://usa.visa.com/support/consumer/visa-rules.html, https://www.mastercard.us/en-us/business/overview/support/rules.html, and www.americanexpress.com\merchantopguide. Copies of the NACHA Operating Rules and Guidelines are available for review online at www.achrulesonline.org. ProPay is a Payment Card Industry (“PCI”) level 1 service provider and is qualified to handle Cardholder data (i.e., information associated with a Card, such as account number, expiration date, and CVV2) in connection with the Services. ProPay will comply with the Payment Card Industry Data Security Standards (“PCI DSS”) to the extent ProPay possesses or otherwise stores, processes, or transmits Cardholder data on your behalf. If you possess or otherwise store, process, or transmit Cardholder data, then you must comply with PCI DSS.
3.2 COMPLIANCE WITH LAWS AND POLICIES
You further agree to comply with applicable federal, state, and local laws, rules, and regulations (collectively, “Laws”). You also agree to the terms of the Privacy Policy, High Risk/Acceptable Use Policy, and other policies as applicable found at https://www.propay.com/en-US/legal/(“Policies”). You will assist us if we are required to ascertain your compliance with any Rules, Laws, PCI DSS, or Policies. We may, within our sole discretion, suspend the Services for a reasonable period of time required to investigate suspicious or unusual activity, and we shall have no liability for any losses you may attribute to any such suspension.. We may reverse Card transactions we deem to violate this agreement, the Laws, Rules, PCI DSS, or Policies, and you agree to reimburse us for any such reversal. If any terms of this agreement conflict with the Rules, including PCI DSS, the Rules will govern.
3.3 THIRD PARTY SERVICE PROVIDERS
You may be using special services or software provided by a third party to assist you in processing transactions, including authorizations and settlements, or accounting functions. You must notify Partner Provider if you use such third-party service providers and ensure that such third parties comply with the Rules (including PCI DSS) and Laws. . If there is unauthorized access to Cardholder data in the possession of you or your agents, you must immediately notify Partner Provider and cooperate with us regarding reasonable requests for information regarding the compromise.
3.4 PROHIBITED PRACTICES
You will not present for processing or credit, directly or indirectly, any transaction not originated as a result of a Card transaction directly between you and a Cardholder or any transaction you know or should know to be fraudulent or not authorized by the Cardholder. We will refer perpetrators of fraudulent transactions, in our discretion, to the appropriate law enforcement agency. You must not honor any Card that is expired or listed on a current Electronic Warning Bulletin file, regardless of whether authorization has been obtained. You must not request an ACH transfer that violates the Rules or Laws. You agree not to initiate any ACH debits or credits to or from a savings account, or a foreign bank or the branch of a foreign bank in a U.S. territory. The term foreign bank does not include: (i) A U.S. agency or branch of a foreign bank; and (ii) An insured bank organized under the laws of a U.S. territory. You may not split transactions into multiple Card transactions except where: (a) partial payment is entered on the transaction record and the balance of the transaction amount is paid in cash or by check at the time of transaction; or, (b) the amount represents an advance deposit in a Card transaction completed in accordance with this agreement and the Rules. You will not use the Services to accept amounts representing the refinancing of an existing uncollectible obligation, debt, or dishonored check of a Cardholder. You may not process transactions for, receive payments on behalf of, or (unless required by Law) redirect payments to a third party. You must not use the Services for high risk transactions or illegal activities, as per the Policies.
3.5 USE OF TRADEMARKS
The Card Brands are the sole and exclusive owners of their marks and your use of their marks must comply with the Rules. We are the sole and exclusive owner of our marks and your use of our marks will fully comply with our policies and instructions. At any time, we may prohibit your use of the marks or require changes to your use of the marks as we deem necessary or appropriate. Your right to use our marks and the Card Brand marks will cease upon termination of this agreement and you agree not to contest the ownership of the marks for any reason.
4. ACCEPTING PAYMENT
4.1 CARD ACCEPTANCE
You will honor, without discrimination, any valid Card properly tendered by a person asserting to be the person in whose name the Card is issued (“Cardholder”). Terms specific to American Express cards are set forth in section 13. You may elect not to accept Visa and/or Mastercard branded debit cards, but you must provide ProPay with prior written notice of such election. You will properly disclose to the Cardholder, at the time of the Card transaction, your name, return policy, and other limitations you may have on accepting returned merchandise. Your refund polices for purchases made with a Card must be at least as favorable as your refund policy for purchases made with any other form of payment. Our name will appear in conjunction with your name on Cardholders’ statements. You will not accept any payments from a Cardholder relating to previous charges for merchandise or services, and if you receive such payments, you will promptly remit them to us.
4.2 CARD AUTHORIZATION
No later than 72 hours from the time you initiate a transaction, but prior to completing it, you will request an authorization for the transaction using equipment meeting specifications determined by ProPay. This authorization request must include your name and account identifier, the Card expiration date, the ZIP code of the customer’s billing address, and the total amount of the transaction, including taxes. ProPay may also require additional information in your request, such as: (a) CVV2 code or the equivalent; (b) a brief description of the goods or services involved; (c) the transaction authorization number; and, (d) if applicable, adjacent to the signature line, a notation that all sales are final. When authorization is obtained, you will be deemed to warrant the identity of the customer as the Cardholder. Authorizations are not a guarantee of acceptance or payment of a transaction and do not waive any provision of this agreement, or otherwise validate a fraudulent transaction or a transaction involving the use of an expired Card. We reserve the right to refuse to authorize any transaction.
4.3 SALES TRANSMITTALS
You will retain a copy of the sales transmittal for the completed transaction in accordance with the Rules for 25 months or such longer period as the Rules may require. Within three business days of our request, you will produce copies of sales transmittals and other transaction evidence, otherwise ProPay will have chargeback rights with respect to such transactions.
4.4 RECURRING TRANSACTIONS
You must obtain the Cardholder’s prior written consent for recurring transactions, including a description of the product and the frequency and duration of the recurring charge, and notify the Cardholder that he or she may cancel recurring billing charges at any time. You must retain evidence of such written consent for 24 months from the date you submit the last recurring billing charge. You will honor any Cardholder cancellation, and if this agreement is terminated for any reason, you will, at your own cost, advise all Cardholders to whom you submit recurring billing charges that you no longer accept the Card for amounts owed.
4.5 ACH PROCESSING
To enable you to make and accept ACH payments, you authorize us to originate credit or debit records for the purpose of a funds transfer (“Entries”) into the ACH network. We will use reasonable efforts to originate Entries on your behalf in accordance with this agreement. You must only submit Entries for bona fide transactions with your customers made in the ordinary course of business in accordance with this agreement, the Rules, and Laws. You shall obtain and maintain appropriate authorizations in accordance with the Rules from each of your customers for each ACH transaction. All disputes between you and any of your customers relating to any ACH transaction must be resolved between you and that customer. If ProPay receives any notice of an ACH dispute or NACHA inquiry, we will forward such notice directly to you. ProPay bears no financial responsibility for any disputed transaction. You must maintain an unauthorized return rate, as described in the Rules, below 0.5% of originating debits.
5. DISPUTES
5.1 YOUR DUTY TO MONITOR
ProPay will not, and has no obligation to, confirm the validity of the recipient or the underlying transaction pursuant to which funds are transferred. We assume no liability for any unauthorized transfer request and the attendant transfer of funds, unless and until we receive appropriate and timely notice by you of the unauthorized transfer requests. You must promptly and consistently inspect your transaction history. Immediately report any possible errors.
5.2 DISPUTES, INQUIRIES, AND CHARGEBACKS
All disputes between you and any of your customers relating to any ACH transaction must be resolved between you and that customer. If ProPay receives any notice of an ACH dispute or NACHA inquiry, we will forward such notice directly to you. Working with Provider Partner, we will handle Card Brand inquiries about your card transactions, in addition to disputes between you and a customer involving card payment transactions. Based on customer disputes we may reverse Card transactions (“chargebacks”), and we will offset the value of such chargebacks from monies owed to you. You must not reenter or reprocess any Card transaction that has been charged back, but instead allow the chargeback process to proceed to its conclusion as described in the Rules. If you disagree with a chargeback, you may request a chargeback reversal within the applicable Card Brand’s timeline in its Rules. (“Excessive Activity”) means: chargebacks in excess of .50% of the transaction ratio of your Card transactions; or, chargebacks in excess of .50% of the transaction ratio of the dollar amount of your Card transactions; or, returns in excess of 3% of the transaction ratio of your Card transactions; or, denied transactions in excess of 5% of the transaction ratio of your Card transactions. The existence of Excessive Activity will be a breach of this agreement and may result in action as we deem necessary, including, but not limited to, termination or suspension of processing privileges or creation or maintenance of a reserve. We may revoke or reverse any credit given to you where: (i) the Card transaction was not made in compliance with this agreement and the Laws, Rules, and Policies; (ii) the Cardholder disputes liability to us for any reason, including but not limited to those chargeback rights enumerated in the Rules; (iii) the Card transaction was not directly between you and the Cardholder; or (iv) a deposit to you was made erroneously.
5.3 REFUND CREDITS
You will not submit a credit relating to any Card transaction not originally submitted to us, nor will you submit a credit that exceeds the amount of the original Card transaction.
6. CONFIDENTIALITY & DATA SECURITY
6.1 CONFIDENTIALITY
You must retain in strictest confidence all information and data belonging to or relating to our business, and will safeguard such information and data by using the same degree of care, but no less than a reasonable amount of care, that you use to protect your own confidential information.
6.2 DATA SECURITY
You must keep secure all systems and media containing account, Cardholder, or transaction information (physical or electronic) and destroy in a manner that will render the data unreadable all such media that is no longer necessary or appropriate to store. If you store Cardholder account numbers, expiration dates, and other personal Cardholder data in a database, you must follow Card Brand guidelines on securing such data. You may not retain or store magnetic stripe or CVV2, CVC2, or CID data after authorization. You shall maintain industry “best practices” regarding continuity procedures and systems to ensure security of Cardholder account information in the event of a disruption, disaster, or failure of your respective data storage system and/or facility. You agree to display your consumer privacy policy on your website as well as your security method for transmission of Cardholder data.
7. FEES, TAXES & IRS REPORTING
7.1 FEES
Fees for the Services are set out in a fee schedule provided to you by Provider Partner. In certain instances, ProPay may charge additional fees as follows:
| Processing Fee (for unclaimed property transferred to a governmental body as permitted by law) | Up to $80 |
| Printed Monthly Statement Fee (per month – if requested) | Up to $10 |
| Intensive Investigation Fee (for reasonable time spent in excess of three hours to respond to requests related to Merchant from ProPay’s sponsor bank, the Card Brands, government and other regulatory bodies including, but not limited to, investigation of high value chargebacks, subpoenas, levies or temporary restraining orders) | $180 per hour |
| ACH Stop Payment/Customer Cancellation Fee (per item) | $20.00 |
7.2 DEPOSIT OF FUNDS TO MERCHANT POOL ACCOUNT
Our sponsor banks will deposit to the non-interest bearing pooled account titled in the name of our sponsor bank for the benefit of all ProPay merchants (“Merchant Pool Account”) all amounts of Card and ACH transactions complying with the terms of this agreement and the Rules. We will instruct our sponsor bank to move funds owed to you from the Merchant Pool Account to an account you designate with Provider Partner (“Designated Account”).
7.3 ELECTRONIC FUNDS TRANSFER AGREEMENT
You authorize ProPay to initiate, process, transmit, and settle through our sponsor bank ACH debits or credits to you Designated Account. Your authorization will remain in effect after termination of this agreement and until ProPay has received written notice terminating this authorization and all your obligations to ProPay have been paid in full. You irrevocably authorize us to immediately debit the Designated Account for the amounts of any chargebacks, ACH returns, fines, losses, and costs we may incur because of your use of the Services. You may change the Designated Account, but no more than once every 90 days, and must promptly notify Provider Partner of any changes.
7.4 RESERVE
ProPay may, in its reasonable discretion, establish a reserve if it believes there is a risk of potential chargebacks, returns, or any other risk or liability associated with your use of the Services or to ensure current or future payment owed to ProPay. We will provide you with notice of the reserve and the terms of the reserve. ProPay may require that a certain portion of your transaction proceeds be held by us in reserve for a certain period of time, or that you make a lump sum payment for the reserve. ProPay may change the terms of the reserve at any time by providing you with notice of the new terms. ProPay has the right to use your funds in the Merchant Pool Account or funds otherwise owed to you to establish, increase, or maintain funds in reserve. We may hold a reserve as long as we deem necessary to mitigate risks associated with your transactions. You understand and agree that if you are required to establish a reserve, you have an obligation under this agreement to maintain at all times the balance in the reserve set by ProPay. ProPay may, without notice, apply funds designated as reserves against any outstanding amounts owed to us under this agreement. ProPay may also debit the reserve to exercise its rights under this agreement to collect any amounts due to us including, without limitation, rights of set-off and recoupment. You agree that you are liable for all obligations associated with your use of the Services even after the release of any reserve. ProPay reserve the right to hold your reserve for up to 270 days following termination of your use of the Services.
7.5 ADJUSTMENTS
All transactions and deposits are subject to our audit and final verification, and may be adjusted for inaccuracies. All credits provided to you are provisional and subject to chargebacks and adjustments in accordance with the Rules, whether or not a transaction is charged back by the Card issuer.
7.6 TAXES & IRS REPORTING
To comply with IRS 1099-K reporting requirements, we may be required to file a form 1099-K with the U.S. Internal Revenue Service (IRS). We may collect federal backup withholding upon transaction settlement, on behalf of the IRS, from you if you do not supply your legal name, SSN or EIN, or if you fail to respond to a request from us to verify the same.
8. YOUR WARRANTIES & INDEMNIFICATION
8.1 REPRESENTATIONS AND WARRANTIES
You represent and warrant to us: (1) that all information you submit to us relating to your application to use and continued use of the Services is correct, complete, and fully describes and details the nature, type, and scope of the business in which you are engaged; (2) that you are at least 18 years of age; (3) that, if an individual account, you are a sole proprietorship validly existing in the United States or its territories, and if an entity, that the entity was validly formed, registered and is in good standing in at least one of the fifty United States or its territories; (4) that you have never been placed on the Mastercard MATCH system or the Combined Terminated Merchant File, and if so, you have disclosed this to us or to Partner Provider; and (5) that all transactions are bona fide and no transaction involves the use of a Card for any purpose other than the purchase of goods or services from you and does not involve a Cardholder obtaining cash from you unless allowed by the Rules and agreed in writing with us.
8.2 INDEMNIFICATION
You agree to indemnify, defend, and hold us harmless for and from any and all loss, cost, expense, claim, damage, and liability (including attorneys’ fees and costs, and collections costs) paid or incurred by us and arising from, caused by, or attributable to, any of the following: (1) any of your acts or omissions with respect to your use of the Services; (2) acting any Card transaction processed under this agreement, (3) any breach by you of this agreement; (4) willful misconduct, fraud, intentional tort or negligence by you or that of your employees, agents or representatives; (5) action by us exercising any right we have under this agreement, Laws, Rules, or Policies.
9. PROPAY’S LIABILITY & DISCLAIMER OF WARRANTIES
9.1 LIMITATION OF LIABILITY
Any liability we have to you under this agreement, whatever the basis of the liability, will not exceed in the aggregate the amount of $5,000. In no event will we be liable for indirect, special, or consequential damages.
9.2 DISCLAIMER OF WARRANTIES
The Services are provided “AS IS” and “AS AVAILABLE.” We make no warranty, express or implied, regarding the Services, and nothing contained in this agreement will constitute such a warranty. To the extent allowed by Law, we disclaim all implied warranties and conditions, express, implied or statutory, including without limitation those of merchantability and fitness for a particular purpose, the implied warranties of title and/or non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. Each party acknowledges that it has not entered into this agreement in reliance upon any warranty or representation except those specifically set forth herein.
10. SECURITY INTEREST & BANKRUPTCY
This agreement will constitute a security agreement under the Uniform Commercial Code wherein you grant to us a security interest in and lien upon: (a) all funds representing amounts owing you under this agreement at any time in the Merchant Pool Account, regardless of the source of such funds; (b) all funds at any time in reserve, regardless of the source of such funds; (c) present and future Card transactions; (d) any amount which may be due to you under this agreement, including, without limitation all rights to receive any payments or credits under this agreement; and (e) upon our request, any other security to secure your obligations under this agreement. (collectively, the “Secured Assets”). You agree to execute financing statements or other documents to evidence this security interest. These security interests and liens will secure all of your obligations under this agreement and any other agreements now existing or later entered into between you and us and we will have all rights afforded under the Uniform Commercial Code, any other applicable law, and in equity. We may exercise this security interest without notice or demand by making an immediate withdrawal or freezing of your Secured Assets. You represent and warrant that no other person or entity has a security interest in the Secured Assets and you agree to obtain from us written consent prior to granting a security interest of any kind in the Secured Assets to a third party. You agree that this is a contract of recoupment and as such, we are not required to file a motion for relief from a bankruptcy action automatic stay to realize on any of the Secured Assets. Nevertheless, you agree not to contest or object to any motion for relief from the automatic stay filed by us.
11. GOVERNING LAW, JURISDICTION, WAIVER OF JURY TRIAL
This agreement will be governed by and construed in accordance with the laws of Utah except where federal law is applicable. You agree that all performances and transactions under this agreement will be deemed to have occurred in Georgia and that your entry into and performance of this agreement will be deemed to be the transaction of business within the state of Georgia. You agree that the exclusive jurisdiction and venue for any disputes hereunder shall be an appropriate court located in Muscogee County, Georgia. You and we waive any right to trial by jury in any action concerning any rights or disputes under this agreement.
12. MISCELLANEOUS
12.1 AGENCY RELATIONSHIP
You authorize us with respect to the Services to act as your agent for the limited purposes of holding, receiving, and disbursing funds on your behalf. Your authorization permits ProPay to generate an electronic funds transfer to process each payment transaction. This authorization will continue until this agreement is terminated. You agree that ProPay’s receipt of transaction proceeds satisfies your customers’ obligations to you.
12.2 FORCE MAJEURE
No party will be liable to the other party for any failure or delay in its performance of this agreement if such failure or delay arises out of causes beyond the control and without the fault or negligence of such party.
12.3 SEVERABILITY AND WAIVER
If any provision of this agreement is held invalid, illegal, void, or unenforceable by reason of any judicial decision, all other provisions of this agreement shall nevertheless remain in full force and effect. No course of dealing, delay, or failure to enforce any provision or exercise any right under this agreement by us shall be construed as a waiver or estoppel of such provision or right, nor shall it amend this agreement or affect the validity of this agreement or curtail our ability to enforce such provision or exercise such right in the future. All waivers must be in writing and signed by us.
12.4 RIGHTS AND REMEDIES CUMULATIVE
The rights conferred upon us in this agreement are not intended to be exclusive of each other or of any other rights and remedies we have under this agreement, at law, or in equity. Rather, each right we have at law or in equity will be cumulative and concurrent and in addition to every other right.
12.5 ENTIRE AGREEMENT
This agreement, including, Policies, the Rules, and any amendment or supplement to this agreement or other referenced agreements, all of which are incorporated into this agreement, constitutes the entire agreement between the parties, and all prior or other agreements or representations, written or oral, are superseded by this agreement.
12.6 CONSTRUCTION
The headings used in this agreement are inserted for convenience only and will not affect the interpretation of any provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.
12.7 ASSIGNABILITY
This agreement may be assigned by us, but may not be assigned by you without our prior written consent.
12.8 AMENDMENTS
You are bound by this agreement as it may be amended or revised at any time upon notice to you. It is your sole responsibility to review and maintain familiarity with the agreement, Rules, Law and Policies. If you do not agree to the any amendments and do not wish to be bound the terms and conditions thereto, you shall provide written notice to Provider Partner. If you do not agree to the terms of the amendment, your right to use the Services will be terminated.
12.9 CONSENT TO DO BUSINESS ELECTRONICALLY, ELECTRONIC SIGNATURE, COMMUNICATION, AND NOTICES
You consent to do business electronically, which means that you agree that all ProPay agreements and Policies, including amendments thereto and documents referenced therein, as well as any notices, instructions, or any other communications regarding transactions and your agreements with ProPay (all of which are referred to herein as the “Communications”) may be presented, delivered, stored, retrieved, and transmitted electronically. You must keep Provider Partner informed of any change in your electronic or mailing address or other contact information. Your electronic signature, including, without limitation clicking “Agree and Continue” or an action of similar meaning or significance, shall be the legal equivalent of your manual signature. You may withdraw your consent to doing business under the ProPay agreements and policies electronically at any time by contacting Provider Partner and withdrawing your consent to transact business electronically. If you do so, this agreement will be terminated. However, any Communications or transactions between us before your withdrawal of such consent, will be valid and binding. Any written notice to us must be sent to: ProPay, Inc., 2675 West 600 North, Lindon, UT 84042, and if to you: to the last address shown on Provider Partner’s records.
12.10 TERMINATION
We may terminate the agreement at its sole and absolute discretion, effective immediately, upon written, electronic, or oral notice to you.
13. AMERICAN EXPRESS
Important Note: The following sections apply only if you accept American Express Cards. If there is a conflict between any of the following sections and any other section of this agreement as it applies to American Express Cards, the following sections will govern.
13.1. AMERICAN EXPRESS COMPLIANCE.
You authorize ProPay and/or its affiliates to submit American Express Transactions to, and receive settlement on such Transactions from, American Express on behalf of Merchant. You agree to comply with all applicable Laws, Rules and other regulations, including the American Express Merchant Operating Guide requirements, which are incorporated into this agreement by reference as if they were fully set forth in the agreement. The American Express Merchant Operating Guide may be viewed at: www.americanexpress.com/merchantopguide. You shall abide by and fully comply with DSR and PCI DSS. A copy of the American Express Data Security Requirements (“DSR”) can be obtained online at www.americanexpress.com/dsr. You acknowledge and agree to: (i) ensure data quality and that Transaction Data and customer information are processed promptly, accurately, and completely, and in compliance with the American Express Technical Specifications; (ii) report all instances of a Data Incident immediately to ProPay after discovery of an incident;, and (iii) being aware of and adhering to privacy and data protection Laws; and (iv) provide specific and adequate disclosures to Card-members regarding collection, use, and processing of personal data. You certify that all indebtedness arising from Transactions will be for bona fide sales of goods and services (or both) at your business locations and free of liens, claims, and encumbrances other than ordinary sales taxes.
13.2. HIGH CHARGE VOLUME SPONSORED MERCHANTS.
In the event that your Estimated Annual Charge Volume becomes $1,000,000 USD or greater, you will become a direct Card-accepting merchant under the standard American Express acceptance program and cease to be a sponsored merchant under ProPay. As a direct Card-accepting merchant, you will be bound by the then-current American Express Card acceptance agreement and American Express will set pricing and other fees payable by you for card acceptance.
13.3. PROCESSING RESTRICTIONS.
You are prohibited from processing Transactions or receiving payments on behalf of, or (unless required by law) re-directing payments to any other party. Provided, however, that you may sell and assign future American Express-related Transaction receivables to ProPay, its affiliated entities and/or any other cash advance funding source that partners with ProPay or its affiliated entities, without consent of American Express. Notwithstanding the foregoing, ProPay prohibits you from selling or assigning future American Express-related Transaction receivables to any third party.
13.4. THIRD PARTY BENEFICIARY RIGHTS.
You understand and covenant that you are not a third-party beneficiary under ProPay’s agreement with American Express, including all schedules and exhibits, or the American Express Rules. You acknowledge and agree that American Express is a third-party beneficiary under this agreement between you and ProPay. This means American Express has the rights, but not the obligation, to enforce the terms of this agreement against you.
13.5. AMERICAN EXPRESS LIABILITY.
You acknowledge and agree that in no event shall American Express, its affiliates, agents, successors, or assigns be liable to you for any damages, losses, or costs incurred, including incidental, indirect, speculative, consequential, special, punitive, or exemplary damages of any kind (whether based on contract, tort, including negligence, strict liability, fraud, or otherwise, or statutes, regulations, or any other theory), arising out of or in connection with the agreement.
13.6. MERCHANT WEBSITE DISPLAY REQUIREMENTS.
You will adhere to the following website information display guidelines in the event a you have a website and/or operate an e-commerce business (“Merchant Website”). The Merchant Website must display the following:
a. An accurate description of the goods/services offered, including the currency type for the Transaction (e.g., U.S. Dollars). Note: Transaction currency must be in U.S. Dollars.
b. Your physical address in the U.S.
c. An email address or telephone number for customer service disputes.
d. Return/refund policy.
e. A description of your delivery policy (e.g., no overnight delivery).
f. A description of your security practices (e.g., information highlighting security practices you use to secure Transactions on your systems, including Transactions conducted on the Internet).
g. A statement of known export restrictions, tariffs, and any other regulations.
h. A privacy statement regarding the type of personal information collected and how the information is used. Additionally, you must provide to customers the option to decline being included in marketing campaigns or having their personal information included on lists sold to third parties.
13.7. COMMUNICATION
a. You agree that ProPay may disclose to American Express information from the agreement and otherwise regarding you and your Transactions, and that American Express may use such information: (i) to perform its responsibilities in connection with American Express Card Acceptance; (ii) to promote the American Express Network; (iii) to perform analytics and create reports; (iv) for any other lawful business purposes including commercial marketing communications purposes within the parameter of the Program Agreement, (v) for important transactional or relationship communication from American Express, and (vi) to screen and/or monitor you in connection with American Express marketing and administrative purposes.
b. You agree you may receive messages from American Express, including important information about American Express products, services, and resources available to its business. These messages may be sent to your mailing address, phone numbers, email addresses or fax numbers. You may be contacted at its wireless telephone number and the communications sent may include autodialed short message service (SMS or “text”) messages or automated or prerecorded calls. You may opt-out of receiving future commercial marketing communications from American Express by contacting ProPay; however, you may continue to receive marketing communications while American Express updates its records to reflect this choice. Opting out of commercial marketing communications will not preclude you from receiving important transactional or relationship messages from American Express.
13.8. TERMINATION
a. ProPay has the right to terminate your participation in American Express Card Acceptance immediately upon written notice to you: (i) if you breach any of the provisions of this agreement applicable to American Express Card Acceptance, including, but not limited to, the American Express Merchant Operating Guide; or (ii) if ProPay has cause to believe you are engaged in illegal or fraudulent activity; or (iii) upon American Express’s request.
b. You may opt out of accepting American Express at any time by written request to ProPay without directly or indirectly affecting your rights to accept other Cards.
c. In the event your participation in American Express Card Acceptance is ended for any reason, you must immediately cease all use of and remove all American Express branding and marks from your business location(s), website(s) and anywhere else they are displayed.
13.9. REFUND POLICY
Your refund policies for American Express-related Transactions must be at least as favorable as your refund policy for purchase with any other Card, and the refund policy must be disclosed to cardholders at the time of purchase and in compliance with applicable Law. You may not bill or attempt to collect from any cardholder for any American Express-related Transaction unless: (a) a Chargeback has been exercised, (b) You have fully paid for such Chargeback, and (c) You otherwise has the right to do so.
Dated: January 16, 2024. Any subsequent changes to this Error Resolution Policy will be dated and can be found and read in the corresponding Error Resolution Policy on the Payabli website.
1. Liability for Unauthorized Transactions. You can inspect your transaction history at any time by logging in to your Payabli Account on the Payabli website and clicking on any one of the available reporting functions. It is very important that you contact us at once if you believe your user ID or password has been compromised, or if someone has transferred or may transfer money using your account without your permission. Under applicable regulations, the extent of your liability for an unauthorized transaction may be determined by your promptness in notifying us if someone has gained access to your password, or if a payment or withdrawal shown in your history is incorrect or unauthorized. Notifying us quickly may limit your liability:
a. Payabli will reimburse you for loss from an unauthorized ACH transaction that is originated through Payabli that occurs within 60 days after the transaction you claim is unauthorized is posted to your account history reports, or within 60 days after you otherwise become aware of unauthorized access to your account. Payabli shall not be liable to you for: (a) any indirect, special or consequential damages (under contract or tort theories of law), including damages for lost revenue, lost profit or other economic damage, as a result of the breach of this Agreement, even Payabli has been advised or has foreseen the possibility of such damages or (b) any losses caused by your acts or omissions.
b. If you do not notify Payabli within 60 days after receiving notice, you may not recover any funds that you lost after the 60 days, if Payabli can prove that the loss could have been stopped or avoided if you had notified Payabli within that time. Payabli may extend the 60-day time period for notification in its sole discretion.
2. Notifying Payabli of Errors and Unauthorized Transactions. Promptly and consistently examine the transaction history related to your Payabli Account using the process described above. Immediately notify Payabli via e-mail of any possible errors that may appear on your transaction history. To notify us if you believe there has been an error or unauthorized transaction related to your Payabli Account, send an email notice as soon as possible to support@Payabli.com. The email notice must include: (1) your name and account number; (2) the dollar amount of the asserted error; (3) a description of the asserted error; and, (4) an explanation of why you believe an error exists and, if known, the cause of the error. The email notice must not include any full Social Security Number, credit card number, debit card number or prepaid card number. The email notice must be received by Payabli within 60 days after the transaction, which is the source of the possible error or unauthorized transaction, becomes available for viewing in the transaction history of your Payabli Account. You may not make a claim against Payabli for any loss or expense relating to any asserted error or unauthorized transaction for 60 days immediately following Payabli’s receipt of your email notice referenced above. During that 60 day period, Payabli will be entitled to investigate the asserted error or unauthorized transaction. If you do not notify Payabli of the unauthorized transaction or error within the given timeframe you may lose liability protection, as described in paragraph 1 above.
Payabli will advise you of the results of our investigation within 20 business days after we hear from you (30 business days for transactions at a point of sale terminal or outside the United States) and if we have made an error, we will correct it promptly. However, Payabli reserves the right, in its sole discretion, to take up to 45 days to investigate your complaint or question (90 days for transactions at a point of sale terminal or outside the United States). Should Payabli elect to extend the time it takes to investigate your complaint or question, we will provisionally re-credit your Account within 10 days for the amount you think is in error, so that you will have use of the money during the time it takes us to complete our investigation.
If we determine that there was no error, we will send you an explanation via email of the determination and we may debit any provisional credit, any fees, and/or interest provisionally credited in relation to the alleged error. You may ask for copies of the documents that we used in our investigation, subject to an applicable copy fee.
3. Our Liability for Errors. In the event Payabli does not complete a transaction on time or in the correct amount, according to our agreement with you, we will be liable for your losses or damages proximately caused by this failure. However, there are some exceptions. For instance, we will not be liable if:
• Through no fault of ours, you do not have enough available funds to make the transaction. • Any terminal or system was not working properly and you knew about the breakdown when you started the transaction. • Circumstances beyond our control (such as fire or flood) prevent the transaction, despite reasonable precautions that we have taken.
In the event that we discover a processing error, whether the favor is in your or Payabli’s favor, Payabli will rectify the error. If the error results in your receiving less money than to which you were entitled, Payabli will credit your Payabli Account for the amount of money you should have received. If the error results in you receiving more money than to which you were entitled, then Payabli reserves the right to correct the transactions that were incorrectly executed, including but not limited to debiting your Payabli Account, regardless of the nature and cause of the error.
4. Confidentiality. We will disclose information to third parties about your Payabli Account or the transactions you complete with the Card associated to your Payabli Account only in accordance with our Privacy Policy, including:
• In order to process and complete your transactions, including verifying the authenticity of the transaction; • In order to comply with government agency or court orders, including proper requests from law enforcement agencies, or to conduct investigations of fraud or violations of our User Agreement; or • If you give us your written permission via email.
Please see our Privacy Policy for a complete description of our use and protection of your Account information, including our use of “cookies.”
5. What Constitutes a Business Day. Payabli’s business days are Monday through Friday. Saturday, Sunday, and federal and Florida State holidays are not considered business days.
6. Stop Payments. You have the right to cancel or stop any preauthorized transfer, such as a subscription fee, from your Payabli Account. You can cancel the preauthorized transfer at any time prior to the day the payment is scheduled by logging in to your Payabli Account.
7. Retrieval Requests. Upon written email request, copies of documentary evidence of transactions on your Payabli Account are available for income tax and other purposes at a cost of $10.00 USD per item. As long as the computer you use to access your Payabli Account is connected to a functioning printer, you can always print out your transaction history, or the details of a specific transaction, without any additional charge.
Last Updated:JANUARY 12, 2024
Any subsequent changes to this Electronic Communication Policy will be dated and can be found and read in the corresponding Electronic Communication Agreement on the Payabli website. This Policy is made and entered into by and between Payabli, Inc., and you, the Payabli Account holder. The words “you” and “your” refer to the person who has applied for and accepted or used a Payabli Account, including any authorized user of the Account. “Payabli Account” or “Account” refers to the Account set-up by Payabli that includes the capability of electronic communication and disclosure of Account Information. “Payabli, Inc.,” “Payabli,” “we,” “our,” and “us” refer to Payabli, Inc., a Delaware Corporation and its corporate partners or affiliates. You consent to receiving all communications from Payabli electronically. This consent is described below. Please read it carefully. Consent to Conduct Business Electronically 1. Applying Electronically. You must apply to enter into the Agreement with us electronically. 2. Electronic Communications. All Payabli Agreements and Policies, all amendments to any of these Agreements and Policies, all documents related to these Agreements and any notices, instructions, agreements, or any other communications regarding Transactions, your Agreements, 2FA information, application information, payment information, and receipts (all of which are referred to herein as the “Communications”) may be presented, delivered, stored, retrieved, and transmitted electronically, including but not limited to email and Short Message Service communications (“SMS Notifications”). 3. Executing Transactions Electronically. These Agreements, Policies and Transactions thereunder can only be executed using electronic records and electronic signatures, except as otherwise provided for in the Payabli Services Agreement and the Cardholder Agreement. 4. Consenting to Do Business Electronically. The decision whether to do business electronically is yours, and you should consider whether you have the necessary hardware and software capabilities. By entering a mobile phone number you certify that (a) you are the individual identified as the owner of the account, or (b) have the permission of the individual identified as the owner of the account. The minimum hardware and software specifications required by Payabli are detailed in the continuation of this Section. You are required to provide and maintain your own hardware and software. For access to Payabli’s website via the internet, at a minimum, you must provide: (1) an Internet browser that supports 128-bit encryption, (2) a personal computer, operating system, and telecommunications connections to the Internet capable of supporting the foregoing, (3) sufficient electronic storage capacity on your computer’s hard drive or other data storage unit and (4) a printer that is capable of printing from the applicant’s browser and e-mail software. It is highly recommended that you use a firewall and frequently updated anti-virus software. In order to access, view, and retain SMS Notifications that we make available to you, you must have: (i) an SMS-capable mobile phone; (ii) an active mobile phone account with a communication service provider; and (iii) sufficient storage capacity on your mobile phone. Your consent to do business electronically, and our agreement to do so, also applies to the establishment and maintenance of any account or Transaction in connection with your Agreements and Policies. 5. Withdrawal of Consent. You have the right to withdraw your consent to doing business under these Agreements and Policies electronically at any time. You may also withdraw your consent by emailing us at support@payabli.com. If you do so, your Payabli Services Agreement and Cardholder Agreement will be terminated, as provided in the application Sections of said Agreements. However, any Communication or Transaction between us during the period after your consent to doing business electronically, and before your withdrawal of such consent, will be valid and binding on all parties and you must comply with the other requirements of these Agreements and Policies. At our option, we may treat your provision of an invalid mobile phone number, or the subsequent malfunction of a previously valid mobile phone number, as a withdrawal of your consent to receive SMS Notifications. We will not impose any fee to process the withdrawal of your consent to receive SMS Notifications. Any withdrawal of your consent to use SMS Notifications will be effective only after we have a reasonable time period to process your withdrawal. 6. Changes to Your Contact Information. You must keep us informed of any change in your electronic or mailing address, mobile phone number, or other contact information. You shall provide Payabli notice of any change to your contact information, including your email address, by contacting Payabli Customer Service at support@payabli.com. 7. SMS Charges. There is no service fee for receiving SMS Notifications from us, but you are responsible for any and all charges, including, but not limited to, fees associated with text messaging imposed by your communications service provider. Please consult your mobile service carrier’s pricing plan to determine the charges for sending and receiving text messages. These charges will appear on your phone bill from your mobile service carrier. SMS Notification frequency depends on account status and settings.
8. Other Important Terms. Additionally, you agree that we may send any SMS Notifications through your communication service provider in order to deliver them to you and that your communication services provider is acting as your agent in this capacity. You agree to provide a valid mobile phone number for Communications. Additionally, you agree to indemnify, defend and hold us harmless from and against any and all claims, losses, liability, cost and expenses (including reasonable attorneys’ fees) arising from your provision of a mobile phone number that is not your own or your violation of any applicable federal, state or local law, regulation or ordinance. Your obligations under this paragraph shall survive termination of this agreement. SMS Notifications are provided for your convenience only. Receipt of each SMS Notification may be delayed or impacted by factor(s) pertaining to your communications service provider(s). We will not be liable for losses or damages arising from any disclosure of account information to third parties, non-delivery, delayed delivery, misdirected delivery or mishandling of, or inaccurate content in, the SMS Notifications sent by us.
9. Printing. You should print this document and keep a copy in your files.
10. Paper Copies. If you wish to obtain paper copies of Communication and Transaction, you may contact Customer Success at support@payabli.com to determine if paper copies or summaries are available and the cost of providing them to you.11. Consent. When you select the “Submit” button, you agree to all the terms above and contained in this Agreement regarding conducting business electronically. By selecting the “Submit” button, you hereby acknowledge that you have read and understand the terms and conditions of this Electronic Communication Agreement which have been set forth above, and that you agree to be bound by the terms and conditions of this Agreement. Further, you understand that your act of checking the “Submit” button represents your electronic signature and represents your authorization to be bound by this Agreement and your intent that this Agreement have legal and binding effect. You also hereby represent and warrant that this Agreement will not violate any law, or conflict with any other agreement to which you are subject. ELECTRONIC COMMUNICATIONS AGREEMENT. YOU AGREE TO TERMS OF THE PAYABLI ELECTRONIC COMMUNICATIONS AGREEMENT AS AMENDED FROM TIME TO TIME (“E-COMMUNICATIONS AGREEMENT”) WHICH IS INCORPORATED INTO THE PAYABLI SERVICES AGREEMENT AND THE CARDHOLDER AGREEMENT BY REFERENCE AS IF FULLY SET FORTH HEREIN. YOU HEREBY AGREE TO RECEIVE ELECTRONIC COMMUNICATIONS AT YOUR VALID E-MAIL ADDRESS AND ALSO AT YOUR LOGGED-IN PAYABLI ACCOUNT FOR THE FOLLOWING CATEGORIES OF INFORMATION: (1) THE PAYABLI AGREEMENTS, POLICIES AND ANY AMENDMENTS OR SUPPLEMENTS TO IT; (2) THE RECORD OF PAYMENTS AND OTHER TRANSACTIONS THROUGH YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, PAYMENT HISTORIES AND CONFIRMATIONS OF INDIVIDUAL TRANSACTIONS; (3) ANY INITIAL, PERIODIC OR OTHER DISCLOSURES OR NOTICES PROVIDED IN CONNECTION WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION, THOSE REQUIRED BY FEDERAL OR STATE LAW; (4) ANY CUSTOMER SERVICE COMMUNICATIONS, INCLUDING, WITHOUT LIMITATION, COMMUNICATIONS WITH RESPECT TO CLAIMS OF ERROR OR UNAUTHORIZED USE OF THE SERVICES; AND, (5) ANY OTHER COMMUNICATIONS RELATED TO THIS AGREEMENT. YOUR VALID EMAIL ADDRESS IS THE ONE WHICH YOU PROVIDE TO PAYABLI ON YOUR APPLICATION. YOU AGREE TO PROVIDE PAYABLI WITH NOTICE OF ANY CHANGE TO YOUR EMAIL ADDRESS and mobile phone number AND AGREE TO BE BOUND BY ANY COMMUNICATIONS SENT TO YOU BY PAYABLI AT THE LAST EMAIL ADDRESS and mobilE phone number PROVIDED BY YOU TO PAYABLI.
Last Updated: September 25, 2023 Any subsequent changes to this Electronic Funds Transfer Agreement will be dated and can be found and read in the corresponding Electronic Funds Transfer Agreement on the Payabli website. This Agreement is made and entered into by and between Payabli, Inc., and you, the Payabli Account holder. Certain Definitions. In this Agreement, the words “you” and “your” refer to the person who has applied for and accepted or used a Payabli Account, including any authorized user of the Account. “Payabli Account,” or “Account” refers to the Account set-up by Payabli that includes the capability to transfer funds electronically. “Payabli, Inc.,” “Payabli,” “we,” “our,” and “us” refer to Payabli, Inc., a Delaware Corporation and its corporate partners or affiliates. “Banking Partner” refers to the bank sponsor through which Payabli will submit any Automated Clearing House (“ACH”) electronic funds transfer request. “ACH Credit” refers to a transaction which electronically transfers funds from your Account to an account at a financial institution, while an “ACH Debit” refers to a transaction which electronically transfers funds to your Account from an account at a financial institution. “ACH Item” refers to an ACH credit, an ACH debit, or both. The words “Intra-Payabli Transfer” refer to an electronic transfer of funds between any type of an Account held with Payabli and any other Payabli Account. The words “business day” means every Monday through Friday, except Federal and Florida state holidays. “Affiliation” or “Affiliation Status” refers to the relationship between you and a third party entity with which Payabli has entered into an agreement for special terms and/or pricing (“Affiliated Company”). The headings in this Agreement are for convenience of reference only and will not govern the interpretation of the provisions hereof. Unless it would be inconsistent to do so, words and phrases used in this document should be construed so the singular includes the plural and the plural includes the singular. Sections Included in this Document: 1. Checking Account 2. Required Checking Account Validation 3. ACH Transactions 4. Intra-Payabli Transfers 5. Error Resolution 6. Warranties 7. Indemnification 8. Miscellaneous Provisions 1. Checking Account. You may establish and maintain a checking account as described in your Account profile to facilitate the transfer of funds due to you from your Account. As part of this agreement, you irrevocably authorize Payabli to debit your Checking Account for any fees, payments or penalties you owe or may owe Payabli relating to ACH or Intra-Payabli transactions. You authorize Payabli to initiate reversal or adjustment entries and initiate or suspend such entries as may be necessary to grant you conditional credit for any entry. 2. Required Checking Account Validation. In order to add funds to your Account, from your checking account, you must first register a checking account in your Account profile. Registering a checking account in your Account profile is not required before withdrawing funds from your Account into your checking account or withdrawing funds from your Account to another checking account. When registering a checking account in your Account profile, you will be required to enter your bank name, the routing number of your bank, and your checking account number. Once this information is entered, you will be required to validate that the routing number and checking account number are correct and that you have the proper authorization to access the account. The process of validating your checking account occurs in one of two ways depending on your Account type and affiliation status: 1. You will be required to verify the amounts of two small deposits that Payabli will make into your checking account. This process may take 2 to 7 business days for the deposits to be credited in your checking account. When you receive your bank statement, find the two deposits. You may also be able to learn the amounts of the deposits from your bank’s automated phone system or web site, if available. Once you know the two deposit amounts, login to your Account and enter the two amounts as directed. 2. You will be required to make at least two transfers from your Account into your checking account, and receive at least one direct commission deposit into your Account (if you are affiliated with an organization that has requested commission payment capability into your Account). Once one of these two validation methods is completed, you will then be able to add funds into your Account from your checking account. Both of these methods are intended to demonstrate that you have the proper custodianship over the checking account from which you will be adding funds into your Account. 3. ACH Transactions. When you request Payabli to add funds to your Account from your checking account, withdraw funds from your Account into your checking account, or withdraw funds from your Account to another checking account, you are requesting an electronic funds transfer through the ACH system. By doing so, you authorize Payabli to initiate, process, transmit, and settle through a Banking Partner, an ACH debit or credit in the amount that you specify. You agree that your ACH requests are accurate, timely, and have been authorized by the party into whose account the credit will be made, or by the party from whose account the debit will be made. Your authorization will remain in effect after termination of this Agreement and until Payabli has received written notice terminating this authorization and all your obligations to Payabli have been paid in full. a. Adherence to ACH Rules. You agree to be bound by the rules of the National Automated Clearing House Association (“NACHA”) in effect as they may be amended from time to time. You also agree not to request an ACH transfer that violates the laws of the United States, which include, but are not limited to, sanctions enforced by the Office of Foreign Assets Control (“OFAC”). b. ACH Returns, Rejections, Cancellations, and Acceptance. You may be charged a fee (see Exhibit 1 for a schedule of fees) for any ACH transactions that result in a returned ACH item, such as, but not limited to, those caused by insufficient funds in your checking account, closure of your checking account, or if the bank account number or other information you provided is incorrect. Payabli reserves the right to resubmit for collection any ACH item authorized by you that is returned. Payabli will notify you within 2 (two) business days of the receipt of a returned ACH item. Payabli may reject any entry that does not comply with requirements outlined in this Agreement. We will notify you within 2 business days from the day the rejected entry would otherwise have been transmitted. Payabli may resubmit any rejected ACH item up to 3 times. Upon written request, Payabli will attempt to cancel an entry before transmitting it. However, Payabli shall have no liability if the effect of cancellation fails. Payabli is not responsible or liable in any way for any entry not accepted by Payabli’s Banking Partner. c. Provisional Credits. All credits to your Account resulting from an ACH debit are provisional until final settlement is made through a Federal Reserve Bank. If Payabli does not receive final settlement, you will refund Payabli the amount of any such entry. d. Accuracy of Information. You acknowledge that if a financial institution name and number are incorrect or inconsistent, we may rely on the identifying number alone, even if the number identifies a financial institution, person, or account other than the one named. e. Fees. You will pay Payabli fees for services in accordance with Exhibit 1 – Schedule of Fees, which is incorporated into this Agreement by reference. Such fees will be calculated and debited from amounts due to you under the Payabli Account concurrently with transaction activity, or will be netted out from the funds due you under this Agreement. You will immediately pay Payabli any amount incurred by Payabli attributable to the transfer of funds pursuant to this Agreement, including but not limited to non-sufficient fund fees that overdraws amounts due to you under the Payabli Account, Reserve Account, or at any other financial institution for any amount you owe Payabli under this Agreement or under any contract now existing or later entered into between you and Payabli. You may also be subject to different fees and limitations other than those set forth in Exhibits 1 and 2 relating to ACH transactions, if the ACH transactions are submitted to your Payabli Account, on your behalf, by an approved affiliate utilizing Payabli’s XML interface. These fees are published by the affiliate that submits the transactions on your behalf. These fees supersede the fees set forth on Exhibit 1 and are therefore binding upon you. f. Transfer Amount Limitations. For a listing of current limitations associated with the electronic transfer of funds, see Exhibit 2 – Schedule of Limitations, which is incorporated into this Agreement by reference. Currently, Payabli limits the amount you are allowed to add to your Account from your checking account. If you wish to increase the limitations allowed after an introductory period deemed appropriate by Payabli, please contact a customer service representative. Payabli, in its sole discretion, reserves the right to limit the maximum amount of funds you are allowed to add to your Account from your checking account to an amount even less than the current amount identified in Exhibit 2. Payabli also, in its sole discretion, reserves the right to limit the maximum amount of funds you are allowed to withdraw from your Account into your checking account, and/or withdraw from your Account to another checking account. For fraud and anti-money laundering purposes, Payabli reserves the sole and exclusive right to review large electronic transfer of funds to or from your Account before releasing the funds. Payabli also reserves the right to refuse any transfer of funds at our discretion. g. Type of Bank Account Required and Change Limitation. You may only use a checking account of a financial institution located in the United States of America (“US”) or US Territories (Puerto Rico, Guam, American Samoa, and the US Virgin Islands). The electronic transfer of funds to or from a foreign bank or the branch of a foreign bank in a territory of the United States is also prohibited. The term foreign bank does not include: (i) A U.S. agency or branch of a foreign bank; and (ii) An insured bank organized under the laws of a territory of the United States, Puerto Rico, Guam, American Samoa, or the U.S. Virgin Islands. The electronic transfer of funds to or from a savings account is also prohibited. Please ensure that the bank routing and the checking account numbers are correct or you may be subject to a fee (see Exhibit 1 – Schedule of Fees). If you have any doubt as to the accuracy of the bank routing or the checking account numbers, please call your bank for verification. You may change the checking account in your Account profile, but no more than once every 90 days. h. Potential Liability. You can inspect your transaction history at any time by logging in to your Account online and selecting one of the available reporting functions. It is very important that you contact Payabli at once if you believe your user ID or password has been compromised, or if someone has transferred, or may transfer funds using your Account without your permission. Under applicable ACH regulations, the extent of your liability for an unauthorized transaction may be determined by your promptness in notifying Payabli if someone has gained access to your password, or if any transaction shown in your account history reports is incorrect or unauthorized. Notifying Payabli quickly limits your liability: 1. Payabli will reimburse you for loss from an unauthorized ACH transaction that is originated through Payabli that occurs within 60 days after the transaction you claim is unauthorized is posted to your account history reports, or within 60 days after you otherwise become aware of unauthorized access to your account. Payabli shall not be liable to you for: (a) any indirect, special or consequential damages (under contract or tort theories of law), including damages for lost revenue, lost profit or other economic damage, as a result of the breach of this Agreement, even if Payabli has been advised or has foreseen the possibility of such damages or (b) any losses caused by your acts or omissions. 2. If you do not notify Payabli within 60 days after receiving notice, you may not recover any funds that you lost after the 60 days, if Payabli can prove that the loss could have been stopped or avoided if you had notified Payabli within that time. If a good reason (such as an extended vacation or medical event) kept you from notifying Payabli, the 60-day time period may be extended by Payabli in its sole discretion. 4. Intra-Payabli Transfers. When you request Payabli to transfer funds from your Payabli Account to another Payabli Account or Payabli Payments Account, or from your Payabli Payments Account to a Payabli Account or Payabli Payments Account, you are requesting an Intra-Payabli funds transfer. By doing so, you represent that your transfer requests are accurate, timely, and authorized for Payabli to make such a transfer. Your request must be in the form required by Payabli. You must identify the Account into which to transfer funds by the Account holder’s e-mail address. If the e-mail address belongs to a Payabli Account or Payabli Payments Account holder, the funds will immediately transfer from your Account to the Account you specified. If the e-mail address does not belong to a Payabli Account or Payabli Payments Account holder, the transfer request may be denied. a. Liability and Obligations. Payabli assumes no liability for any unauthorized transfer request and the attendant transfer of funds, unless and until Payabli receives appropriate and timely notice by you of the unauthorized transfer requests. Payabli will have no obligation to transmit entries if Payabli believes, in its sole discretion, that the funds are unavailable or the entry is invalid or subject to reversal, or if you are in default of this Agreement. You also understand that Payabli will not, and has no obligation to, confirm the validity of the recipient or the underlying transaction pursuant to which the funds are transferred. b. Accuracy of Information. You acknowledge that if the e-mail address is inconsistent or incorrect, payment of the entry may still be made on that basis. c. Fees. You will pay Payabli fees for services in accordance with Exhibit 1 – Schedule of Fees, attached hereto and incorporated into this Agreement by reference, and fees specified in your agreement with Payabli for the particular services you are receiving. Such fees will be calculated and debited from amounts due to you from your Payabli Account and/or Payabli Payments Account concurrently with transaction activity, or will be netted out from the funds due you under this Agreement. You will immediately pay Payabli any amount incurred by Payabli attributable to this Agreement, including but not limited to non-sufficient fund fees that overdraws amounts due to you under the Payabli Account or Reserve Account for any amount you owe Payabli under this Agreement or under any contract now existing or later entered into between you and Payabli. You may also be subject to different fees and limitations other than those set forth in Exhibits 1 and 2 (also attached hereto and fully incorporated herein by reference) relating to Intra-Payabli transfers, if the Intra-Payabli transfers are submitted to your Payabli Account, on your behalf, by an approved affiliate utilizing Payabli’s XML interface. These fees are published by the affiliate that submits the transactions on your behalf and are therefore binding upon you. d. Transfer Amount Limitations. For a listing of current limitations associated with Intra-Payabli funds transfers, see Exhibit 2 – Schedule of Limitations, which is incorporated into this Agreement by reference. Payabli reserves the right to limit the maximum amount of Intra-Payabli funds you are allowed to transfer. For fraud purposes, Payabli reserves the right to review large Intra-Payabli funds transfers before releasing the funds. Payabli also reserves the right to refuse any Intra-Payabli funds transfers at our discretion. e. Reversals, Rejections, and Acceptance. Payabli may reverse any entry if it believes, in its sole discretion, that the entry may be subject to dispute or reversal. You understand and agree that your request to transfer funds is final and irrevocable, that you have no right to reverse or stop such an entry once the entry is communicated to Payabli, and you hereby waive any right you may have of recourse against Payabli or to dispute or reverse a request to transfer funds. An Intra-Payabli funds transfer under this Agreement is the equivalent of sending cash to the recipient. Payabli has no obligation whatsoever to any proposed recipient of funds. In the event of any dispute between you and a funds recipient, you agree that such dispute will be settled between you and the proposed recipient, and you hereby indemnify and hold harmless Payabli against all liabilities, claims and damages incurred by and brought against Payabli by any third party arising out of this Agreement, including but not limited to reasonable attorneys’ fees and costs. Payabli may reject any entry that does not comply with requirements outlined in this Agreement. We will notify you within 2 business days from the day the rejected entry would otherwise have been transferred. 5. Error Resolution. You agree to the terms of the Payabli Error Resolution Policy as amended from time to time, which may be obtained upon request or at: https://www.payabli.com/documents-error-resolution-policy/, and which is incorporated into this Agreement by reference as if fully set forth herein. 6. Warranties. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, PAYABLI MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THE AGREEMENT, PAYABLI EXPRESSLY DISCLAIMS, AND YOU EXPRESSLY WAIVE, ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO DESCRIPTIONS OR SPECIFICATIONS, WHETHER OR NOT INCORPORATED INTO THIS AGREEMENT, SHALL CONSTITUTE WARRANTIES OF ANY KIND. 7. Indemnification. You shall indemnify and hold harmless Payabli and its Banking Partner(s) for any action they take with respect to your Account, including funds in any Operating Account, and/or Reserve Account, and/or Cardfunding Account You will also indemnify and hold harmless the Bank Partner(s) for acting in accordance with any instruction from you or Payabli regarding your Account. Further, you shall indemnify and hold harmless Payabli and its Banking Partner(s), its employees, officers, directors, shareholders and agents from any and all loss, cost, expense, claim, damage and liability (including attorneys’ fees and costs) paid or incurred by any one or more of them, arising from, caused by, or attributable to, any of the following: 1. Any and all claims or damages made by third parties arising out of this Agreement, including but not limited to all attorneys’ fees and costs paid or incurred by Payabli in the enforcement of the Agreement and those resulting from any transaction processed under this Agreement, or any breach by you of this Agreement and those related to any bankruptcy proceeding; 2. Willful misconduct, fraud, intentional tort or negligence by you or that of your employees, agents or representatives; 3. Any and all claims or damages by you which are the result of theft, embezzlement, unauthorized use, transfer or withdrawal of funds with respect to your Account. 8. Miscellaneous Provisions. Entire Agreement. This Agreement, including Exhibits 1 and 2, and any amendment or supplement to this Agreement or other referenced agreements, all of which are incorporated into this Agreement, constitutes the entire agreement between the parties, and all prior or other agreements or representations, written or oral, are superseded by this Agreement. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Florida, except where Federal law is applicable. Jurisdiction/Waiver of Jury Trial. THE PARTIES AGREE THAT ALL PERFORMANCES AND TRANSACTIONS UNDER THIS AGREEMENT WILL BE DEEMED TO HAVE OCCURRED IN FLORIDA AND THAT YOUR ENTRY INTO AND PERFORMANCE OF THIS AGREEMENT WILL BE DEEMED TO BE THE TRANSACTION OF BUSINESS WITHIN THE STATE OF FLORIDA. YOU AND PAYABLI CONSENT TO AND AGREE THAT, THE EXCLUSIVE JURISDICTION AND VENUE FOR ANY DISPUTES HEREUNDER SHALL BE AN APPROPRIATE FEDERAL OR STATE COURT LOCATED IN MIAMI, FLORIDA. YOU AND PAYABLI WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION CONCERNING ANY RIGHTS OR DISPUTES UNDER THIS AGREEMENT. Construction. The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. Assignability. This Agreement may be assigned by Payabli, but may not be assigned by you directly or by operation of law, without the prior written consent of Payabli. If you nevertheless assign this Agreement without Payabli’s consent, the Agreement will be binding on the assignee. If you sell your business, and the new owners incur fines, fees, or penalties, the original owner will be held personally liable for all fines, fees, or penalties, and any other liabilities of the new owners. Notices. Any notice under this Agreement will be deemed given and delivered upon the earlier of: (a) actual receipt or (b) five days after being deposited in the United States mail, and addressed, if to Payabli, to: Payabli, Inc., 25 SE 2nd Ave, Suite 550, #288 Miami, Florida, 33131, and if to the other parties: to the last address shown on the records of the sender or (c) one (1) business day after being sent by email or other electronic communication if to you at the last email address provided by you to Payabli and if to Payabli at support@payabli.com. Attorneys’ Fees. You will be liable for and will indemnify and reimburse Payabli for all attorneys’ fees, with or without suit, court costs, collection agency fees not to exceed 50% of the amount owed, and other costs and expenses paid or incurred by Payabli in the enforcement of this Agreement, or in collecting any amounts due from you to Payabli or resulting from any breach by you of this Agreement. Customer Contact. You authorize Payabli to contact your customers or their bank if they determine that such contact is necessary to find out information about any payment transaction between you and the customer. Also, you will provide to Payabli, upon Payabli’s request, contact information for your customers as deemed necessary and reasonable by Payabli. Amendments. This Agreement, and the Agreements and/or Policies referenced and incorporated herein may be amended, modified, or revised at any time, without notice. While Payabli may notify you as this Agreement and/or the Agreements and/or Policies referenced herein are modified, it is your sole responsibility to review and maintain familiarity with this Agreement and/or Agreements and/or Policies referenced herein, including any changes that may be made to these documents, respectively, from time to time thereto. The amendments to this Agreement and/or Agreements and/or Policies referenced herein will become effective and binding upon you immediately and contemporaneously as the amendments are published to the Payabli website. In the event you do not agree to the aforementioned amendments and do not wish to be bound the terms and conditions thereto, you shall provide written notice to Payabli (including by submitting to Payabli Customer Service at support@payabli.com) by providing your name, your current email address on file with Payabli, the last four (4) digits of your Social Security Number and a statement that you do not agree to the terms and conditions. If you do not agree to the terms and conditions of the amendment, your account will be terminated and closed. Notwithstanding the foregoing, (a) changes to fees authorized by this Agreement or in the Exhibits 1 and/or 2, will be effective upon the giving of notice to you and (b) any fee increase, change in Rules or other requirement imposed by NACHA may be passed on to you and will be effective upon the giving of notice to you. Severability and Waiver. If any provision of this Agreement (including Exhibits 1 and 2) is held invalid, illegal, void or unenforceable by reason of any judicial decision, all other provisions of this Agreement shall nevertheless remain in full force and effect. No course of dealing, delay or failure to enforce any provision or exercise any right under this Agreement, by Payabli or Bank Partner(s) shall be construed as a waiver or estoppel of such provision or right, nor shall it amend this Agreement or affect the validity of this Agreement or curtail the ability of any party to enforce such provision or exercise such right in the future. All waivers must be signed by Payabli. Independent Contractors. Payabli, Bank Partner(s), and You will be deemed independent contractors and none will be considered an agent, joint venturer, or partner of the other. Survival. Sections 1-8 of this Agreement and the applicable Exhibits in effect upon the date of termination shall survive termination of this Agreement. Exhibit 1 – Schedule of Fees You will be charged the following fees unless they are waived, adjusted by special arrangement, or changed by affiliate specific pricing: Account Fees 1. Initial Fee – Opening Payabli Account up to $39.95* 2. Annual Fee – Yearly optional fee for keeping account open up to $39.95* 3. Account Continuation Fee – Monthly Fee if annual fee not paid up to $10.00* * The mentioned fee is subject to change; login or signup to see the exact amount Exhibit 2 – Schedule of Transfer Limitations The following limitations will be applicable to you unless they are waived, adjusted by special arrangement, or changed by affiliate specific limitations: 1. ACH Debit Maximum of $250 per Transfer and $1,000 per Month Minimum of $1 per Transfer 2. ACH Credit No Maximum Limit Minimum of $1 per Transfer 3. Intra-Payabli Transfers No Maximum Limit Minimum of $1 per Transfer
Last updated: September 25, 2023
NOTICE.
Please read these terms of use carefully. By accessing any Payabli web page, mobile application, or software development kit (collectively referred to as “Payabli Web Services”), you agree to be bound by the terms and conditions below. You also agree to be bound by the applicable legal agreements, including without limitation the Payabli Privacy Policy, Electronic Communication Agreement, and Credit Policy . These terms of use are a contract between you and Payabli and governs your use of all Payabli Web Services. If you do not agree to these terms, do not access any Payabli Web Services.
COPYRIGHT ® Payabli, Inc. 2023. ALL RIGHTS RESERVED.
Copyright in the pages and in the screens displaying the pages, and in the information and material therein and in their arrangement, is owned by Payabli, Inc. (“Payabli”) unless otherwise indicated.
USE OF INFORMATION AND MATERIALS.
The information and materials contained in the Payabli Web Services – and the terms, conditions, and descriptions that appear – are subject to change. Not all products and services are available in all geographic areas. Your eligibility for particular products and services is subject to final determination and acceptance by Payabli.
NO WARRANTY.
The information and materials contained in the Payabli Web Services, including text, graphics, links or other items, are provided “as is” and “as available”. Payabli does not warrant the accuracy, adequacy, or completeness of this information and materials and expressly disclaims liability for errors or omissions in this information and materials. No warranty of any kind, implied, expressed or statutory, including without limitation warranties of non-infringement or third party rights, title merchantability, fitness for a particular purpose and freedom from computer virus is given in conjunction with the information and materials in the Payabli Web Services.
LIMITATION OF LIABILITY.
In no event will Payabli be liable for any damages, including without limitation direct or indirect, special, incidental, or consequential damages, losses or expenses arising in connection with the Payabli Web Services or use thereof or inability to use by any part, or in connection with any failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure, even if Payabli or it representatives are advised of the possibility of such damages, losses or expenses. Hyperlinks to other internet resources are at your own risk; the content, accuracy, opinions expresses, and other links provided by these resources are not investigated, verified, monitored or endorsed by Payabli.
SUBMISSIONS.
All information submitted to Payabli via Payabli Web Services shall be deemed and remain the property of Payabli and Payabli shall be free to use, for any purpose, any ideas, concepts, know-how or techniques contained in information a visitor to Payabli Web Services provides Payabli through its use of the Payabli Web Services.
Any rights not expressly granted herein are reserved. If you have any questions or comments about the site, please send them to contact@payabli.com.
Last Updated: September 25, 2023 At Payabli, Inc. (“Payabli”), we respect your concerns about privacy. This Privacy Notice (“Notice”) relates to the collection of personal information from users of our websites (“Sites”) and web and mobile applications (“Apps”) in the course of our business activities. For the purpose of this Notice, Payabli, “we” and “us” refer to Payabli, Inc. and its subsidiaries and affiliates, as the context requires. Our privacy practices vary depending on the services we provide. For some products and services, where required, we will provide additional privacy notices before collecting your personal information. We may also provide different or supplemental privacy notices for different countries. Please read this Notice carefully. If you have any questions, you may contact us at contact@payabli.com or by the methods provided in the “Contact Us” section below. Payabli provides financial transaction products and services for commercial and non-commercial enterprises. Those products and services include payment processing and additional payment solution products and services, (collectively referred to as the “Services”). For our Customers, information about disclosures, transfers and other processing of personal information as part of the Services is set out in the documentation provided to them at or before onboarding. This Notice is a supplement, not a replacement, to that documentation and relates specifically to information we collect through our Sites and Apps. Please be aware that not all of the information in this Notice will be directly applicable to our handling of your personal information. This Notice provides an overview of the possible circumstances in which we may interact with your personal information. If you have any questions about our processing of your personal information, please contact us at contact@payabli.com. Payabli collects personal information from users of our Sites and Apps who might be our Customers, prospective Customers, and Customer end users (“End User”) who engage with our Sites and Apps as part of the Services we provide to our Customers. Because Payabli’s relationship with Customer End Users is indirect, we process such End User personal information only for the purposes of providing the Services, in accordance with our Customer’s instructions. If you are an End User who has a relationship with one of our Customers and you have a question about how your personal information is collected, used, or shared, or would like to exercise any rights you may have with respect to your personal information, please contact the Customer directly. Personal Information We Collect Through our Sites and Apps, subject to your consent if required by law, we may collect the following personal information: ● Identifiers (including name and contact information such as telephone number, email address, or postal address) ● Information protected against security breaches (such as driver’s license and government identification information for the purpose of ID verification) ● Commercial information (such as your access and purchase history, the products and services we provide to you, your marketing preferences, or information you provide in any communication with us or when you participate in any blog, community or forum on our Sites) ● Internet/electronic activity (see “Cookies and Other Tracking Technologies” for additional information) ● Professional or employment related information (such as your status with the organization with which you are affiliated or information you provide as a job applicant) ● Geolocation ● Inferences from the foregoing such as your preferences, characteristics or predispositions Data anonymization and aggregation. Subject to your consent if required by law, we may anonymize or aggregate your personal information in such a way as to ensure that you are not identified or identifiable from it, in order to use the anonymized or aggregated data. For example, we may use anonymized or aggregated data for statistical analysis including to analyze trends, for product development, and for risk assessments and cost analysis. We may share anonymized or aggregated data with our parent, subsidiaries, affiliates, service providers, or with other third parties. Sources of Personal Information We collect personal information from several sources that we use to provide our Services to you, to analyze and improve our Services, and to communicate with you. Those sources include: Information that you provide to us: We collect personal information that you provide to us when you set up an account with us, use our Services, or communicate with us. For example, if you register for an online account with us, we may request your name, contact information and business information. Providing us with personal information about yourself is voluntary, and you can always choose not to provide certain information, but then you may not be able to take advantage of or participate in some of the Services. Information collected from third parties: We may collect information about you from third parties in the course of providing our Services to you. For example, we may collect personal information from credit-reporting agencies to enable us to identify you, prevent possible fraud and to deliver the Services to you. Information collected through technology: When you visit our Sites or Apps or interact with an email we send to you, we may collect certain information automatically such as your account or device identifier, and usage information such as pages that you visit, information about links you click, the types of content you interact with, the frequency and duration of your activities, and other information about how you use our services. You have the ability to express your preference regarding some of the ways we collect information through technology in some of our services (see “Cookies and Other Tracking Technologies” for more information). We may collect geolocation in the Sites or Apps for the purpose of enabling location-based Services. How We Use the Personal Information We Collect Subject to your consent if required by law, we may use your personal information for the following business purposes: ● Providing our Services and related support: including to help fulfill your requests for products and Services; to communicate with you about your use of our Services; to respond to your inquiries; to provide troubleshooting and other technical support; and for other customer service and support purposes. ● Protecting the integrity of the Services: including to verify your identity; to detect and prevent fraud and unauthorized activities; to facilitate software; to preserve the integrity of the Services and our systems, and prevent unauthorized access and activities; to enforce our applicable terms; and to protect the rights and safety of others. ● Analyzing and improving the Services and our business: including to better understand how users access and use our Services; to evaluate and improve the Services and our business operations; to develop new features, offerings and Services; to conduct surveys and other evaluations; and for other research and analytical purposes. ● Personalizing the Services: including to tailor content we send or display on our Sites and Services (e.g., for your geographic area); to offer personalized help and instructions; and to otherwise personalize your experiences with the Services. ● Advertising, marketing and promotional purposes: including to reach you with more relevant ads and to evaluate, measure and improve the effectiveness of our ad campaigns; to contact you about our Services, and those of our affiliates, as well as other information we think may interest you. Where required by applicable law, we will obtain your consent to use your personal information for marketing and related purposes. ● Securing and protecting our business: including to protect and secure our business operations, assets, services, network and information and technology resources; to investigate, prevent, detect and take action regarding fraud, unauthorized access, situations involving potential threats to the rights or safety of any person or third party, or other unauthorized activities or misconduct. ● Defending our legal rights: including to manage and respond to actual and potential legal disputes and claims, and to otherwise establish, defend or protect our rights or interests, including in the context of anticipated or actual litigation with users or third parties. ● Auditing, reporting, corporate governance, and internal operations: including relating to financial, tax and accounting audits; audits and assessments of our operations, privacy, security and financial controls, risk, and compliance with legal obligations; our general business, accounting, record keeping and legal functions; to maintain appropriate business records; to enforce company policies and procedures; and related to any actual or contemplated merger, acquisition, asset sale or transfer, financing, bankruptcy or restructuring of all or part of our business. ● Complying with legal obligations: including to comply with the law, our legal obligations and legal process, such warrants, subpoenas, court orders, and regulatory or law enforcement requests. How we Share the Personal Information We Collect For each category of personal information we collect, we may share such information with the following categories of third parties in the manner and for the purposes described below: ● With Payabli affiliates where such disclosure is necessary to provide you with our Services or to manage our business. ● With third-party service providers whose systems, applications, products or services help us to provide the Services. For example, we share personal information with IT service providers who help manage our back office systems or administer our Sites and Apps. These service providers have agreed to confidentiality restrictions and have agreed to use any personal information we share with them, or which they collect on our behalf, for the purpose of providing the contracted service to us. ● With our Customer with whom you are also engaging when you use the Services. For example, you may be using a Payabli Site to log into your account with our Customer. Payabli will share the personal information you provide in order to fulfill your request. You may also receive communications from the Customer. Each such Customer operates independently from Payabli and their collection and use of your personal information is not subject to this Notice but to their own privacy notices. ● With other third parties including financial institutions such as Visa®, MasterCard®, Discover® Card services, and banking institutions involved in supporting, clearing or settling payment-related transactions. ● We may share identifiers with logistics service providers to enable the delivery of packages to individuals. ● We may share internet/electronic activity information (see “Cookies and Other Tracking Technologies” below) with advertisers and analytics providers in order to help us measure our ad campaigns and better understand how individuals interact with our Sites and Apps. ● With other third parties with whom you direct us to share defined categories of your personal information. Payabli may also disclose personal information about you if it believes such disclosure is necessary to comply with laws or respond to lawful requests and legal process, to enforce our agreements, policies and terms of use and to protect or defend the rights, safety or property of Payabli, users of the Services or any person. In addition, subject to applicable legal requirements, we may share personal information in connection with or during negotiation of any merger, financing, acquisition, bankruptcy, dissolution, transaction or proceeding involving sale, transfer, divestiture, or disclosure of all or a portion of our business assets to another company. Unless otherwise disclosed in a specific notice, and subject to your consent where required by applicable law, we do not sell your personal information to third parties for monetary compensation. Our Relationship with Affiliate Companies (Including Sharing and Cross-Border Transfers) Subject to your consent if required by law, we may appoint an affiliate company to process personal information in a service provider role. We will remain responsible for that company’s processing of your personal information pursuant to applicable data privacy laws. By using our Site, participating in any of our Services and/or providing us with your personal information, you consent and agree to the collection, transfer, storage and processing of your information to and in the United States. We will take appropriate steps to ensure that transfers of personal information are in accordance with applicable law, are carefully managed to protect your privacy rights and interests and limited to countries which are recognized as providing an adequate level of legal protection or where alternative adequate arrangements are in place to protect your privacy rights. Login Details and Your Responsibility Subject to your consent if required by law, we will collect and process your personal information as necessary to set up and administer your sign up to, and use of, the log in facility available on our Sites and Apps. We will use “cookies” to “remember” the machine or other device you use to access our Sites (see “Cookies and Other Tracking Technologies” below). Please remember that if we contact you, we will never ask you for your password in an unsolicited email, message or phone call. If you choose to use the log in facility available on our Sites and Apps, you are required to adhere to the security procedures we establish in the documentation we provide you as part of the Services. How we Protect and Dispose of Personal Information We take seriously our responsibility to protect the security and privacy of your personal information. We maintain administrative, technical and physical safeguards designed to protect the personal information you provide against accidental, unlawful or unauthorized destruction, loss, alteration, access, disclosure or use. Any suspected attempt to breach our policies and procedures, or to engage in any type of unauthorized action involving our information systems, is regarded as potential criminal activity. Suspected attempts to access or use our systems in a way that is inconsistent with our legal terms or security controls may be reported to the appropriate authorities. Please remember that communications over the internet such as emails are not secure. We seek to keep secure all confidential information and personal information submitted to us in accordance with our obligations under applicable laws and regulations. However, like all website operators, we cannot guarantee the security of any data transmitted through the internet. When we no longer need your personal information to provide the Services, it will be securely deleted or de-identified in a manner that ensures you cannot be re-identified. Cookies and Other Tracking Technologies A “cookie” is a text file that is stored to your browser when you visit a website. Unique device identifiers like IP address or UDID recognize a visitor’s computer or other device used to access the internet. Unique device identifiers are used alone and in conjunction with cookies and other tracking technologies for the purpose of “remembering” computers or other devices used to access the Sites and Apps. Cookies or similar tracking technologies are used to help us remember information about your visit to the site, like your country, language and other settings. Tracking technologies allow us to understand who has seen which websites, advertisements, or emails we have sent to determine how frequently particular pages are visited, as well as the relevance and effectiveness of our messages. They can also help us to operate our Sites more efficiently and make your next visit easier. Cookies and other tracking technologies can allow us to do various other things, as explained further below. Cookies can be classified by duration and by source: Duration. The Sites use both “session” and “persistent” cookies. Session cookies are temporary – they terminate when you close your browser or otherwise end your “active” browsing session. Persistent cookies remember you on subsequent visits. Persistent cookies are not deleted when you close your browser, and they will remain on your computer or other device unless you choose to delete them (see below for “How to Delete or Block Cookies”). Source. Cookies can be “first-party” or “third-party” cookies, which means that they are either issued by or on behalf of Payabli or by a third-party operator of another website. For an example of a third-party cookie, our Sites may contain features like videos hosted by other companies, which would set a cookie that can be read by the host. Our Sites may use both first-party and third-party cookies. The cookies that we may use on the Sites fall into the following categories: Strictly Necessary Cookies. These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions taken by you such as logging in or filling in forms. You can set your browser to block or alert you about these cookies, but blocking them may impede the functionality of the Sites. Performance Cookies. These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance. Functionality Cookies. These cookies enable the Sites to provide enhanced functionality and personalization. They may be set by us or by third-party providers whose services we have added to our pages. If you do not allow these cookies then some of these services may not function properly. Targeting Cookies. These cookies may be set through our Sites by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant advertisements on other sites. They are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising. How to Delete or Block Cookies and Other Tracking Technologies On some Sites, when technically feasible, we will enable tools to help you make choices about cookies and other tracking technologies. You may also delete or block cookies at any time by changing your browser settings. You can click “Help” in the toolbar of your browser for instruction or review the cookie management guide produced by the Interactive Advertising Bureau available at www.allaboutcookies.org. If you delete or block cookies, some features of the Sites may not function properly. External Links Payabli may provide links on our Sites to other websites that are not under our control. We do not endorse or make any warranty of any type regarding the content contained on such websites or products and services offered on those websites. We make no representation regarding your use of such websites. Please be aware that we are not responsible for the privacy practices of the operators of other websites. We encourage our users to be aware when they leave our Sites and to read the privacy statements of each and every website that collects personal information. This Notice applies solely to information collected by us. You should read any other applicable privacy and cookies notices carefully before accessing and using such other websites. Managing Your Preferences Subject to your consent if required by applicable law, we may use your personal information to provide you with direct marketing information about our products and services as well as those of our global affiliates and third parties. Our direct marketing may be by email, telephone, post or SMS or such other method(s) as may become relevant. In addition, we may provide direct marketing information and permit others to do that as allowed by our customers’ respective contracts. We will take steps to seek to ensure that any direct marketing from us and which is sent by electronic means will provide a simple means for you to stop further communications, in accordance with applicable law. For example, in emails, we may provide you with an “unsubscribe” link, or an email address to which you can send an opt-out request. In addition, if we need your consent for direct marketing communications under applicable law, and if you provide your consent, you will be able to change your mind at any time. Your Legal Rights If you use Payabli for the purpose of engaging with one of our Customers and have questions about legal rights you may have with respect to your personal information collected by our Customer, please consult the Customer with which you have engaged. Subject to certain exemptions, and in some cases dependent upon the processing activity we are undertaking, some users, including residents of the state of California, may have certain rights in relation to their personal information. These rights may include:
| CA Resident Rights | What does this mean? |
| Right to know about personal information collected, disclosed, and sold | You have the right to request that we disclose to you what personal information we have collected, used, disclosed, or sold over the past 12 months. We have provided information about the categories of personal information we have collected, the sources from which we collected it, the purposes for which it was collected, and the third parties with whom we may share it with abov. |
| Right to opt-out of the sale of personal information | You may request that we do not sell your personal information to third parties. |
| Right to request deletion | In some circumstances, you have the right to have your personal information erased or deleted. |
| Right to equal service and prices (“non-discrimination”) | Your choice to exercise your privacy rights will not be used as a basis to discriminate against you in services offered or pricing. |
If your Payabli Merchant Account has a Vermont billing address, we will treat your account as if you had opted out of the sharing of your personal information as set forth in this Notice. We may continue to share your personal information with credit reporting agencies to the extent permitted by applicable law. Children Our Sites are not intended for use by children. We do not solicit or knowingly accept any personal information from persons under the age of 18. Please do not use this website if you are under the age of 18. Changes and Updates We reserve the right, in our sole discretion, to modify, update, add to, discontinue, remove or otherwise change any portion of this Notice, in whole or in part, at any time. When we amend this Notice, we will revise the “Last Updated” date located at the top of the document. We will also take reasonable steps to ensure you are made aware of any material updates including providing you direct communication about such changes or providing a notification through the Services, as appropriate. If you provide personal information to us or access or use our Sites after this Notice has been changed, you will be deemed to have unconditionally consented and agreed to such changes. The most current version of this Notice will be available on the Sites and Apps and will supersede all previous versions of this Notice. Choice of Law Except where prohibited by law, this Notice, including all revisions and amendments thereto, is governed by the laws of the United States, State of Florida, without regard to its conflict or choice of law principles which would require application of the laws of another jurisdiction. Arbitration Except where prohibited by law, by using our Sites and Apps, you unconditionally consent and agree that: (1) any claim, dispute, or controversy (whether in contract, tort, or otherwise) you may have against Payabli and/or its parent, subsidiaries, affiliates and each of their respective members, officers, directors and employees (all such individuals and entities collectively referred to herein as the “Payabli Entities”) arising out of, relating to, or connected in any way with the Services or the determination of the scope or applicability of this agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by JAMS and conducted before a sole arbitrator in accordance with the rules of JAMS; (2) this arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (3) the arbitration shall be held in Miami, Florida; (4) the arbitrator’s decision shall be controlled by the terms and conditions of this Notice and any of the other agreements referenced herein that the applicable user may have entered into in connection with the Services; (5) the arbitrator shall apply Florida law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (6) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only your and/or the applicable Payabli Entity’s individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (7) the arbitrator shall not have the power to award punitive damages against you or any Payabli Entity; (8) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any Payabli Entity exceed $125 USD, and you are unable (or not required under the rules of JAMS) to pay any fees and deposits that exceed this amount, Payabli agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Payabli will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (9) with the exception of subpart (6) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (6) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor Payabli shall be entitled to arbitrate their dispute. For more information on JAMS and/or the rules of JAMS, visit their website at www.jamsadr.com. Contact Us If you are an End User (who has a relationship with one of our Customers) with a question about how your personal information is collected, used, or shared, or would like to exercise any rights you may have with respect to your personal information, please contact the Customer directly. If you have questions about this Notice, or if you want to exercise your rights as described in this Notice, you may submit a request by contacting us as follows: Payabli Inc. 25 SE 2nd Ave, Suite 550 #288 Miami, FL 33131 contact@payabli.com 866-573-0951 In order to honor any access or deletion request, we will require you to provide enough information for us to verify your identity. For example, we may ask you for information associated with your account, including your contact information or other identifying information. If you designate an authorized agent to make a rights request on your behalf, we may require proper proof of that authorization as well as direct verification of your identity from you.