WePay Terms of Service - United States
Dated: November 1, 2019
These Terms of Service are a legal agreement (this "Agreement") between you ("user," "you" or "your") and WePay, Inc., a Delaware corporation ("WePay," "we," "our" or "us"). WePay is a member of the JPMorgan Chase & Co. family of companies. As used in this Agreement, "Service" refers to WePay's payment processing services, as well as our website, any software, programs, documentation, tools, hardware, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you by WePay, directly or indirectly. To use the Service, you must agree to all the terms of this Agreement.
1. Merchant Relationship with WePay
WePay provides the Service to users ("Merchants") to facilitate receipt by Merchants of payments by card and bank transfer. These transactions are between Merchants and persons who pay them ("Purchasers"). Neither WePay, nor any member of the JPMorgan Chase & Co. family of companies, is a party to these transactions.
For payments by card, WePay initiates the payment process by providing information to Paymentech, LLC, a Delaware limited liability company ("Paymentech"). Paymentech is a subsidiary of JPMorgan Chase Bank, N.A., a national banking association ("Chase"), which is a member of Visa U.S.A., Inc., Visa International ("Visa"), MasterCard International Incorporated ("MasterCard"), American Express Travel Related Services Company Inc. ("American Express"), Chase Pay, or other payment card networks, associations, or companies (collectively, the "Card Networks"). Paymentech in its capacity as an authorized processor of transactions and Chase in its capacity as a member of several Card Networks are referred to collectively as the "Bank". The Bank is obligated to pay Merchants under both (a) the provisions of its agreement with WePay, and (b) the by-laws, operating regulations and all other rules, policies and procedures of the Card Networks as in effect from time to time (the "Card Network Rules"), that make the Bank responsible for settling with you as a Merchant. For payments by bank transfer, WePay initiates the payment process by providing information to the Chase through the National Automated Clearing House ("ACH") in accordance with all applicable laws, regulations and The Electronic Payments Association Operating Rules and Guidelines (the "ACH Rules"), each as in effect from time to time.
Merchants must register for WePay directly or through the Platform. To register, a Merchant provides information, including email address and a self-selected password, in order to create an account ("Account"). You may also be issued access keys that may be used to authorize certain transactions. You are responsible for maintaining the secrecy and security of your Account access credentials and for any use of or action taken under them.
WePay or the Platform asks Merchants for additional information to identify each person that opens an Account, such as street address, telephone number, tax identification number (such as Social Security Number), date of birth and beneficial ownership information (where applicable). You agree to provide supplemental documentation upon request (including but not limited to: articles of incorporation, passports, driver's license or a business license). You agree that the identity information provided is complete and accurate to the best of your knowledge and authorize the Platform and WePay, directly or through third parties, to make inquiries or verify that this information is accurate (for example, through social media or third party databases). You specifically authorize WePay and the Platform to obtain your business credit reports from time to time and use them in connection with establishing and maintaining your Account. You agree to promptly notify WePay or the Platform, as applicable, if there are any significant changes to the nature of your business (including changes to any trade name(s)), product lines or services or in the event any person or entity acquires any beneficial ownership interest in you which is twenty-five percent (25%) or more.
You must provide accurate and complete information to WePay and the Platform. Specifically, when you register, you must demonstrate that you can receive email at the email address you provide. If you do not confirm your email address, then (a) fourteen (14) days after you accept your first payment, you will not be able to accept additional payments, and (b) thirty (30) days after you accept your first payment, the Bank will refund to your Purchasers all of the payments you have accepted. In addition, in order to settle the payments you have accepted to your bank account or other payment instrument, you must provide to WePay or the Platform identity and settlement information (such as your bank account details). If you do not provide identity and settlement information, then (a) thirty (30) days after you accept your first payment, you will not be able to accept additional payments, and (b) unless you provide identity and settlement information promptly, the Bank will refund to your Purchasers all of the payments you have accepted. Finally, if at any time WePay or the Platform is unable to verify that the identity information you provided is correct and up-to-date, then, unless you provide verifiable information promptly, (a) WePay will disable your Account so that you cannot accept additional payments, and (b) the Bank will refund to your Purchasers all of the payments that you have accepted but not settled. Neither the Bank, WePay nor the Platform will have any liability to you for your inability to accept payments or for refunds pursuant to this paragraph.
WePay allows individuals, businesses, and non-profit organizations to register for WePay if they are located in one of the 50 United States or the District of Columbia. Residents of Puerto Rico, U.S. territories (such as Guam), and U.S. military bases are not supported. A Merchant must be either a United States citizen, a legal permanent resident of the United States, or a United States business or nonprofit organization having a physical presence in the United States and authorized to conduct business by the state in which it operates. A user who opens an Account must be eighteen (18) years of age or older. You may open an Account for a business or nonprofit organization only if it is legitimate and you have the authority to enter into this Agreement on its behalf. Your acceptance of this Agreement constitutes acceptance by the business or nonprofit organization.
USA PATRIOT ACT: To help prevent the funding of terrorism and money laundering activities, Federal law and internal policies require us to obtain, verify, and record information that identifies each person who opens an account. In order to comply with these requirements, we will ask for your business name, physical address, and government identification number in order to verify your identity.
2. Purchaser Relationship with WePay
This Agreement also applies to Purchasers. In particular, Section 9 of this Agreement applies to Purchasers paying by bank transfer and to payment card information updates.
3. Platform Relationship with WePay
Platforms enter into Platform Terms of Service with WePay.
4. Limitations on WePay's and Others' Responsibility
Neither WePay nor any other third party makes any representations or guarantees regarding Merchants or Purchasers utilizing the Service. Use of our Service in no way represents any endorsement by WePay or any Card Network, of a user's existence, legitimacy, ability, policies, practices, or beliefs. WePay does not have control of, or liability for, goods or services that are paid for with the Service. Merchant acknowledges and agrees that receipt of Purchaser information via the Service does not indicate that the Purchaser’s payment instrument has sufficient available funds, that a transaction will be authorized or processed, or that the transaction will not later result in a chargeback or reversal.
A charitable organization may use WePay to accept payments as a Merchant. Not all charitable organizations are tax-exempt, and not all contributions to charitable organizations are tax-deductible. Charitable organizations are responsible for correctly classifying themselves and their transactions, issuing any required reports and receipts, and making any required tax or other filings. Contributors are responsible for verifying the status of organizations to which they donate and reporting their donations correctly for tax and other purposes. WePay specifically disclaims any liability in this regard.
If we (or the Platform) sell or otherwise provide you with terminals or other equipment, (1) we (or the Platform) are the equipment reseller, not the manufacturer, (2) we (or the Platform) will give you pricing and any additional terms (including any manufacturer’s warranty) before purchase, and (3) by accepting the equipment, you agree to any related additional terms.
5. Merchant Fees
Platforms are responsible for setting fees for transaction processing and exceptions processing and disclosing them to their Merchants. Platforms may charge an additional fee for the value-added services they provide. If the Platform does not set fees otherwise, then WePay charges the Platform’s Merchants 2.9% + $0.30 for transaction processing; $15.00 per chargeback (in addition to the amount of the chargeback); $15.00 per ACH return (in addition to the amount of the return); and a $25.00 research fee (if an Account is deemed abandoned under Section 22 below). If Merchant refunds a payment in full, WePay and Platform will return their transaction processing fees. If Merchant refunds a payment in part, WePay will not return its transaction processing fees, and the Platform may choose whether to return its fees. Merchants must also reimburse WePay for "Payment Network Liabilities" as defined below in Section 8, Our Role and Your Responsibilities. Typically, fees are netted against other funds due to Merchant or debited from the Merchant's bank account or other payment instrument associated with the Merchant’s Account. The Merchant agrees to pay the fees for the Service that are posted from time to time by WePay or by the Platform.
Merchants may increase their prices to include the cost of the fees and disclose these increases to their Purchasers as a "Service Fee". Merchants may only do this in compliance with the applicable Card Network Rules and ACH Rules.
Subject to the terms of this Agreement, WePay and the Platform reserve the right to change our fees. WePay or the Platform will try, but are not required, to give you 30 days’ notice before the effective date of any change in a fee. By continuing to use the Service, you consent to the change in fees. To withdraw your consent, you must close your Account.
6. E-Sign Disclosure and Consent
By accepting this Agreement, you agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, "Communications") that we provide or the Platform in connection with your Account and your use of the Service. Communications include but are not limited to:
- annual disclosures;
- transaction receipts or confirmations;
- communication in relation to delinquent accounts (which may also be by phone, and may be made by WePay or by anyone on its behalf, including a third party collection agent);
- Account statements and history; and
- federal and state tax statements (we may, but are not obligated to, send tax-related information electronically).
We or the Platform will provide these Communications to you by emailing them to you at the primary email address listed in your Account registration, by texting them to you at the primary telephone number listed in your Account registration, by emailing or texting you a link or instructions how to access them on a website, or (if permitted by law) by posting them on the Website. We or the Platform may also provide certain Communications (such as federal and state tax statements) by U.S. mail to the street address listed in your Account registration. Communications are considered received by you within 24 hours of the time they are emailed to you, posted to the Website, or mailed to you. You further agree that your electronic signature has the same effect as your manual, physical signature.
Hardware and Software Requirements
In order to access and retain electronic Communications, you will need the following computer hardware and software:
- a computer or mobile device with an Internet or mobile connection;
- for desktop website-based Communications, a modern web browser that includes 256-bit encryption, such as the current version of Chrome (www.google.com/chrome), Internet Explorer (www.microsoft.com/ie), Mozilla Firefox (www.mozilla.com), or Apple Safari (www.apple.com/safari);
- for application-based Communications, a recent device operating system that supports text messaging, downloading, and applications from the Apple App Store or Google Play store, and the most recent versions of Apple Safari or Google Chrome on iOS or Google Chrome for Android OS;
- access to your primary email address registered with WePay or the Platform; and
- sufficient storage space to save past Communications or an installed printer to print them.
By giving your consent, you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records. It is important for you to retain copies of Communications because they may not be accessible in your Account at a later date.
How to Withdraw Your Consent
You may withdraw your consent to receive Communications electronically by contacting Customer Support, including by writing to "WePay, Inc., 350 Convention Way, Suite 200, Redwood City, CA 94063." If you withdraw your consent to receive Communications electronically, WePay or the Platform may deny your registration for an Account, restrict or close your Account, or charge you additional fees for paper copies.
Requesting Paper Copies of Electronic Communications
If, after you consent to receive Communications electronically, you would like a paper copy of a Communication previously sent to you, you may request a copy within 180 days of the date the Communication was provided to you by contacting Customer Support as described above. We or the Platform will send a paper copy to you by U.S. mail to the street address on file in your Account. You understand and agree that WePay or the Platform may charge you an exceptions fee for each paper copy of a Communication.
Updating Your Contact Information
It is your responsibility to keep your primary email and street address up to date. You understand and agree that if WePay or the Platform sends you a Communication but you do not receive it because your primary email or street address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, WePay or the Platform will be deemed to have provided the Communication to you. Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add WePay or the Platform to your email address book so that you will be able to receive the Communications we send to you.
If your email address becomes invalid such that electronic Communications sent to you by WePay or the Platform are returned, then WePay or the Platform may close your Account, and you will not be able to transact any activity using your Account until we receive a valid, functioning primary email address from you.
7. Prohibited Activities
By registering as a Merchant, you also confirm that you will not accept payments or use the Service in connection with the activities, items or services set forth below. Please contact email@example.com if you have questions about whether these categories apply to you.
|Adult||Adult sites, content, sexual services, child pornography, bestiality, escort services, mail order brides|
|Aggregation||Payment facilitator to other merchants|
|Auctions||Internet auction, bidding fee auction, penny auction|
|Cash, stored value, virtual currency||Cash or cash equivalent, purchase of gold, silver, platinum, palladium, bullion and/or bars (collectibles are not prohibited)|
|Digital Wallet, stored value, prepaid companies, prepaid phone cards or phone services, sale of mobile minutes, or quasi cash|
|Virtual currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world|
|Debt||Bail bond services or bankruptcy lawyers|
|Credit counseling or repair services; debt elimination, consolidation or reduction services; factoring or liquidators|
|Damages, losses, penalties, or fines of any kind; alimony, child support, or other court-ordered payments|
|Debt collection; payment for a dishonored check or for an item deemed uncollectible by another merchant|
|High interest rate non-bank consumer lending, including payday lending and title loans|
|Loan payments transacted on a credit card|
|Drug||Drugs or drug paraphernalia|
|Marijuana dispensaries and related products or services|
|Personal enhancement products or nutraceuticals - vitamins, supplements, herbals, weight loss programs|
|Pharmaceuticals, internet pharmacies|
|Education||For profit higher education|
|Electric car charging||Electric car charging|
|Financial services||Banks, credit unions, savings and loan associates, unit trusts, mutual funds, foreign exchange, Bureau de Change|
|Buy here, pay here (in-house financing)|
|Currency exchanges or dealers|
|Money transfer, wire transfers, money orders, money transmitters, and check cashing, including merchants required to be registered as money services businesses|
|Payable through accounts (foreign or domestic)|
|Gambling, lottery||Gambling or betting, including lottery tickets, casino gaming chips, off-track betting, sports forecasting or odds making, fantasy sports, memberships on gambling-related internet sites (including unlawful Internet gambling as defined in 12 C.F.R. Section 232.2(bb)) and wagers at races, contests, sweepstakes, raffles, and offering prizes as an inducement to purchase goods or services|
|High Risk||Astrology and related prediction or forecasting services|
|Career placement or advice center merchants|
|Cyberlockers, file sharing, file storage|
|Delayed delivery merchants where the good or service is not shipped, delivered, or fulfilled when the card transaction is processed but is to occur at a future date|
|International card sales greater than 20% of total sales|
|Merchants who are known to test or conduct research on animals|
|Merchants who are known to have labor/working condition issues|
|Merchants who are involved in developments that involve land acquisition and involuntary resettlement|
|Merchants who are known to have experienced material community issues (e.g., demonstrations, blockades, security threats)|
|Merchants whose proceeds may have the potential to impact indigenous peoples|
|Merchants who have been subject to allegation and impacts related to human rights violations|
|Money back guarantees exceeding 30 days|
|Motor vehicle sales|
|Online help for classes, homework or assignments|
|Online personal computer technical support|
|Private prison operators|
|Sale of airline, hotel, rental, or other miles or points|
|Sale of products or services identified by government agencies to have a high likelihood of being fraudulent|
|Sale of social media activity|
|Sale or exchange of animals and regulated items such as animal pelts|
|Shipping or forwarding brokers|
|Illegal||Counterfeit or possibly counterfeit goods, or products that infringe on the intellectual property rights of others|
|Deceptive, unfair, or predatory practices|
|Forced child labor/human trafficking, slavery|
|Hate, violence, racial intolerance, terrorism, the financial exploitation of a crime, or items or activities that encourage, promote, facilitate, or instruct others regarding the same|
|Unlawful activities, illegal substances or products, or items that encourage, promote, facilitate, or instruct others regarding the same|
|Investment, real estate||Commodity trading or security trading; equities (including stocks, bonds, or any other ownership position in a corporation)|
|Crowdsourced fundraising for stock or equity|
|Distressed property sales and marketing; real estate filling|
|Goods or services to be delivered more than four (4) months in the future, with an intention of gaining return on investment|
|Mortgage accelerator processors|
|Timeshares, timeshare resales, and related marketing|
|Marketing||Buyers clubs, membership clubs|
|Direct marketing - inbound telemarketing|
|Direct marketing - negative option, renewal, or continuity subscription practices|
|Direct marketing - travel-related arrangement services|
|Discount coupon merchants or online sites|
|Discount medical or dental plans, including discount insurance|
|Door to door sales|
|Lead generation businesses|
|Lifetime payments for timeshares, guarantees, and the like|
|Marketing activities involving "pay only for shipping" and/or "free trial" periods|
|Outbound telemarketers and telecom merchants|
|Rebate or upsell merchants|
|Militia||Cross border military related goods|
|Militia, armed groups or armed gangs|
|Political parties||Consulates, embassies, missions to the United Nations|
|Regulated||Age restricted products or services, such as alcohol|
|Firearms, including ammunition|
|Other weapons that are not related to firearms|
|Tobacco, cigarettes, e-cigarettes|
|Telecomm||Telecommunications, including wireless, cable, satellite, wireline, and ISP|
|Travel||Airlines, including charter air carriers|
|Steamships and Cruise lines|
|Travel agencies or tour operators|
|Travel industry, including car rental and lodging|
In addition, you may not use the Service for:
- Impersonating any person or entity or falsely claiming an affiliation with any person or entity;
- Collecting, or attempting to collect, personal information about users or third parties without their consent, or using such information except as necessary to use the Service;
- Defaming, harassing, abusing, threatening, or defrauding others;
- Posting, transmitting, or distributing content that is false, misleading, unlawful, obscene, indecent, lewd, pornographic, hateful, abusive, inflammatory, or that violates the rights of others (including rights of publicity or privacy);
- Damaging, disabling, overburdening, or impairing WePay, including without limitation, using the Service in an automated manner;
- Interfering with another user's enjoyment of the Service, by any means, including by uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code;
- Creating an Account that is linked to another Account that has engaged in any of the foregoing activities. WePay may use evidence other than your Account information to determine whether you control an Account in someone else's name, including but not limited to Internet Protocol addresses, common business names, phone numbers, and mailing addresses.
If WePay determines that you have received funds resulting from fraud or a prohibited activity, those funds may be frozen, returned to the Purchaser, or seized.
In addition, if we reasonably suspect that your Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Account, your access to the Service, and any of your transactions with law enforcement.
8. Our Role and Your Responsibilities
WePay collects, analyzes and relays information generated in connection with payments between Purchasers and Merchants. You authorize WePay to provide this information to the Bank in order for the Bank to facilitate payments from Purchasers to Merchants through the Card Networks, or the ACH, as applicable. The Bank - and not WePay - actually conducts the settlement of card transactions and ACH transactions to Merchants. WePay does not at any point hold, own or control funds in connection with the Services, nor does WePay transmit money or monetary value. In connection with the Services, WePay does not actually or constructively receive, take possession of or hold any money or monetary value for transmission, and does not advertise, solicit or hold itself out as receiving money for transmission. The Bank is the party with sole responsibility for conducting the settlement of funds between Purchasers and Merchants.
WePay has entered into agreements with the Card Networks and the Bank. You are not a third-party beneficiary of these agreements. Each of the Card Networks is a third-party beneficiary of this Agreement and has beneficiary rights, but not obligations, and may enforce this Agreement against you. Some of the Card Networks may require a direct agreement with you. If you are required to enter into such an agreement and decline to do so, we may suspend or terminate your Account.
You acknowledge that, if you receive payments from American Express exceeding the threshold specified by American Express, you will be converted to a direct card acceptance relationship with American Express and, upon conversion, you will be bound by the then-current American Express Card acceptance agreement and American Express will set the discount and other fees payable by you for American Express Card acceptance.
You agree to be bound by the Commercial Entity Agreement set forth in Exhibit A to this Agreement if it applies to you. The Commercial Entity Agreement applies to you if, for example, you receive payments from any Card Network exceeding the threshold specified by that Card Network. By agreeing to this Agreement (by "click through" or otherwise), you also agree to the terms and conditions of the Commercial Entity Agreement, which constitutes a legal binding contract between you, on the one hand, and Paymentech, LLC and JPMorgan Chase Bank, N.A., on the other hand.
Furthermore, you must abide by the applicable Card Network Rules and ACH Rules. For example, where you accept payment cards on your website, you will display each card's logo with equal size and prominence, and you shall not display a preference for, or discriminate against, one card brand over another. If you are using the WePay subscriptions feature, you agree that it is your responsibility to comply with applicable laws, including the Electronic Funds Transfer Act (Regulation E), including by capturing your customers' agreement to be billed on a recurring basis.
Notwithstanding WePay's assistance in understanding the Card Network Rules and ACH Rules, you expressly acknowledge and agree that you are assuming the risk of compliance with all provisions of the Card Network Rules and ACH Rules, regardless of whether you have possession of those provisions. You agree to reimburse us and the Bank for all fines, fees, penalties, liabilities, or other charges or assessments by a Card Network, the ACH or other payment network relating to your actions or your transactions ("Payment Network Liabilities"). The Card Networks make excerpts of their respective Card Network Rules available on their websites (including usa.visa.com, www.mastercard.com, www.americanexpress.com and www.discover.com). Exhibit B to this Agreement sets forth certain specific requirements of the American Express Merchant Regulations, US. We can provide you with excerpted provisions of the ACH Rules upon your request. If applicable, we can provide you with the Chase Merchant Program Requirements for Chase Pay upon your request
9. Your ACH Payment Authorization
If you are a Merchant or if you are a Purchaser paying by bank transfer, you authorize the Bank to initiate electronic ACH entries to each bank account that you set up on the Website and to initiate adjustments for any transactions credited or debited in error. You agree to be bound by the ACH Rules, and you agree that all ACH transactions that you initiate will comply with all applicable laws. Your authorization will remain in full force and effect until you notify us that you revoke it by contacting Customer Support or by closing your Account. You understand that WePay requires a reasonable time to act on your revocation, not to exceed five (5) business days.
If you are a Merchant, you authorize the Bank to hold, receive, disburse and settle funds on your behalf. Your authorization permits the Bank to generate a paper draft or electronic funds transfer to process each payment transaction that you authorize. Subject to this Agreement, you also authorize the Bank to debit or credit any bank account or other payment instrument that you link to your Account, to initiate adjustments for any transactions credited or debited in error, as well as for chargebacks, reversals, or claims in accordance with this Agreement, the Card Network Rules and ACH Rules. If you are a Purchaser paying by credit card and your credit card account number changes or your credit card expiration date changes, we may acquire that information from our financial service providers and update your Account.
10. Accepted Forms of Payment
The Service supports most domestic credit, debit, prepaid or gift cards with a Visa, MasterCard, American Express or Discover logo. In addition, the Service supports most international cards with these logos. We may add or remove support for certain payment cards at any time without prior notice. We may elect only to process cards that receive an authorization from the applicable issuer. You agree to accept all of the cards issued by Card Networks that the Service supports in accordance with the terms of this Agreement.
The Service also supports payments via ACH from U.S.-based Purchasers with a U.S. bank account to U.S.-based Merchants, if supported by the Platform. We may conduct verification checks on Purchasers to ensure account ownership and sufficient balance, and we may refuse to process payments from Purchasers at our discretion.
The Service supports payments via Apple Pay to Merchants in the U.S., if supported by the Platform. The Apple Pay Web Merchant Terms and Conditions apply, and Merchant agrees to be bound by them.
The Service supports payments via Chase Pay to Merchants in the U.S., if supported by the Platform. The Chase Pay through Platform Provider Merchant Terms & Conditions apply, and Merchant agrees to be bound by them
11. Sharing Information
We may share some or all of the information about you and your transactions with the Bank, the Card Networks, and our other service providers (and their respective affiliates, agents, subcontractors, and employees), who may use this information to perform their obligations under their agreements with WePay, to operate and promote their respective networks, to perform analytics and create reports, to prevent fraud, and for any other lawful purpose. American Express and other Card Networks may use your name, address, and website address (URL) in any media from time to time. At any time, WePay, the Bank, the Card Networks or our other service providers may conclude that you will not be permitted to use the Service.
You agree that WePay is permitted to contact and share information about you and your Account with the Bank, the Card Networks, other financial institutions, and government agencies. This includes sharing information (a) about your transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the Service, (c) to create and update their customer records about you and to assist them in better serving you, (d) for use in connection with their agreement with us, to operate and promote their business, perform analytics and create reports, and for any other lawful business purpose, and (e) to conduct risk management.
12. Settlement Schedule
The Bank will settle funds to the Merchant's bank account or other payment instrument according to the schedule the Merchant selects (daily, weekly, or monthly). Merchants may request ad-hoc settlement at any time. If the Bank cannot transfer the funds to the Merchant's bank account or other payment instrument (due to inaccurate or obsolete bank account information entered by the Merchant, or for any other reason), the Bank may refund the funds to the Purchaser or escheat them pursuant to Section 22 below. Neither the Bank, WePay, Platform, nor the Purchaser will have any liability to Merchant for funds so refunded or escheated.
Settlements to a bank account or other payment instrument may be limited or delayed based on your perceived risk and history with WePay. Should WePay, the Bank or the Platform need to conduct an investigation or resolve any pending dispute related to your Account, the Bank may defer settlement or restrict access to your funds for the entire time it takes us to do so. The Bank may also defer settlement or restrict access to your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity. WePay or the Platform may respond to and comply with any writ of attachment, lien, levy, subpoena, warrant, or other legal order ("Legal Order". WePay or the Platform may instruct the Bank to deliver or hold any funds or any information as required under such Legal Order. Neither WePay, the Bank nor the Platform is responsible for any losses that you may incur as a result of our response or compliance with a Legal Order.
Furthermore, if WePay, Platform or the Bank suspects future chargebacks or disputes as a result of transactions to your Account, the Bank may defer settlement and/or restrict access to your funds until WePay, Platform and the Bank reasonably believe, in their respective sole discretion, that the risk of receiving a chargeback or dispute has passed. All settlements to Merchants are subject to review for risk and compliance purposes and can be delayed or postponed at WePay's, Platform's or the Bank's respective sole discretion. The bank account or other payment instrument linked to your Account will remain open while you use the Service and for at least 180 days afterwards (or longer as we may request). During this time, you will ensure that we are permitted to initiate debit and credit entries to or from your bank account or other payment instrument.
At any time and from time to time, the Bank may temporarily suspend or delay payments to you and/or require a "Reserve" (defined following) to protect WePay and the Bank against the risks from you using the Service, including chargebacks, refunds, and Payment Network Liabilities (as defined in Section 8 above). A "Reserve" is funds the Bank may withhold from you or require you to pay or obtain from any bank account or other funding source associated with any Account you hold with WePay and which the Bank maintains to protect WePay and the Bank against a risk that we or the Bank reasonably anticipate. We or the Platform will notify you of the amount of any required Reserve, which we and the Bank will determine in good faith. The Bank will hold and control any required Reserve. The Reserve will not bear interest, and the Bank can commingle the Reserve with other funds. You have no interest in any Reserve other than a contingent right to receive any unused funds. The Bank may periodically increase your required Reserve, or return Reserve funds no longer needed to manage your risk. When we and the Bank decide a Reserve is no longer needed, the Bank will return all unused Reserve funds to you. The right to require a Reserve will survive termination of this Agreement. This means that this section will remain in force even if you or we terminate the Agreement.
You are not required to have funds in your Account in order to use the Service. Any funds in your Account will be co-mingled and held by the Bank with other Merchants' funds in one or more pooled accounts at the Bank that are established in the Bank's name for the benefit of you and other users. The Bank has sole discretion over the establishment and maintenance of any pooled account. WePay has no ownership or control, and no right, title or interest in any account in which Merchant funds are held.
The Bank will hold any funds associated with your Account in an account separate from any account used for WePay's corporate funds. WePay will not and cannot use your funds for our corporate purposes (including the granting of any security or similar interest), will not voluntarily make funds available to our creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit our creditors to attach the funds. You will not receive interest or any other earnings on any funds that the Bank holds for you. As consideration for using the Service, you irrevocably assign to us or the Bank all rights and legal interests to any interest and/or other earnings or benefits that may accrue or are attributable to the Bank holding your funds in a pooled account.
If your Account is negative for an extended period of time (as defined by WePay in its sole discretion), the Bank may close your Account and we may pursue legal action or other collection efforts.
15. Cardholder Data Security
"Cardholder Data" is information associated with a payment card, such as account number, expiration date, and CVV2. WePay will comply with the Payment Card Industry Data Security Standards ("PCI DSS") to the extent WePay possesses or otherwise stores, processes, or transmits Cardholder Data on your behalf, or to the extent WePay could impact the security of your Cardholder Data environment. WePay is a validated PCI Level 1 Service Provider and so is qualified to handle Cardholder Data in connection with the Service.
If you handle, transmit, or store any Cardholder Data in connection with your use of the WePay Service or the WePay API, you agree to comply at all times with PCI DSS. Further, you agree to certify such compliance and provide documentation in accordance with Card Network Rules, or when asked by WePay to do so. You also agree that you will use only PCI DSS compliant service providers in connection with the storage, processing, or transmission of Cardholder Data.
You are fully responsible for the security of data (including but not limited to Cardholder Data) on your website or otherwise in your possession or control. You agree to comply with all applicable laws, Card Network Rules and ACH Rules in connection with your collection, security and dissemination of any personal, financial, or transaction information.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld, in connection with your use of the Service. You are solely responsible for collecting, withholding, reporting and remitting any taxes to the appropriate tax authority. WePay is not obligated to, and will not, determine whether taxes apply, or calculate, collect, report or remit any taxes to any tax authority arising from your use of the Service.
WePay or the Bank may have tax reporting responsibilities in connection with the Service. For example, WePay or the Bank will report to the Internal Revenue Service, state and/or local governments on Form 1099 as required by law, your name, address, Tax Identification Number (Employment Identification Number or Social Security Number), the total dollar amount of the payments you receive in a calendar year, and the total dollar amount of the payments you receive for each month in a calendar year.
17. Customer Service Provided by Merchants
You are solely responsible for all customer service issues relating to your goods or services, including pricing, order fulfillment, order cancellation by you or the Purchaser, returns, refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from WePay. Merchants and Platforms will cooperate with WePay to assure that Purchasers have access to clear customer service information, including an active customer service email address and telephone number.
18. Refunds and Returns Provided by Merchants
You agree to process returns of, and provide refunds and adjustments for goods or services through your Account in accordance with this Agreement, the Card Network Rules and the ACH Rules. The Card Network Rules require that you will (a) maintain a fair return, cancellation or adjustment policy, (b) disclose your return or cancellation policy to Purchasers at the time of purchase, (c) not give cash refunds to a Purchaser in connection with a payment card sale, unless required by law, and (d) not accept cash or any other item of value for preparing a payment card sale refund. Your refund policies must be the same for all payment methods. If your Purchaser is dissatisfied with your refund policy, the Purchaser may chargeback the payment.
19. Merchant's Liability for Chargebacks
The amount of a payment may be charged back to you if (a) it is disputed by a Purchaser, (b) it is reversed for any reason, (c) it was not authorized or we have any reason to believe that the transaction was not authorized, or (d) it is unlawful, suspicious, or in violation of the terms of this Agreement. You are responsible for all chargebacks, whether or not the chargeback complies with the Card Network Rules. You are also responsible if a Purchaser reverses a payment by bank transfer, whether or not the reversal complies with the ACH Rules.
20. How WePay and the Platform Handle Chargebacks
You owe the Bank and will immediately pay the amount of any chargeback or ACH reversal and any associated fees, fines, or penalties assessed by the Bank, the Card Networks or the ACH. If you do not have sufficient funds in your Account, we and the Bank will have the remedies set forth below in Section 21, Set-off and Collection Rights; Grant of Security Interest. If you have pending chargebacks or reversals, the Bank may delay settlement to you.
Further, if we reasonably believe that a chargeback or reversal is likely with respect to any transaction, the Bank may withhold the amount of the potential chargeback or reversal from payments otherwise due to you under this Agreement until such time that: (a) a chargeback or reversal is assessed due to a Purchaser's complaint, in which case the Bank will retain and refund the funds; (b) the period of time under applicable law or regulation by which the Purchaser may dispute that the transaction has expired; or (c) we determine that a chargeback or reversal on the transaction will not occur.
If we determine that you are incurring an excessive amount of chargebacks or reversals, WePay or the Bank may establish controls or conditions governing your Account, including without limitation, by (a) assessing additional fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated chargebacks, reversals and related fees, (c) delaying settlement, and (d) terminating or suspending the Service or closing your Account.
You agree to assist us and the Platform when requested, at your expense, to investigate any of your transactions processed through the Service. To that end, you permit us and the Platform to share information about a chargeback or reversal with the Purchaser, the Purchaser's financial institution, and your financial institution in order to investigate and/or mediate a chargeback or reversal. We or the Platform will request necessary information from you to contest the chargeback or reversal. If the chargeback or reversal is contested successfully, the Bank will release the reserved funds to you. If a chargeback or reversal dispute is not resolved in your favor by the Card Networks, ACH or issuing bank or you choose not to contest the chargeback or reversal, the Bank may recover the chargeback or reversal amount and any associated fees as described in this Agreement. You acknowledge that your failure to assist us and the Platform in a timely manner when investigating a transaction, including providing necessary documentation within seven (7) days of a request, may result in an irreversible chargeback or reversal. We and the Platform reserve the right, upon notice to you, to charge a fee for mediating and/or investigating chargeback and reversal disputes.
21. Set-off and Collection Rights; Grant of Security Interest
The Bank can, without notifying you or making a demand for payment retain, apply or set off any amount owed you by WePay or the Bank or the value of any of your property in the possession of WePay or the Bank, against any amount you owe WePay, the Bank, or our affiliates for any obligation irrespective of whether WePay or the Bank has made any related demand (even if it is unmatured). All fees are deducted first from the transferred or collected funds and thereafter from your Account. If you do not have sufficient funds, the Bank may collect from any funding source associated with your Account, or from any other Account under your control, or from any funding source associated with such other Account, including but not limited to any funds (a) deposited by you, (b) due to you under this Agreement, or (c) available in your bank account, or other payment instrument registered with WePay. Your failure to pay in full amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys' fees and expenses, collection agency fees, and interest at the lesser of one-and-one-half percent (1-1/2%) per month or the highest rate permitted by law. In its discretion, WePay or the Platform may make appropriate reports to credit reporting agencies and law enforcement authorities and cooperate with them in any resulting investigation or prosecution. You hereby expressly agree that all communication in relation to deliquent accounts will be made by email, by text or by phone, as provided by you to WePay or the Platform. Such communication may be made by WePay or by anyone on its behalf, including but not limited to the Platform or a third party collection agent.
You assign and grant the Bank a security interest in and lien on any and all funds held in your Account and any other funds and credits with the Bank, including without limitation any Reserve under Section 13 above, and also authorize the Bank to make any withdrawals or debits from the Reserve, without prior notice to you, to collect amounts that you owe us or the Bank under this Agreement, including without limitation for any reversals of settlements or transfers made to your Account. You will execute any additional documentation required for the Bank to perfect its security interest. You irrevocably assign to the Bank all rights and legal interests to any interest or other earnings that accrue or are attributable to funds subject to this security interest.
22. Dormant Accounts
If there is no activity in your Account (such as a payment or settlement) for the period of time set forth in the applicable unclaimed property laws, and you have funds, we or the Platform may notify you by sending an email to your registered email address or a text to your registered telephone number. We or the Platform may also notify you by U.S. mail. If you do not initiate settlement of the funds or respond to the notice within the time period specified in the notice, we may close your Account and escheat your funds (less a processing fee) in accordance with applicable law.
23. Statements and Errors
WePay or the Platform will provide a report of activities, including transactions and fees, relating to the Service ("Statement"), which is available for you to examine when it is available online. Neither WePay nor the Platform is responsible for you relying on balance, transaction or related information that is updated or corrected, or the accuracy or timeliness of information supplied by any third party. You agree that the Statements are sufficient for you to inspect and review activity and to identify errors and unauthorized or altered transactions. You will promptly examine your entire Statement once it is available. You will promptly, and no later than 60 calendar days after the Statement date, reconcile your Statement with your bank statements and other receipts from the same period, and notify WePay or the Platform of any: (a) unauthorized transactions, including any claims of such activity or requested adjustments, (b) alterations, errors, discrepancies and irregularities, or (c) discrepancies you identify when reconciling with your bank statements and other receipts. If you do not act in the timeframes above, you agree that you cannot: (i) assert you exercised reasonable care and promptness in reviewing your Statement and identifying errors, (ii) be reimbursed for a "Claim" (as defined in Section 35 below) refused as a result, and (iii) make a Claim or otherwise act against us for a subsequent loss that was preventable or caused by the same wrongdoer's repeated act. You should make archival copies of your Statement data regularly. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data, and (b) reconciling all transaction information that is associated with your Account.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
If you discover a security-related issue, including any unauthorized use of your access credentials or Account, you will inform us of the issue immediately by contacting the WePay Security Team and the Platform. You also agree not to disclose the issue until WePay and the Platform have addressed it unless otherwise required by law. In the event of any dispute between two or more parties as to Account ownership, WePay or the Platform will be the sole arbiter of such dispute in our respective sole discretion. Our decision (which may include termination or suspension of any Account subject to dispute) will be final and binding on all parties.
26. Your Right to Terminate
You may terminate this Agreement by closing your Account at any time. When you close your Account, any pending transactions will be cancelled. Any funds that the Bank holds for you at the time of closing, less any applicable fees and other liabilities, will be settled to you in accordance with Section 12, Settlement Schedule, and Section 13 Reserve, above.
27. Our Right to Terminate
We or the Platform may terminate this Agreement and close your Account for any reason or no reason at any time upon notice to you. We or the Platform may also suspend the Service and instruct the Bank to suspend access to your Account (including the funds in your Account) if you (a) have violated the terms of the WePay's policies, Platform's policies, or this Agreement, (b) pose an unacceptable credit or fraud risk, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.
28. Effect of Termination
If your Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Service, (c) that the license provided under this Agreement shall end, (d) that we and the Platform have the right to delete all of your information and Account data in accordance with our record-keeping policies and applicable law, and (e) that neither WePay nor the Platform shall be liable to you or any third party for any of the foregoing actions. Neither WePay nor the Platform will be liable to you for compensation, reimbursement, or damages in connection with any termination or suspension of the Service. Any termination of this Agreement does not relieve you of any obligations to pay any fees or costs accrued prior to the termination and any other amounts owed by you to us or the Platform as provided in this Agreement. After termination of this Agreement, you continue to be liable for all chargebacks, refunds, fees, Payment Network Liabilities, and adjustment resulting from or relating to transactions processed pursuant to this Agreement. If you submit transactions to us after the date of termination, we may, but are not required to, process such transactions. All transactions we process will be in accordance with and subject to all the terms of this Agreement. This Section 28 will survive termination of this Agreement.
29. Your License
WePay grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Service solely to accept and receive payments and to manage the funds you so receive.
Unless you separately execute a written agreement with WePay that expressly grants you such permission, you may not, nor may you permit any third party to, do any of the following: (i) access or monitor any material or information on any WePay system using any manual process or robot, spider, scraper, or other automated means; (ii) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material or information from WePay; (iii) permit any third party to use and benefit from the Service via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) violate the restrictions in any robot exclusion headers on the Service, work around, bypass, or circumvent any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service, or decompile, disassemble or otherwise reverse engineer the Service, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Service except as expressly allowed under this Agreement. You may not use the Service on a mobile device that is "jail broken" or otherwise modified contrary to the manufacturer's software or hardware guidelines. Your use of the Service may be subject to the terms of your agreements with your mobile device manufacturer and your carrier.
30. WePay's Intellectual Property Rights
The Service is licensed and not sold. WePay reserves all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. WePay owns the title, copyright and other worldwide intellectual property rights in the Service and all copies of the Service. This Agreement does not grant you any rights to WePay's trademarks or service marks, nor may you remove, obscure, or alter any of WePay's trademarks or service marks included in the Service.
You may choose to, or we may invite you to, submit comments or ideas about the Service, including without limitation about how to improve the Service or our products ("Feedback"). By submitting Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place WePay under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, WePay does not waive any rights to use similar or related ideas previously known to WePay, or developed by its employees, or obtained from sources other than you.
31. Your Representations and Warranties
You represent and warrant to us that: (a) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement; (b) the name identified by you when you registered is your name or business name under which you sell goods and services; (c) any sales transaction submitted by you will represent a bona fide sale by you; (d) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a Purchaser; (e) you will fulfill all of your obligations to each Purchaser for which you submit a transaction and will resolve any consumer dispute or complaint directly with the Purchaser; (f) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (g) except in the ordinary course of business, no transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; (h) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service; (i) your use of the Service will be in compliance with this Agreement; and (j) you are not a “Bearer Share Company” (defined following) and you do not have any outstanding and will not issue any new “Bearer Shares” (defined following). “Bearer Share Company” means a type of company which, unlike registered share companies, issues its securities as Bearer Shares. “Bearer Shares” means securities that are not registered in the name of the owner on the books of the issuing corporation and thus payable to any possessor of the shares.
32. Disclaimer of Warranties by WePay and the Bank
You agree this Agreement is for commercial services and the Uniform Commercial Code does not apply to the Service.
WEPAY AND THE BANK PROVIDE THE SERVICE "AS IS" AND "AS AVAILABLE," AND DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING WARRANTIES OF (A) MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, DEALING OR TRADE USE, AND (B) NON-INFRINGEMENT. WHERE LEGAL REQUIREMENTS IMPOSE AN IMPLIED WARRANTY BY US OR THE BANK, SUCH WARRANTY ENDS 30 DAYS FROM THE DATE THE SERVICE IS FIRST AVAILABLE TO YOU.
WEPAY AND THE BANK DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A PLATFORM OR OTHER THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. NEITHER WEPAY NOR THE BANK WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
33. Our and the Bank's Liability
Under no circumstances will our and the Bank’s financial liabilities arising out of or related to this Agreement exceed the total fees paid to us under this Agreement (net of Card Network and other third party fees such as interchange, assessments, and Payment Network Liabilities) for the six months prior to the time the liability arose.
WePay and the Bank are only liable for reasonably foreseeable damages directly caused by an act that is within our or the Bank’s respective direct control and are not responsible for your actions, inactions, omissions, delays or failures, or those of third parties.
WePay and the Bank are not liable for any claim of negligence if we and the Bank follow our respective procedures, which you agree constitute our exercise of good faith and ordinary care.
WePay and the Bank are not liable for any fraud or forgery, other than by each of us.
Neither WePay nor the Bank guarantees (a) the security, sequence, timeliness, accuracy or completeness of any service, data or technology, or (b) access to any service or technology.
34. Waiving Special Damages
Neither you nor we nor the Bank shall be liable for any "Special Damages," defined following, regardless of the form of action and even if advised of a possibility of Special Damages. You, we and the Bank hereby waive the right to claim or recover Special Damages. "Special Damages" means indirect, special, incidental, speculative, remote, exemplary, punitive or consequential damages, lost profits, loss of business or goodwill, tax or late payment penalties and damages, including any related to systems or equipment issues, access to any online service, service providers, and problems or delays using the Service. For the avoidance of doubt, Special Damages do not include Payment Network Liabilities (as defined in Section 8), and such damages shall be deemed direct damage.
35. Timely Filing of Claims
As used in this Agreement, "Claim" means an actual or potential action, loss, claim, dispute, controversy, damage, demand, liability, garnishment, lien, levy or other order, cost or expense, including Special Damages (as defined in Section 34 above), attorney fees and dispute resolution costs. You must file a Claim in connection with the Service with a tribunal or court of competent jurisdiction within two years of the event that gave rise to the Claim. Failure to do so will mean you have waived that claim against us.
36. Indemnification and Holding Harmless
You agree to unconditionally release, indemnify, defend and hold harmless us, the Bank and our respective Related Persons (defined following) for any Claim arising from or related to: (a) us or the Bank providing the Service, or accepting or processing a transaction or instruction from you, your authorized person or on your behalf related to the Service or otherwise consistent with this Agreement, (b) us or the Bank paying a tax, interest or penalty for which you are liable or for which we or the Bank otherwise have no responsibility, (c) us or the Bank taking any action permitted by this Agreement, including defending against a Claim, (d) you breaching this Agreement or a representation or warranty you give, (e) you claiming against a Card Network or payment network relating to the Service or a transaction, (f) you, us or the Bank incurring fees, fines or penalties arising from you breaching legal requirements, Card Network Rules or ACH Rules, (g) you or anyone else using the Service with your access credentials, and (h) a third party claim. "Related Persons" are past, present and future direct and indirect parents and affiliates and any authorized person, director, officer, employee, manager, partner, shareholder, beneficial owners, insurer, service provider, agent or attorney, including all successors, subrogees and assigns.
This indemnification does not apply to any Claim to the extent it is directly caused by our or the Bank’s negligence, recklessness or willful misconduct.
Indemnity obligations in this Agreement remain in force after your Account closes or this Agreement or the Service terminates.
If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact Customer Support with any dispute. If we cannot resolve your concerns, we agree to an informal dispute resolution process requiring individual arbitration.
38. Binding Individual Arbitration
You agree that any Claim related to this Agreement or the Service, including claims regarding the applicability of this arbitration clause, shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association ("AAA"). We or the Bank will select another arbitration forum if the AAA ceases operations.
In the absence of this arbitration clause, you may otherwise have had a right or opportunity to litigate any Claim through a court before a judge or jury and to participate or be represented in litigation filed in court by others (including class actions). You are waiving those rights and any Claim you have must now be resolved through arbitration.
All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, negligence, statutory or regulatory provisions, or any other source of law.
Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis only, and the arbitrator may award relief only on an individual (non-class, non-representative) basis.
The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between you, on the one hand, and us or the Bank, on the other hand. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The prohibition against class action contained in this Section 38 shall be non-severable from the remainder of this Section 38.
If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys' fees incurred by the prevailing party in connection with such arbitration.
Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction.
Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office, www.adr.org, or 335 Madison Avenue, New York NY 10017, telephone 1-800-778-7879. Any arbitration hearing at which you appear will take place at a location within New York County, New York, New York.
This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. sections 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure, or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests for contractual debts now or hereafter owed by either party to the other.
In the event that you, the Bank or WePay are not able to resolve a dispute with American Express, or a claim against WePay, the Bank or any other entity that American Express has a right to join, Exhibit C will apply.
39. Governing Law and Venue
The internal laws of the State of New York (without reference to its conflict of laws rules) apply to this Agreement, subject to any modifying "Legal Requirements," defined following. "Legal Requirements" means each applicable law, ordinance, decree, requirement, order, judgment, rule, regulation, directive, circular, interpretive letter, guidance or other official release (or a related interpretation) of a government authority or a regulatory (including self-regulatory) organization to which a party and/or its affiliates is subject, including (a) all applicable anti-money laundering laws, rules and regulations, (b) "Know-Your-Customer" and sanctions laws, rules and regulations, (c) Federal Reserve Board regulations, and (d) tax regulations. All rights and remedies relating to this Agreement, Legal Requirements, the ACH Rules and the Card Network Rules are cumulative and do not exclude any other rights or remedies. The maximum amount of pre- and post-judgment interest in connection with any Claim will be the lower of the prime rate and the rate set by the State of New York.
Disputes relating to the Service will be resolved by an arbitration tribunal or by a court of competent jurisdiction in the State of New York and you agree to submit to this jurisdiction.
This section does not prevent us from starting proceedings in a court or tribunal of any state with jurisdiction, including concurrently in any number of states.
40. Waiving Rights to Jury Trial
You and we waive the right to a trial by jury for any matter or Claim relating to this Agreement, the Service or a transaction.
41. Assigning this Agreement; Change of Control
We must agree in writing before you transfer or assign this Agreement (including by operation of law or merger). Without our consent, such transfer or assignment is void and may result in us immediately terminating the Agreement. Where we do agree, an assignee or transferee is subject to this Agreement and the obligations and liabilities you owed to us before the date it is transferred or assigned.
We must agree in writing before an assignee can continue, assume or assign this Agreement for the benefit of a creditor, custodian, receive, trustee in bankruptcy, debtor in possession, sheriff or court officer, or a person taking charge of your assets or business.
We or the Bank can at any time assign or transfer this Agreement, in whole or in part, or any or all of our respective rights and obligations under this Agreement.
You will give us notice at least 60 calendar days before you sell all or substantially all of your assets, or a person becomes a beneficial owner with more than 50 percent of the combined voting power of your ownership interests, or acquires voting control. You will give us information we request about a major asset sale or ownership change.
42. Third Party Services and Links to Other Websites
43. Amendment of Agreement
We have the right to change the terms of this Agreement at any time with notice that we in our sole discretion deem to be reasonable in the circumstances, including posting the revised Agreement on our Website. Any use of the Service after such notice or posting shall constitute your acceptance of this Agreement as modified.
44. Force Majeure
Neither we nor the Bank are liable to you for not carrying out, or delaying performance of, any actions caused by an act of God, a government authority, any Card Network, the ACH, a Legal Requirement, a catastrophe, war or terrorism, civil or labor disturbance, fire, flood, other natural disaster, or any other cause beyond our reasonable control.
45. Other Provisions
Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you and WePay, and they describe the entire liability of WePay and the Bank and your exclusive remedy with respect to your access and use of the Service. In the event of a conflict between this Agreement and any other WePay agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. Headings and summaries are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that WePay may have under trade secret, copyright, patent or other laws. WePay's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement shall survive and remain in effect in accordance with its terms upon the termination of this Agreement.
Exhibit A: Commercial Entity Agreement
This Commercial Entity Agreement (this "Agreement") applies to all merchants that (a) use WePay, Inc.'s ("WePay") service (the "Service") for the acceptance of credit or debit card payments; and (b) are considered "Commercial Entities" as defined by Visa, Inc. and MasterCard International, Inc. (collectively, the "Card Networks"). Contingent and effective upon being considered a Commercial Entity, the merchant ("Merchant") is entering into this Agreement with JPMorgan Chase Bank, N.A. (the "Member"), and Paymentech, LLC ("Paymentech"), to govern the authorization, conveyance and settlement of Transactions utilizing the Service. By agreeing to the WePay Terms of Service to which this Agreement is an exhibit (by "click through" agreement or otherwise), Merchant is fulfilling the Card Network Rules requiring a direct contractual relationship between the Member and Merchant, and Merchant is agreeing to comply with Card Network Rules as they pertain to payments Merchant receives through WePay. Certain capitalized terms are defined in Section 12 below. Capitalized terms not otherwise defined herein have the respective meanings given them in the WePay Terms of Service. Paymentech shall be a third-party beneficiary of, and may enforce any provisions of, or cease providing credit card processing services under, the WePay Terms of Service between Merchant and WePay.
1. MERCHANT'S ACCEPTANCE OF PAYMENT CARDS
1.1 Payment Card Acceptance Policies and Prohibitions.
Merchant shall be provided guidelines which prescribe:
9. accept all categories of Visa and MasterCard Payment Cards,
10. honor all foreign bank-issued Visa or MasterCard Payment Cards; and
11. provide the Purchaser with a Transaction Receipt for each Transaction. All Transaction Receipts must conform to applicable law and the Card Network Rules.
2. Except to the extent permitted by law or the Card Network Rules, Merchant must not:
9. engage in any practice that unfavorably discriminates against or provides unequal treatment of any Card Network relative to any other Card Network;
10. set a dollar amount above or below which Merchant refuses to honor otherwise valid Payment Cards;
11. issue a refund in cash or a cash equivalent (e.g. checks) for any Transaction originally conducted using a Payment Card;
12. request or use a Payment Card account number for any purpose other than to process a payment for goods or services sold; or
13. add any tax or surcharge to a Transaction; if any tax or surcharge amount is permitted under the Card Network Rules and applicable law, such amount shall be included in the Transaction amount and shall not be collected separately.
1.2 Card Network Rules. Merchant agrees to comply with:
9. all applicable Card Network Rules in effect from time to time; and
10. such other procedures as Paymentech may from time to time prescribe for the creation or transmission of Transactions.
4. 1.3 Requirements for Certain Transactions. Merchant represents, warrants, and covenants that, to the best of its knowledge, each Transaction:
9. represents payment for or refund of a bona fide sale or lease of the goods, services, or both, which Merchant has the legal right to sell and which is provided by Merchant in the ordinary course of its business;
10. is not submitted on behalf of a third party;
11. represents a current obligation of the Purchaser solely for the amount of the Transaction;
12. does not represent the collection of a dishonored check or the collection or refinancing of an existing debt;
13. represents goods that have been provided or shipped, or services that have actually been rendered, to the Purchaser;
14. is free from any material alteration not authorized by the Purchaser;
15. or the amount thereof, is not subject to any dispute, setoff, or counterclaim;
16. if such Transaction represents a credit to a Purchaser’s Payment Card, is a refund for a Transaction previously submitted; and
17. complies with the terms of this Agreement, applicable laws and all applicable Card Network Rules.
5. AUTHORIZATIONS. Merchant is required to obtain an authorization code through Paymentech for each Transaction. Paymentech reserves the right to refuse to process any Transaction presented by Merchant unless it includes a proper authorization.
6. REFUND AND ADJUSTMENT POLICIES AND PROCEDURES; PRIVACY POLICIES.
3.1 Merchant must:
9. maintain a refund policy (e.g. "NO REFUNDS", "REFUNDS WITH ORIGINAL RECEIPT WITHIN 30 DAYS OF ORIGINAL SALE") in accordance with the Card Network Rules; and
10. disclose all refund policies to Paymentech and to Merchant’s Purchasers.
7. 3.2 Policies for Ecommerce Merchants. Merchant must (subject to subsection (c) below):
9. display the following on each electronic commerce website:
1. all refund policies;
3. a description of its security capabilities and policy for transmission of Payment Card Information;
4. the address of Merchant’s fixed place of business (regardless of website or server locations); and
10. offer its Purchasers a data protection method such as 3-D Secure or Secure Sockets Layer (SSL).
11. Subsections (a) and (b) of this Section shall apply in the event that Merchant is an Electronic Commerce Merchant (as defined in the Card Network Rules) and such Merchant engages in Electronic Commerce Transactions (as defined under the Card Network Rules).
4.1 Chargeback Reasons. Merchant is liable for all chargebacks.
4.2 Responding to Chargebacks. If Merchant has reason to dispute or respond to a chargeback, then Merchant must do so by the date provided on the applicable chargeback notice. If Merchant misses the chargeback due date, Paymentech has no obligation to investigate or attempt to obtain a reversal or other adjustment to any chargeback on Merchant’s behalf. Upon receiving a chargeback, Merchant may resubmit the applicable Transaction for a second presentment if permitted by the Card Network Rules.
4.3 Excessive Chargebacks. If Merchant is receiving an excessive amount of chargebacks, in addition to Paymentech’s other remedies under this Agreement, Paymentech may terminate this Agreement and cease providing processing services.
9. DISPLAY OF CARD NETWORK MARKS. Merchant is authorized to use the Visa and MasterCard names, logos, or marks only at the point of sale, on Merchant's promotional materials, and on Merchant’s website to indicate that Visa and MasterCard cards are accepted payment methods for the purchase of goods or services from Merchant through its use of the Service.
10. TERM AND TERMINATION.
6.1 Term. This Agreement is effective upon the date Merchant becomes a Commercial Entity and continues so long as Merchant uses the Service or until sooner terminated by Merchant or Paymentech. This Agreement will terminate automatically upon any termination or expiration of Merchant's Terms of Service with WePay. This Agreement may be terminated by Paymentech at any time (a) based on a breach of any of Merchant's obligations under this Agreement; (b) based on a breach of any of Merchant's obligations under Merchant's Terms of Service with WePay; or (c) based on the termination of the payment processing relationship between WePay and Paymentech.
6.2 Post Termination. If this Agreement is terminated by Paymentech, Merchant acknowledges that Paymentech may be required to report Merchant’s business name, and information about its principals, to the Card Networks, and Merchant expressly agrees and consents to such reporting. The termination of this Agreement will not affect either party’s rights or obligations with respect to Transactions submitted prior to termination. Therefore, the provisions governing processing and settlement of Transactions, all related adjustments, fees, and other amounts due from Merchant, and the resolution of any related chargebacks, disputes, or other issues involving Transactions, will continue to apply for all Transactions made prior to termination.
11. INDEMNIFICATION. Paymentech agrees to indemnify and hold Merchant harmless from and against all losses, liabilities, damages and expenses arising from Paymentech's or Paymentech's employee's gross negligence or willful misconduct in connection with this Agreement. Merchant agrees to indemnify Paymentech, Member, the Card Networks, and their respective affiliates, officers, directors, employees, agents, and sponsoring banks from any losses, liabilities, and damages of any and every kind (including, without limitation, Paymentech’s costs, expenses, and reasonable attorneys’ fees) arising out of:
9. any breach of any warranty, covenant or agreement or any misrepresentation by Merchant under this Agreement;
10. Merchant's or its employees' negligence or willful misconduct;
11. any assessment, fine, or penalty imposed on Paymentech or the Member, and any related loss, cost, or expense incurred by Paymentech or the Member; and
12. any claim, complaint, or chargeback:
1. made or claimed by a Purchaser with respect to any Transaction submitted by Merchant, Merchant’s provision of goods and services to Purchasers, or Merchant’s use of the Service;
2. caused by Merchant’s noncompliance with this Agreement, applicable law, or the Card Network Rules (including, without limitation, any breach of a representation or warranty made by Merchant or Merchant’s failure to comply with PCI-DSS);
3. resulting from any voluntary or involuntary bankruptcy or insolvency proceeding by or against Merchant; or
4. related to Paymentech’s reporting of Merchant, or any person owning or controlling Merchant’s business, to the Card Networks for inclusion in one or more databases of terminated or high risk merchants maintained by the Card Networks.
12. PAYMENT CARD INDUSTRY COMPLIANCE. Merchant must not:
9. disclose Payment Card Information, except:
1. to select employees, agents, and contractors on a "need to know" basis, solely for the purpose of assisting Merchant in completing a Transaction or otherwise complying with this Agreement; or
2. as specifically required by PCI-DSS, Card Network Rules, or applicable law;
10. use Payment Card Information, except:
1. to complete a Transaction; or
2. as specifically permitted by this Agreement, PCI-DSS, Card Network Rules, or applicable law; and
11. sell, transfer, or disclose to third parties any materials that contain Transaction or Payment Card Information in the event of Merchant’s failure, including bankruptcy, insolvency, or other suspension of business operations.
13. Merchant must:
9. comply with the PCI-DSS, Card Network Rules, and all applicable laws relating to the security, storage, and disclosure of Transactions and Payment Card Information;
10. notify Paymentech immediately if Merchant determines or suspects that Transactions or Payment Card Information have been compromised and assist Paymentech in providing notification to all interested parties as may be required by law or Card Network Rules, or as Paymentech otherwise reasonably deems necessary;
11. cooperate with any forensic examination or other audit required by the Card Networks,
12. pay for all costs and expenses related to a forensic examination or other audit required by the Card Networks, Paymentech, or Member (including all of Paymentech’s reasonable attorneys' fees and other costs related to the forensic exam or audit); and
13. take all actions necessary to achieve and maintain compliance in accordance with the results of, and in the time frame set forth in, a forensic examination or audit report from Paymentech, the Card Networks, or Member.
14. Paymentech may:
9. share Merchant’s financial information, information related to Merchant's Transactions, and other information provided by Merchant with Paymentech's affiliates;
10. use or disclose information related to Merchant's Transactions:
1. as necessary to process Merchant's Transactions or otherwise provide the Service and maintain Merchant's account pursuant to this Agreement;
2. to detect prevent, reduce, or otherwise address fraud, security, or technical issues;
3. to enhance or improve Paymentech’s products and services generally; or
4. as required or permitted by the Card Networks or applicable law; and
11. prepare, use, or share with third parties, aggregated or non-personally identifiable information derived from Transactions of all of Paymentech's customers or specific segments of Paymentech's customers.
15. DISCLAIMER; LIMITATION OF DAMAGES. Paymentech will, at its own expense, correct any Transaction if errors have been caused by Paymentech or by malfunctions of Paymentech’s processing systems. PLEASE READ THIS PROVISION CAREFULLY UNDER NO CIRCUMSTANCES WILL PAYMENTECH’S FINANCIAL RESPONSIBILITY FOR ITS FAILURE OF PERFORMANCE UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID TO PAYMENTECH BY MERCHANT UNDER THIS AGREEMENT (NET OF CARD NETWORK FEES, THIRD PARTY FEES, INTERCHANGE, ASSESSMENTS, PENALTIES, AND FINES) FOR THE SIX (6) MONTHS PRIOR TO THE TIME THE LIABILITY AROSE. ANY FINES, FEES, PENALTIES OR ASSESSMENTS IMPOSED BY THE CARD NETWORKS RELATED TO MERCHANT’S ACCEPTANCE OF PAYMENT CARDS SHALL NOT BE DEEMED TO BE CONSEQUENTIAL DAMAGES. ALL PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR COMMERCIAL SERVICES. THE UNIFORM COMMERCIAL CODE DOES NOT APPLY AND PAYMENTECH AND MEMBER HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, MADE TO MERCHANT OR ANY OTHER PERSON, REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE) OF ANY SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY GOODS PROVIDED INCIDENTAL TO SUCH SERVICES.
16. MISCELLANEOUS 10.1 Section Headings. The section headings of this Agreement are for convenience only and do not define, limit, or describe the scope or intent of this Agreement. 10.2 Assignment. Merchant may not transfer or assign this Agreement without the prior written consent of Paymentech. Any transfer or assignment of this Agreement by Merchant, by operation of law, merger, or otherwise, without Paymentech's prior written consent is null and void, and Merchant is fully responsible with respect to all Transactions submitted by the purported assignee/transferee, and for any and all related liabilities, chargebacks, expenses, costs, fines, fees or penalties arising from such Transactions. Subject to Card Network Rules, Paymentech may assign or transfer this Agreement and its rights and obligations hereunder and may delegate its duties hereunder, in whole or in part, to any third party, without notice to or consent of Merchant. 10.3 Parties; Independent Contractor. No agency, partnership, joint venture or employment relationship is created between Merchant and Member by this Agreement. In the performance of their respective obligations hereunder, the parties are, and will be, independent contractors. Neither party will bind, or attempt to bind, the other party to any contract or the performance of any obligation, and neither party will represent to any third party that it has any right to enter into any binding obligation on the other party's behalf. 10.4 Severability. Should any provision of this Agreement be determined to be invalid or unenforceable under any law, rule, or regulation, including any Card Network Rule, such determination will not affect the validity or enforceability of any other provision of this Agreement. 10.5 Waivers. No term or condition of this Agreement may be waived except pursuant to a written waiver executed by the party against whom such waiver is sought to be enforced. 10.6 Entire Agreement. This Agreement represents the entire understanding between Merchant and Paymentech with respect to the matters contained herein and supersedes any prior agreements between the parties except for the WePay Terms of Service, which will continue to apply to the extent consistent with this Agreement. Merchant agrees that in entering into this Agreement it has not relied on any statement of Paymentech or its representatives. 10.7 Notices. Except as otherwise provided in this Agreement, all notices must be given in writing and either hand delivered, mailed first class, postage prepaid, sent via electronic mail transmission, or sent via overnight courier (and will be deemed to be given when so delivered or mailed) to Merchant's legal address, to Paymentech at: Attn: Legal Department, 8181 Communications Pkwy, Plano, Texas 75024, or to such other address as either party may from time to time specify to the other party in writing. 10.8 Governing Law; Waiver of Right to Contest Jurisdiction; Waiver of Jury Trial; Arbitration. The internal laws of the State of New York (without reference to its conflict of laws rules) apply to this Agreement. Disputes relating to the Service will be resolved by an arbitration tribunal or by a court of competent jurisdiction in the State of New York and Merchant agrees and submits to this jurisdiction. Merchant agrees that any Claim related to this Agreement or the Service, including claims regarding the applicability of this arbitration clause, shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association ("AAA"). Paymentech will select another arbitration forum if the AAA ceases operations. In the absence of this arbitration clause, Merchant may otherwise have had a right or opportunity to litigate any Claim through a court before a judge or jury and to participate or be represented in litigation filed in court by others (including class actions). Merchant is waiving those rights and any Claim Merchant has must now be resolved through arbitration. All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, negligence, statutory or regulatory provisions, or any other source of law. Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis only, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between Merchant and Paymentech. The arbitration or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The prohibition against class action contained in this Section 10.8 shall be non-severable from the remainder of this Section 10.8. If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office, www.adr.org, or 335 Madison Avenue, New York NY 10017, telephone 1-800-778-7879. Any arbitration hearing at which Merchant appears will take place at a location within New York County, New York, New York. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. sections 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party's use of (or advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure, or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests for contractual debts now or hereafter owed by either party to the other. 10.9 Force Majeure. Neither party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of Paymentech’s vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this Section 10.9 will affect or excuse Merchant’s liabilities and obligations for chargebacks, refunds, or unfulfilled goods and services. 10.10 Amendment. This Agreement may only be amended by Merchant upon mutual written agreement. Paymentech may amend this Agreement at any time via WePay posting a revised version on the WePay Website. The revised version will be effective at the time WePay posts it. You will be considered as having expressly consented to all changes to this Agreement if you continue to use the Service.
17. SURVIVAL. The rights and obligations under Sections 4, 6.2, 7, 8, 9, 10.9, 11, and 12 will survive the termination of this Agreement, along with any other provision that says it does, or that reasonably should survive.
18.TERMS USED IN THIS AGREEMENT.
|Card Network Rules||All bylaws, rules, programs, and regulations, as they exist from time to time, of the Card Networks.|
|Payment Card||An account, or evidence of an account, authorized and established between a Purchaser and a Card Network, or representatives or members of a Card Network, that Merchant accepts from Purchasers as payment for a good or service. Payment Cards include credit and debit cards, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates, and credit accounts.|
|Payment Card Information||Information related to a Purchaser or a Purchaser's Payment Card that is obtained by Merchant from the Purchaser's Payment Card, or from the Purchaser in connection with his or her use of a Payment Card. Such information may include, but is not limited to:
For the avoidance of doubt, the data elements that constitute Payment Card Information are treated according to their corresponding meanings as "cardholder data" and "sensitive authentication data" as such terms are used in the then current PCI DSS.
|Transaction||A transaction conducted between a Purchaser and Merchant utilizing a Payment Card in which consideration is exchanged between the Purchaser and Merchant. Transaction also includes the written or electronic record of a Transaction, including, without limitation, an authorization code or settlement record, which is submitted to Paymentech.|
|Transaction Receipt||An electronic or paper record of a Transaction generated upon completion of a sale or refund, a copy of which is presented to the Purchaser.|
Exhibit B: American Express Card
Acceptance and Brand Requirements
- Defined Terms. As used in this Exhibit B, the following capitalized terms have the following respective meanings:
- "Cardmember" means an individual or entity that has entered into an agreement establishing an American Express Card account, or whose name appears on the American Express Card.
- "Cardmember Information" means any information about Cardmembers and transactions, including, but not limited to, transaction data, and Cardmember name, addresses, American Express Card numbers, and American Express Card Identification Numbers.
- "Establishments" means any or all of your and your affiliates' locations, outlets, websites, online networks, and all other methods for selling goods and services including methods that you adopt in the future.
- "Marks" means names, logos service marks, trademarks, trade names, taglines, or other proprietary designs or designations.
- "Other Payment Products" means any charge, credit, debit, stored value, prepaid, or smart cards, account access devices, or other payment cards, services, or products other than the American Express Card
- indicate or imply that Merchant prefers, directly or indirectly, any Other Payment Products over the American Express Card,
- try to dissuade Cardmembers from using the American Express Card,
- criticize or mischaracterize the American Express Card or any American Express services or programs,
- try to persuade or prompt Cardmembers to use any Other Payment Products or any other method of payment (e.g., payment by check),
- impose any restrictions, conditions, disadvantages or fees when the American Express Card is accepted that are not imposed equally on all Other Payment Products, except for electronic funds transfer, or cash and check,
- suggest or require Cardmembers to waive their right to dispute any transaction,
- engage in activities that harm our business or the American Express brand (or both),
- promote any Other Payment Products (except Merchant's own private label card that Merchant issues for use solely at Merchant's Establishments) more actively than Merchant promotes the American Express Card, or
- convert the currency of the original sale transaction to another currency when requesting authorization or submitting transactions (or both).
Exhibit C: Arbitration Agreement (as to Disputes involving American Express) (U.S.)
In the event that Merchant or WePay is not able to resolve a "Claim" (as defined in Section 11 below) against American Express, or a claim against WePay or any other entity that American Express has a right to join, this Exhibit C (this "Arbitration Agreement") explains how Claims may be resolved through arbitration. Merchant or American Express may elect to resolve any Claim by binding individual arbitration. Claims will be decided by a neutral arbitrator. If arbitration is elected by any party, neither Merchant nor WePay nor American Express will have the right to litigate or have a jury trial on that Claim in court. Further, Merchant, WePay, and American Express will not have the right to participate in a class action or in a representative capacity or in a group of persons alleged to be similarly situated pertaining to any Claim subject to arbitration under this Arbitration Agreement. Arbitration procedures are generally simpler than the rules in court. An arbitrator's decisions are final and binding, and the arbitrator's final decision on a Claim generally is enforceable as a court order with very limited review by a court. Other rights Merchant, WePay, or American Express would have in court may also not be available in arbitration.
- Initiation of Arbitration. Claims may be referred to either JAMS or the AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration Agreement and the selected organization's rules in effect when the Claim is filed, except where those rules conflict with this Arbitration Agreement. Contact JAMS or the AAA to begin an arbitration or for other information. Claims may be referred to another arbitration organization if all parties agree in writing, if American Express selects the organization and Merchant selects the other within 30 days thereafter or if an arbitrator is appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. 1-16 (FAA). Any arbitration hearing will take place in the federal judicial district where Merchant's headquarters is located or New York, NY, at Merchant's election.
- Limitations on Arbitration. If any party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. No Claim is to be arbitrated on a class or purported representative basis or on behalf of the general public or other persons allegedly similarly situated. The arbitrator's authority is limited to Claims between Merchant, WePay, and American Express. An arbitration award and any judgment confirming it will apply only to the specific case brought by Merchant, WePay or American Express and cannot be used in any other case except to enforce the award as between Merchant, WePay and American Express. This prohibition is intended to, and does, preclude Merchant from participating in any action by any trade association or other organization against American Express. Notwithstanding any other provision in this Arbitration Agreement, if any portion of these Limitations on Arbitration is found invalid or unenforceable, then the entire Arbitration Agreement (other than this sentence) will not apply, except that Merchant, WePay, and American Express do not waive the right to appeal that decision.
- Previously Filed Claims/No Waiver. Merchant, WePay, or American Express may elect to arbitrate any Claim that has been filed in court at any time before trial has begun or final judgment has been entered on the Claim. Merchant, WePay, or American Express may choose to delay enforcing or to not exercise rights under this Arbitration Agreement, including the right to elect to arbitrate a claim, without waiving the right to exercise or enforce those rights on any other occasion. For the avoidance of any confusion, and not to limit its scope, this section applies to any class-action lawsuit relating to the "Honor All Cards," "non-discrimination," or "no steering" provisions of the American Express Merchant Regulations, or any similar provisions of any prior American Express Card acceptance agreement, that was filed against American Express prior to the Effective Date of the Arbitration Agreement to the extent that such claims are not already subject to arbitration pursuant to a prior agreement between Merchant and American Express.
- Arbitrator's Authority. The arbitrator will have the power and authority to award any relief that would have been available in court and that is authorized under this Arbitration Agreement. The arbitrator has no power or authority to alter the Agreement or any of its separate provisions, including this Arbitration Agreement.
- Split Proceedings for Equitable Relief. Merchant, WePay, or American Express may seek equitable relief in aid of arbitration prior to arbitration on the merits if necessary to preserve the status quo pending completion of the arbitration. This section shall be enforced by any court of competent jurisdiction, and the party seeking enforcement is entitled to seek an award of reasonable attorneys' fees and costs to be paid by the party against whom enforcement is ordered.
- Small Claims. American Express will not elect arbitration for any Claim Merchant properly files in a small claims court so long as the Claim seeks individual relief only and is pending only in that court.
- Governing Law/Arbitration Procedures/Entry of Judgment. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce and is governed by the FAA. The arbitrator shall apply New York law and applicable statutes of limitations and honor claims of privilege recognized by law. The arbitrator shall apply the rules of the arbitration organization selected, as applicable to matters relating to evidence and discovery, not federal or any state rules of procedure or evidence, provided that any party may ask the arbitrator to expand discovery by making a written request, to which the other parties will have 15 days to respond before the arbitrator rules on the request. If Merchant's Claim is for $10,000 or less, Merchant may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the rules of the selected arbitration organization. At the timely request of a party, the arbitrator will provide a written opinion explaining his/her award. The arbitrator's decision will be final and binding, except for any rights of appeal provided by the FAA. Judgment on an award rendered by the arbitrator may be entered in any state or federal court in the federal judicial district where Merchant's headquarters or Merchant's assets are located.
- Confidentiality. The arbitration proceeding and all information submitted, relating to or presented in connection with or during the proceeding, shall be deemed confidential information not to be disclosed to any person not a party to the arbitration. All communications, whether written or oral, made in the course of or in connection with the Claim and its resolution, by or on behalf of any party or by the arbitrator or a mediator, including any arbitration award or judgment related thereto, are confidential and inadmissible for any purpose, including impeachment or estoppel, in any other litigation or proceeding; provided, however, that evidence shall not be rendered inadmissible or non-discoverable solely as a result of its use in the arbitration.
- Costs of Arbitration Proceedings. Merchant will be responsible for paying Merchant's share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees Merchant would have incurred if Merchant had brought a claim in court. American Express will be responsible for any additional arbitration fees. At Merchant's written request, American Express will consider in good faith making a temporary advance of Merchant's share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
- Additional Arbitration Awards. If the arbitrator rules in Merchant's favor against American Express for an amount greater than any final settlement offer American Express made before arbitration, the arbitrator's award will include: (1) any money to which Merchant is entitled as determined by the arbitrator, but in no case less than $5,000; and (2) any reasonable attorneys' fees, costs and expert and other witness fees incurred by Merchant.
- Definitions. For purposes of this Exhibit C, "Arbitration Agreement (as to Claims involving American Express) (U.S.)" only, (i) American Express includes its affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables, and all agents, directors, and representatives of any of the foregoing, (ii) Merchant includes Merchant's affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables and all agents, directors, and representatives of any of the foregoing, and (iii) Claim means any allegation of an entitlement to relief, whether damages, injunctive or any other form of relief, against American Express or against WePay or any other entity that American Express has the right to join, including, a transaction using an American Express product or network or regarding an American Express policy or procedure.