Last updated December 12, 2021
These terms of service are an agreement (this “Agreement”) between the entity accepting this Agreement (“Merchant”) and Qira Inc and its subsidiary Globipay LLC, a Delaware company having its address at 49 West 45th Street, New York, NY 10036 (“Company”). At the end of this Agreement there is a glossary where the capitalized terms in this Agreement appear. Company Services are subject to this Agreement, so please read it carefully.
The Services are a cloud-based payment system by which Company, Bank and Processor (as defined in Exhibit C) serve as an agent for Merchants to receive payments on their behalf. Company may also, where requested by a Merchant, perform other services on behalf of Merchant as per the terms hereof and the selections of the Merchant made through its Account.
So long as Merchant is not in breach of this Agreement, Merchant shall be granted a unique and private Account accessible through the Service. The Account shall be a record of Merchant Transactions and Fees. Company shall provide Merchant with access codes for the Account. Merchant assumes full responsibility for the use of its Account and the access codes thereto and shall indemnify Company for any and all claims, losses or other liabilities arising therefrom. Except as required to deliver the Services or as otherwise required by law, Company shall not grant any third party access to the Account of Merchant
It is forbidden for a Merchant to use the Services to, directly or indirectly, knowingly or unknowingly assist in any illegal activity or any Activity which is not related to rent payment or real estate services around his properties. All of the following Persons are prohibited from using the Services: (i) Persons who appear on the U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN); (ii) Persons who are less than 18 years of age; (iii) Persons, or their Affiliates who have been previously terminated for cause by Company or any of its Affiliates; and (iv) Persons who are not both domiciled and resident in the United States.
On sign-up and throughout the term of this Agreement, Merchant shall supply, through the Application, and by such other means as Company may require, information concerning the Merchant, its Guarantor and principals. Merchant shall notify Company of any changes in such information.
Company is not party to the Merchant Relationship with Customer that necessitates the Transaction and Company shall have no obligations thereunder or in respect thereof. Merchant shall indemnify and hold harmless Company, Processor, Bank and their respective shareholders, directors, of officers and employees harmless from any and all claims, losses or other liabilities arising from or in relation to the Merchant Relationship or any Product, including any and all costs associated with the legal defense related to such claims. Each Transaction processed hereunder shall be a payment by Customer to Merchant that is received by Company, its Processor and Bank as agent on behalf of Merchant. Merchant hereby appoints Company, Processor and Bank as its agent for the purposes of receiving payment by Transactions on behalf of the Merchant from its Customers. Company shall have the right, but not the obligation, to issue Receipts to Customers of all Transaction funds received from them.
Company is not a bank, money transmitter or other money services business. Company Service is that of a payment processor, by which Company, Processor and Bank act on behalf of Merchants in the receipt of Transaction payments from Customers. Funds received by Company are not insured by Company or any third party, except the Federal Deposit Insurance Corporation, to the extent that an ordinary commercial bank account bene from its insurance. Company reserves the right to monitor use of the Service to ensure compliance with this Agreement and applicable laws. If Company determines that Merchant is not in compliance with this Agreement or applicable law, Company reserves the right to take appropriate action including, but not limited to suspending or terminating this Agreement or access to the Account. Bank, not Company, settles Transaction funds to Merchant. Company does not at any point hold, own or control funds in connection with the Services, nor does Company transmit money or monetary value. In connection with the Services, Company 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 Customers and Merchants.
ON RECEIPT BY PROCESSOR OR BANK RECEIVING A TRANSACTION FUNDS FROM A CUSTOMER OR ITS ISSUING BANK OF THE MERCHANT, CUSTOMER IS THEREBY RELEASED FROM ANY LIABILITY TO THE MERCHANT IN RESPECT OF THE TRANSACTION FUNDS PAID. THE CUSTOMER OF THE MERCHANT IN EACH TRANSACTION IS NAMED AS A THIRD PARTY BENEFICIARY UNDER THIS AGREEMENT WITH THE MERCHANT SO THAT THE CUSTOMER CAN ENFORCE THE TERMS HEREOF AGAINST THE MERCHANT. NO DELAY IN PAYMENT BY COMPANY ON A GIVEN TRANSACTION AMOUNT TO MERCHANT, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION SEIZURE OF COMPANY ASSETS OR BANKRUPTCY OF COMPANY, SHALL SERVE TO DIMINISH THE FOREGOING OR ENTITLE MERCHANT TO COLLECT ANY AMOUNT FROM A CUSTOMER IN RESPECT OF WHICH A RECEIPT HAS BEEN ISSUED BY COMPANY.
Customer will be debited or charged by the Bank for each Transaction. The Merchant agrees that the Customer’s obligation to the Merchant is treated as paid at the time of the release of Transaction information to Company and initiation of processing thereof by the Bank. After the initiation of processing by the Bank, Merchant agrees not to attempt to collect or otherwise seek payment from the Customer, because Merchant agrees Customer’s obligation to the Merchant has been satisfied.
Transactions may be disputed at any time up to 90 days from the date of Transaction, regardless of state, by the Customer. Disputes resolved in favor of the Customer may result in reversal of the disputed Transaction, regardless of state. Company reserves the right to limit or restrict Transaction size or volume at any time.
Subject to Merchant compliance with technical specifications prescribed by Company, Processor, Bank and the Rules, Merchant shall cause information concerning Card Transactions to be communicated to Payment Networks and Bank whereupon, Company shall cause Bank to acquire the funds related to such Transactions and settle such funds to Merchant. Merchant, however, remains exclusively responsible for data stored on its systems and those under its control.
Company makes no representation or guarantee with respect to Customer’s Card having suficient available funds, that a Transaction will be authorized or processed, or that the Transaction will not later result in a chargeback or reversal.
Merchant is responsible for all acts and omissions of its employees and agents and shall cause all of them to perform in compliance with this Agreement.
If Merchant is not party to an agreement with a Processor designated by Company, and Company has activated ACH Transaction Services in the Account, then: (i) subject to the applicable Company Customer Terms, Merchant Relationship, Customer ACH Consent and instructions of Merchant provided in the Account hereunder, Company shall cause its processor to debit Customer Fees from the Customer DDA; and (ii) Company shall then cause Processor to settle such amounts, less applicable Fees, to the Deposit Account.
In connection with Merchant procuring Services from Company, Merchant understands that one or more consumer reports as defined in the Federal Fair Credit Reporting Act as amended (“FCRA”), 15 U.S.C. 1681 and following, may be obtained by Company from consumer reporting agencies (each a “CRA”). Merchant (which term shall include its shareholders, officers and Guarantors in this consent) understands that this report may include information with respect to public record information, criminal records, motor vehicle operation history, education records, names and dates of previous employers, reason for termination of employment and work experience, and/or credit worthiness, capacity and standing, character, general reputation, personal characteristics, or mode of living, such information may be used to evaluate whether Merchant is an appropriate candidate for transacting with Company and this determination may be adverse to Merchant. The information obtained will not be provided to any parties other than to designated authorized representatives of Company. Merchant further understands that the CRA may not give out information about Merchant to Company without Merchant’s written consent. Merchant hereby authorizes Company now, or at any time while it is party to an agreement with Company or otherwise engaged by Company, to obtain a consumer report on Merchant. This authorization does not include the release of Merchant’s medical information. A copy, fax or scan of this consent shall be considered as effective and valid as the original. Merchant understands that in the event any adverse action is taken against Merchant based in whole or in part on the consumer report, Merchant shall be provided with the name of the CRA and a copy of the report as well as a description of Merchant’s rights under the FCRA. On request, California, Minnesota and Oklahoma residents, can obtain a copy of any consumer credit report requested by Company. On request, New York residents can be informed if a consumer credit report has been requested on them by Company as well as the name of the agency providing the report. Merchant and its Guarantors have read and understand the above and authorize Company to perform the above investigations. Merchant must provide accurate and complete information. If Company cannot verify that this information is complete and accurate, Company may deny Merchant use of Company Service, or close Merchant Account.
Merchant shall pay Fees for the Services. Fees shall be paid to Company by offsets from Transaction fund settlements to the Designated Account, however, if there are insufficient Transaction funds to cover Fees, then Merchant shall pay the Fees no later than the fifth (5) day following the month during which they accrued.
Company reserves the right to charge Customer Fees under Company Customer Terms. Despite, in some instances charging Customer Fees, at no time does Company take those fees for promising to deliver funds to Merchant or other money services business activity.
If Merchant have either (1) $1,000,000 or greater in charge volume in a rolling twelve month period, or (2) greater than $1,000,000 in American Express charge volume in any three consecutive months, Merchant shall be converted to a direct Card acceptance relationship with American Express and, upon conversion, Merchant will be bound by the then-current American Express Card acceptance agreement and American Express will set the discount and other fees payable by Merchant for American Express Card acceptance. Merchant shall be bound by the Merchant Services Agreement set forth in Exhibit A to this Agreement if Merchant receives more than $1,000,000 in payments from Visa or MasterCard in a twelve-month period. Company enters into the Merchant Processing Agreement as an agent of the Processor. By agreement to this Agreement, Merchant also agrees to the terms and conditions of the Merchant Services Agreement, which constitutes a legal binding contract between Merchant, on the one hand, and VANTIV, LLC and its designated Bank, on the other hand. Merchant shall comply with the Rules, including those posted at the following sites and are incorporated herein by reference: usa.visa.com, www.mastercard.com, www.americanexpress.com and www.discover.com. Merchant agrees with the specific requirements of the American Express Merchant Regulations, US set out in Exhibit B and Exhibit 1 to this Agreement. We can provide Merchant with excerpted provisions of the ACH Rules upon Merchant request.
Bank shall hold, receive, disburse and settle Transaction funds on Merchant behalf. Where deemed necessary by Bank, Processor of Company, Bank may generate a paper draft or electronic funds transfer to process each Transaction. Subject to this Agreement, Merchant also authorizes Bank to debit or credit any payment card or other payment method Company accepts. Merchant authorizes Bank to initiate electronic ACH entries to the Deposit Account and to initiate adjustments for any Transactions credited or debited in error. Merchant agree to be bound by the ACH Rules, and Merchant agree that all ACH transactions that Merchant initiate will comply with all applicable law. Merchant’s authorization will remain in full force and effect until Merchant notify Company that Merchant revoke it by contacting Company through the Account. Merchant understand that Company requires a reasonable time to act on Merchant revocation.
15.1 Merchant must not:
15.2. A Merchant may set a minimum transaction amount to accept a Card that provides access to a credit account, under the following conditions:
The minimum transaction amount does not differentiate between Issuers; and
The minimum transaction amount does not differentiate between Mastercard and another acceptance brand; and
The minimum transaction amount does not exceed USD 10 (or any higher amount established by the Federal Reserve by regulation)
15.3 Merchant may set a maximum transaction amount to accept a Card that provides access to a credit account, under the following conditions:
The Merchant
o MCC 8220 – Colleges, Universities, Professional Schools, Junior Colleges; or
o MCC 8244 – Schools, Business and Secretarial; or
o MCC 8249 – Schools, Trade and Vocational; and
The maximum transaction amount does not differentiate between Issuers; and
The maximum Transaction amount does not differentiate between Mastercard and another acceptance brand.
15.4 Merchant must not disburse funds in the form of cash unless:
Merchant is participating in full compliance with a program supported by an Association for such cash disbursements.
Merchant is dispensing funds in the form of travelers cheques, TravelMoney, or similarly authorized cards, or foreign currency. In this case, the transaction amount is limited to the value of the travelers cheques, TravelMoney, or similarly authorized Card, or foreign currency, plus any commission or fee properly charged by Merchant.
15.5 Merchant must not disburse funds in the form of travelers cheques if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from that Merchant.
15.6 Merchant must not submit a transaction that does not result from an act between the Cardholder and the Merchant.
15.7 Merchant must not accept a Card issued by a U.S. Issuer, to collect or refinance an existing debt, unless expressly authorized by, and in compliance with, Operating Regulations.
15.8 Merchant must not accept a Card to collect or refinance an existing debit that has been deemed uncollectable by the Merchant providing the associated goods or services.
15.9 Merchant must not submit a transaction that represents collection of a previous Card charge.
15.10 Merchant must not submit a transaction that represents collection of a dishonored check.
15.11 Merchant must not request or use a Card account number for any purpose other than as payment for its goods or services
15.12 Merchant must not add any tax to transactions, unless applicable law expressly requires that a it be permitted to impose a tax. Any tax amount, if allowed, must be included in the transaction amount and not collected separately.
15.13 Any limited acceptance options exercised are exercised at the discretion of the Merchant subject to the terms hereof.
Merchant expressly consents for Company, Processor, Bank and all third parties that assist in the delivery of the Services to collect, use, store and disclose Company information, including that provided in the Application, information concerning Customers, Transactions and the business of the Merchant in order to supply the Services, generate reports, to reduce fraud, provide customer support, create and share aggregated data concerning the Services and assessing the risk associated with the Merchant. Payment Networks shall have the right to use Merchant name, address, and internet addresses. Where Merchant provides information concerning Customers to Company,
Merchant states that it has obtained all necessary consents from such Customers to disclose such information to Company so that Company can use that information to supply the Services and also perform under the Company Customer Terms.
Each Account must be linked to a verified Deposit Account. The Bank will transfer funds to the Merchant’s Deposit Account according to the schedule the Merchant selects from those available in the Account. If Bank cannot transfer the funds to the Merchant’s Deposit Account (due to inaccurate or obsolete bank account information entered by the Merchant, or for any other reason), Company may, at its discretion, refund the funds to the Customer or escheat them as provided below. None of Bank, Company or the Customer will have any liability to Merchant for funds so refunded. Settlements to a bank account shall be limited or delayed based on Merchant perceived risk and history with Company as determined by the sole and absolute discretion of Company or Bank. Unless otherwise agreed in writing by Company, Transaction settlement shall be by ACH to the Deposit Account. None of Bank, Processor or Company shall not be under any obligation to pay to Merchant any amount that it has not actually received from a Customer, less Fees and other liabilities of Merchant hereunder. Refunds, returns, reversals of Transactions that Merchant wishes to carry out shall be the sole and exclusive responsibility of Merchant, provided that Company may, at its sole discretion assist in such Transactions at its sole and absolute discretion.
Where Customer Fees have been settled to Merchant and such Customer Fees are required to be returned to Customer on account of the deficiency of a Customer Payment Consent or for any other reason, Merchant shall reimburse all such Customer Fees to Company on demand.
Merchant shall never be entitled to use the Services to collect more than Customer has agreed to pay under the applicable Merchant Relationship and Customer Payment Consents.
Company reserves the right, but has no obligation, to deliver to each Customer a Receipt, in the name of Merchant, for each amount of Customer Fees that are subject to a Transaction. Merchant shall honor each such Receipt as if it were issued by Merchant itself.
Company is not responsible for any nonpayment of Customer Fees, nonsufficient funds, NSF, charge backs, rejected Transactions, or any other nonpayment issue as a result of non-payment or inability to pay of a Customer; Merchant shall be responsible to reimburse Company for liabilities associated therewith and Company shall have the right, without limitation, to debit them from the Deposit Account by way of the Property Manager ACH Consent.
Where deemed necessary or appropriate by Bank or Company, Bank shall create a reserve account (the “Reserve”) in order to protect Bank and Company from actual or potential liabilities hereunder. The Reserve will be in an amount determined by Bank or Company in their discretion to cover anticipated chargebacks, returns, unshipped Product and/or unfulfilled services or credit risk based on Merchant processing history. The Reserve may be raised, reduced or removed at any time by Bank or Company. Where the Reserve is not adequately funded, Merchant shall pay all amounts requested by Company for the Reserve within one (1) business day of a request for such amounts and Bank and Company may build the Reserve by off-sets from Transaction settlements or by debiting the Designated Account, or any other account of the Merchant, by ACH.
Merchant grants Company a security interest in and lien on any and all funds held in any Reserve, and also authorize Company to make any withdrawals or debits from the Reserve, without prior notice to Merchant, to collect amounts that Merchant owes Company under this Agreement, including without limitation for any reversals of deposits or transfers. Merchant will execute any additional documentation required for Company to perfect Company security interest in any funds in the Reserve. This security interest survives for as long as Company hold funds in Reserve; however, it does not apply to any funds for which the grant of a security interest would be prohibited by law. Merchant irrevocably assigns to Company all rights and legal interests to any interest or other earnings that accrue or are attributable to Merchant Reserve. Bank shall retain possession of Reserve funds following termination hereof for at least 180 days and for such longer period of time until Bank and Company have determined that neither is exposed to further liability under this Agreement.
If Merchant collects, stores, uses or discloses any Cardholder Data Merchant shall comply with the Cardholder Information Security Program (CISP) and Payment Card Industry Data Security Standards (collectively, “PCI DSS”) and such other security programs as Company or Payment Networks may require and shall certify such compliance when requested by Company or a Payment Network. Merchant shall use only PCI DSS compliant Third Party Servicers in connection with the storage, processing, or transmission of Cardholder Data.
Merchant has exclusive responsibility for security of Cardholder Data and other information on Merchant systems or those under its control. Merchant shall comply with all applicable laws, Rules, and rules in connection with Merchant collection, security and dissemination of any personal, financial, or transaction information.
Merchant shall maintain adequate security so as to prevent a breach of Customer or Cardholder data. In the event of any actual or suspected breach of data in possession or control of Merchant or one of its Third Party Services, Merchant shall immediately notify Company thereof and also comply with all applicable laws and Rules concerning the breach.
Merchant shall obtain from each Customer all consents required under the Rules and applicable law for the collection, use, storage and disclosure of any and all information provided by Customers or obtained by Merchant or its agents or Third Party Servicers under the Merchant Relationship or otherwise. Merchant shall indemnify and hold Company and Bank harmless from and against any liability arising on account of or in relation to the failure by Merchant to obtain consents from Customers related to their information or Cards.
Merchant shall permit Company, Bank, a Payment Network or any governmental entity having jurisdiction over any of them to audit the records of Merchant in order to verify compliance with the terms hereof.
Merchant has the exclusive responsibility to calculate, charge, collect and remit state and other taxes applicable to Product sales. Company or the Bank may have tax reporting responsibilities in connection with the Service such as an Internal Revenue Service (“IRS”) on Form 1099-K.
Merchant are solely responsible for its Product, including all of its properties and Merchant Relationships and all customer service issues related thereto including pricing, order fulfillment, order cancellation by Merchant or the customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with Merchant personnel, policies or processes. Merchant shall post its customer service telephone number on its website.
Merchant agrees to process returns of, and provide refunds and adjustments for goods or services in accordance with this Agreement and the Rules. The Rules require that Merchant will: (i) maintain a fair return, cancellation or adjustment policy; (ii) disclose Merchant return or cancellation policy to Customers at the time of purchase; (iii) not give cash refunds to a Customer in connection with a payment card sale, unless required by law; and (iv) not accept cash or any other item of value for preparing a payment card sale refund. Merchant’s refund policies must be the same for all payment methods.
The amount of a payment may be charged back to Merchant if: (i) it is disputed by a Customer; (ii) it is reversed for any reason; (iii) it was not authorized or Company have any reason to believe that the transaction was not authorized; or (iv) it is unlawful, suspicious, or in violation of the terms of this Agreement. Merchant are responsible for all chargebacks, whether or not the chargeback complies with the Rules.
Merchant shall immediately pay Company the amount of all chargeback and related Fees, nes, or penalties assessed by the Bank, Company processor or the Payment Networks. If Merchant do not have sufficient funds in Merchant Account, Company can offset the amounts thereof from other Transaction amounts owing to Merchant hereunder, debit the amount by ACH from the Deposit Account or oblige Merchant to make immediate payment thereof.
If Company determines that Merchant is incurring an excessive amount of Chargebacks, Company or the Bank may establish controls or conditions governing Merchant Account, including without limitation, by: (i) assessing additional Fees; (ii) creating a Reserve in an amount reasonably determined by Company to cover anticipated chargebacks and related fees; (iii) delaying payment; and (iv) terminating or suspending the Service or closing the Account. Merchant shall assist in the investigation of any and all chargebacks or other actual or potential Transaction disputes and shall timely provide such information to Company as Company may request,
Where amounts are owing from Merchant to Company hereunder, Company shall have the right to immediately, without prior consent or notice, offset or debit such amounts from funds: (i) deposited by Merchant; (ii) due to Merchant under this Agreement; (iii) the Reserve; or (iv) available in Merchant Deposit Account, or other payment instrument registered with the Bank or elsewhere.
Merchant’s failure to pay in full amounts that Merchant owes Company on demand will be a breach of this Agreement. Merchant will be liable for Company 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 (1.5%) per month or the highest rate permitted by applicable law. In its discretion, Company may make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution. Merchant hereby expressly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided by Merchant to Company. Such communication may be made by Company or by anyone on its behalf, including but not limited to a third party collection agent.
Merchant shall have exclusive responsibility for: (i) compiling and retaining permanent records of all Transactions and other data, and (ii) reconciling all Transaction information that is associated with Account. If Merchant believe that there is an error or unauthorized Transaction activity associated with Merchant Account, Merchant shall immediately notify Company. We will attempt to correct processing errors that Company discover by instructing the Bank to debit or credit Merchant Account. Company will only correct Transactions that are processed incorrectly if and when Merchant notify Company of such an error in a timely fashion.
Merchant shall post a privacy policy to its website and shall honor the terms thereof. Company shall comply with its own privacy policy posted on the Site.
The initial term of this Agreement shall begin as of when it is accepted by both parties hereto and shall end three (3) years thereafter after which it shall renew for additional and successive one (1) year terms. Either party can terminate this Agreement at the end of the then current term on not less than ninety (120) days notice.
A Notwithstanding the above, the parties will have the following rights:
(a)Automatic Termination. This Agreement will automatically terminate if: (i) Visa or MasterCard prohibits Company from providing, or prohibits Vendor from allowing Company to provide, the services set forth in this Agreement; (ii) Company ceases to be registered as an independent sales organization or member service provider with Visa or MasterCard; (iii) Vendor stops providing Merchant services; or (iv) Vendor is no longer a member of MasterCard or Visa.
Each of the following occurrences will constitute an “Event of Default” under this Agreement:
Notwithstanding the previous sentence, (a) the fourth such breach by Merchant will be deemed an Event of Default by Merchant without notice or the opportunity to cure; and (b) in the event that Company determines that a breach by Merchant is not reasonably capable of being cured, then no advance notice or opportunity to cure shall be provided to the Merchant notwithstanding any provision herein to the contrary.
On any termination hereof, Merchant shall remain liable hereunder for any and all Fees or costs accrued prior to or following termination and any other amounts owed by Merchant to Company, Processor, Bank or a Payment Network.
Company reserves all rights not expressly granted to Merchant in this Agreement. Company owns the title, copyright and other worldwide intellectual property rights in the Service, the App and all copies thereof. This Agreement does not grant Merchant any rights to Company’s trademarks or service marks, nor may Merchant remove, obscure, or alter any of Company’s trademarks or service marks included in the Service, the App or any other Company property. All comments and suggestions concerning the Services provided to Company shall be the property of Company and Merchant shall not have any rights therein.
Merchant shall indemnify, defend and hold Company, Bank, Payment Networks and all third parties shall assist in providing the Services, as well as Customers and their respective employees, directors, agents harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a Customer or other third party person or entity that arises out of or relates to: (i) any actual or alleged breach of Merchant representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of Company policies, the Rules or the App License; (ii) Merchant wrongful or improper use of the Service; (iii) any Transaction submitted by Merchant through the Service (including without limitation the accuracy of any product information that Merchant provide or any claim or dispute arising out of products or services offered or sold by Merchant); (iv) Merchant violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (v) Merchant violation of any applicable law; (vi) any other party’s access and/or use of the Service with Merchant’s access code; or (vii) any Transaction for which Customer Payment Consent was not obtained.
Merchant states that: (i) Merchant is eligible to register and use the Service and has the authority and capacity to enter into and perform under this Agreement; (ii) the name identified in the Application is Merchant name or business name under which Merchant sells goods and services; (iii) any sales transaction submitted by Merchant shall represent a bona de sale by Merchant; (iv) any Transactions submitted by Merchant will accurately describe the Product sold and delivered to a Customer; (v) Merchant shall fulfill all of Merchant obligations to each Customer for which Merchant submit a Transaction and will resolve any consumer dispute or complaint directly with the Customer; (vi) Merchant and all Transactions initiated by Merchant shall comply with all applicable laws; (vii) except in the ordinary course of business, no Transaction submitted by Merchant through the Service will represent a sale to any principal, partner, proprietor, or owner of Merchant entity; and (viii) Merchant will not use the Service, directly or indirectly, for any fraudulent undertaking, undertaking that Merchant should have known is fraudulent, in any manner so as to interfere with the use of the Service or in a manner that was not authorized by a Customer.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT MERCHANT’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON A INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND MERCHANT ARE WAIVING MERCHANT RIGHTS TO HAVE MERCHANT CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST COMPANY.
All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) (“AAA”) according to this provision and the applicable arbitration rules. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Arbitration shall take place not more than 50 miles from the of ce of the Company before a single arbitrator who is a lawyer practicing commercial law.
In the event that Merchant or Company are not able to resolve a Dispute with American Express, or a claim against Company or any other entity that American Express has a right to join, Exhibit 1 will apply.
and all related electronic documents, shall be governed by the provisions of the Electronic Signatures in Global and National Commerce Act (E-Sign). By pressing “Submit”, “Accept” or “I Agree”, Merchant agrees (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, (iii) that Merchant has the ability to print or otherwise store the Agreement and related documents, and (iv) to authorize Company to conduct an investigation of Merchant’s credit history and that of its principals with various credit reporting and credit bureau agencies for the sole purpose of determining acceptance of this Agreement and ongoing performance hereunder.
This Merchant Services Agreement for Sub-Merchants (“Merchant Agreement”) is made among VANTIV, LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384 and its designated Merchant Bank (collectively “Acquirer”) and the “Merchant” as defined in, and in connection with, the Terms of Service between AmercianVolume, LLC, dba Globipay and the User (herein referred to as “Sub-merchant”). Capitalized terms not otherwise defined herein have the respective meanings given them in the Company Terms of Service. Acquirer will provide Sub-merchant with certain payment processing (the “Services”) in accordance with the terms of this Merchant Agreement. In consideration of Sub-merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with Visa, MasterCard, Discover, and certain similar entities (collectively, “Associations”), Sub-merchant is required to comply with the Rules as they pertain to applicable credit and debit card payments. In addition, if Sub-merchant meets certain requirements under the Operation Regulations or an Association or the Rules otherwise require, Sub-merchant may be required to enter into a direct relationship with an entity that is a Merchant of the Associations. By agreeing to the Company Terms of Service to which this Merchant Agreement is an exhibit (by “click through” agreement or otherwise), Sub-merchant has fulfilled this requirement, if and when applicable. However, Acquirer understands that Sub-merchant may have contracted with Company to obtain certain processing services and that Company may have agreed to be responsible to Submerchant for all or part of Sub-merchant’s obligations contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:
http://usa.visa.com/merchants; and http://mastercard.com/us/merchant/ and http://discovernetwork.com/merchants/. Without limiting the foregoing, Submerchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the Bank Secrecy Act, the US Treasury’s Office of Foreign Assets Control (OFAC) and the Federal Trade Commission. For purposes of this section, Agents include, but are not limited to, Sub-merchant’s software providers and/or equipment providers. If so indicated in the Company Terms of Service, Sub-merchant may be a limited-acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and MasterCard card types (i.e., consumer credit, consumer debit, and commercial cards) and must display appropriate signage to indicated the same. Acquirer has no obligation other than those expressly provided under the Rules and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.
Sub-merchant shall only complete sales transactions produced as the direct result of bona de sales made by Sub-merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities.
Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions:
Sub-merchant is a i) department, agency or instrumentality of the U.S.
government; ii) corporation owned or controlled by the U.S. government; or iii) Sub-merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 – Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand.
Services and/or terminate this Agreement without notice if (i) Sub-merchant or Company fails to pay any amount to Acquirer when due, (ii) in Acquirer’s opinion, provision of a service to Sub-merchant or Company may be a violation of the Rules or any Laws, (iii) Acquirer believes that Sub-merchant has violated or is likely to violate the Rules or the Laws, (iv) Acquirer determines Submerchant poses a financial or regulatory risk to Acquirer or an Association, (v) Acquirer’s agreement with Company terminates, (vi) any Association deregisters Company, (vii) Acquirer ceases to be a Merchant of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by any of the Associations.
EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Sub-merchant’s sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement. In the event that Sub-merchant has any claim arising in connection with the Services, rights, and/or obligations defined in this Agreement, Sub-merchant shall proceed against Company and not Acquirer, unless otherwise specifically set forth in the Rules. In no event shall Acquirer have any liability to Submerchant with respect to this Agreement or the Services. Sub-merchant acknowledges Acquirer is only providing this Agreement to assist in Company’s processing relationship with Sub-merchant, that Acquirer is not liable for any action or failure to act by Company, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Submerchant by Company. If Company is unable to provide its services to Submerchant in connection with this Agreement and Acquirer elects to provide those services, directly, Sub-merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer’s then current Bank Card Merchant Agreement, which would be provided to Submerchant, will govern Acquirer’s relationship with Sub-merchant. If Company subsequently provides its services to Sub-merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Company and this Agreement will govern Acquirer’s relationship with Sub-merchant.
Exhibit B – American Express Card Acceptance and Brand Requirements
The following will only apply to Merchant’s participation in the American Express Program. Capitalized terms in this Exhibit are defined in the American Express Merchant Requirements.
Merchant hereby authorizes Processer to submit Transactions to, and receive settlement from, American Express on behalf of the Merchant. If Merchant is placed in the American Express Program, Merchant shall be responsible for complying with the provisions set forth in Exhibit 1 attached hereto and the Merchant Requirements (located at www.vantiv.com/amexmerchantrequirements).
Acquirer may disclose Transaction Data, Merchant Data, and other information about the Merchant to American Express; and American Express may use such information to perform its responsibilities in connection with the Program, promote the American Express Network, perform analytics and create reports, and for any other lawful business purposes, including marketing purposes within the parameters of the Agreement. American Express may use the information from the Agreement at the time of setup to screen and/or monitor Merchant in connection with Card marketing and administrative purposes.
Merchant may be converted from the American Express Program to a direct Card acceptance relationship with American Express if and when Merchant has either (i) greater than $1,000,000 in Charge Volume in a rolling twelve (12) month prior or (ii) greater than $1,000,000 in Charge Volume in any three (3) consecutive months (hereinafter “High CV Merchant”). Upon conversion, (i) the Merchant will be bound by American Express’ then-current Card Acceptance Agreement; and (ii) American Express will set pricing and other fees payable by the Merchant for Card acceptance.
Merchant shall not assign to any third party any payments due to it under the Agreements, and all indebtedness arising from Charges will be for bona de sales of goods and services (or both) at its Establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that the Merchant may sell and assign future Transaction receivables to Acquirer, its affiliated entities and/or any other cash advance funding source that partners with Acquirer or its affiliated entities, without consent of American Express.
Third-party beneficiary rights may be conferred to American Express, but not obligations to the Merchant Processing Agreement, providing American Express the ability to enforce the terms of the Agreement against the Merchant in association with the American Express Program only.
Merchant may elect to opt out of accepting American Express Cards at any time without directly or indirectly affecting its rights to accept other payment products by notifying Acquirer.
Processor may terminate the Merchant’s right to accept American Express Cards if it breaches any of the provisions in this Section or Exhibit 1.
Acquirer has the right to immediately terminate a Merchant from the American Express Program for cause, fraudulent or other activity, or upon American Express’ request.
Merchant may not bill or collect from any American Express cardholder for any purchase or payment on the Card unless Chargeback has been exercised, the Merchant has fully paid for such Charge, and it otherwise has the right to do so.
Upon termination of the Agreement or termination of Merchant’s participation in the Program, Merchant must remove any and all American Express Licensed Marks from the Merchant’s Website and wherever else the American Express Marks are displayed.
Exhibit 1
American Express Program
General Merchant Requirements
Except as expressly permitted by Applicable Law, Merchant must not:
Merchant may offer discounts or in-kind incentives from Merchant’s regular prices for payments in cash, ACH funds transfer, check, debit card or credit/charge card, provided that (to the extent required by Applicable Law): (i) Merchant clearly and conspicuously disclose the terms of the discount or in kind incentive to Merchant’s customers, (ii) the discount or in-kind incentive is offered to all of Merchant’s prospective customers, and (iii) the discount or in kind incentive does not differentiate on the basis of the issuer or, except as expressly permitted by applicable state statute, payment card network (e.g., Visa, MasterCard, Discover, JCB, American Express). The offering of discounts or in-kind incentives in compliance with the terms of this paragraph will not constitute a violation of the provisions set forth above in this Section B., “Treatment of the American Express Brand”.
Whenever payment methods are communicated to customers, or when customers ask what payments are accepted, Merchant must indicate Merchant’s acceptance of the Card and display our Marks (including any Card application forms provided to Merchant) as prominently and in the same manner as any Other Payment Products. Merchant must not use the American Express Marks in any way that injures or diminishes the goodwill associated with the Mark, nor (without prior written consent from Processor) indicate that American Express endorse Merchant’s goods or services. Merchant shall only use the American Express Marks as permitted by the Agreement and shall cease using our Marks upon termination of the Agreement.
Any and all Card Member Information is confidential and the sole property of the Issuer, American Express or its Affiliates. Except as otherwise specified, Merchant must not disclose Card Member Information, nor use nor store it, other than to facilitate Transactions at Merchant’s Establishments in accordance with the Agreement.
In the event that Merchant or Processor is not able to resolve a Claim against American Express, or a claim against Processor or any other entity that American Express has a right to join, this section 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 Processor nor American Express will have the right to litigate or have a jury trial on that Claim in court. Further, Merchant, Processor, 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 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, Processor, or American Express would have in court may also not be available in arbitration.
Express Merchant Regulations, or any similar provisions of any prior American Express Card acceptance agreement that was led against American Express prior to the Effective Date of the Agreement to the extent that such claims are not already subject to arbitration pursuant to a prior agreement between Merchant and American Express.
If a Merchant closes any of its Establishments, Merchant must follow these guidelines:
Notify payment processing company
Policies must be conveyed to the Card Member prior to completion of the Charge and printed on the copy of a receipt or Charge Record the Card Member signs. See Section 4.8, “Return and Cancellation Policies” of the Merchant Requirements for additional information.
Return and cancellation policies must be clearly disclosed at the time of sale.
“ACH Transaction Service” means the Service of Company or a Processor of Company, subject to applicable Customer ACH Consent, Merchant Relationship and Company Customer Terms, initiating ACH debits on Customer DDA as agent of Merchant which debit shall be a Transaction hereunder;
“ACH” means the Automated Clearing House;
“Account” means a unique and private account supplied by Company accessible through the Service;
“Affiliate” means, with respect to any party, any corporation, company, partnership or other entity which is directly or indirectly controlled by such party or is directly or indirectly controlled by a person or entity that is the same as that which controls the party. For the purposes of this definition, control shall mean ownership of half or more of the voting interests in an entity;
“American Express” means American Express Travel Related Services Company Inc.;
“App” means a mobile device application supplied by Company to access the Services;
“App License” means a license agreement between Company and Merchant pursuant to which Company grants Merchant a limited, non-transferrable right to use the App;
“Application” means an electronic of paper form completed by the Merchant in relation to procuring the Services which shall form a part hereof and constitute representations by the Merchant hereunder;
“Bank” or “Acquirer” means a member of a Payment Network that has sponsored Company as a payment services provider, payment facilitator or otherwise to supply the Services and that acquires Card Transaction funds through Payment Networks. Bank shall also include Processor;
“Card” means a payment card or account number issued by a Payment Network member to a Cardholder pursuant to a valid agreement between the Cardholder and the Issuing Bank;
“Cardholder Data” means information associated with a Card, such as account number, expiration date, and CVV2;
“Company Customer Terms” means terms and conditions of use between Company and a Customer related to the Customer’s access to the Services. For greater certainty, Company never acts as agent of a Customer for payment purposes;
“Customer ACH Consent” means a consent given by the Customer for Merchant or Company as its agent, or either of their respective payment processors, to initiate debits on the Customer DDA for Transactions;
“Customer Card Payment Consent” means a consent by a Customer for a Transaction on their Card;
“Customer DDA” means a deposit account of Customer at a U.S. bank which account has been identified by Customer in Customer Company Terms for use in association with ACH Transaction payments to Merchant;
“Customer Fees” are fees payable by Customer under the Customer Company Agreement;
“Customer Payment Consent” means either a Customer ACH Consent or a Customer Card Payment Consent or both;
“Deposit Account” means a deposit account of Merchant at a financial institution in the U.S. identified for use in conjunction with this Agreement by the Merchant through the Site or the Application;
“Fees” means the fees of Company for which Merchant is liable in exchange for the Services. Fees are set out in the Application or the Site. Fees are subject to change on thirty (30) days prior notice through the Account or by email to Merchant; if Merchant continues to use the Services after such thirty (30) days it shall be deemed to agree to the change in Fees. Fees may also change, with or without prior notice or consent, if Payment Networks or other third parties impose additional fees on Company for the supply of the Services or on amendments to applicable law that require Company to amend the Fees;
“Issuing Bank” or “Issuer” means a member of a Payment Network that issues Payment
Network-branded Cards pursuant to the Rules;
“MasterCard” means MasterCard International Incorporated;
“Merchant Relationship” means the commercial or legal relationship between Merchant and Customer by which Merchant supplies Product to Customer giving rise to the Transaction;
“Payment Network” means Visa, MasterCard, American Express and such other payment networks as Company indicates are compatible with the Services; “Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity;
“Processor” means a payment processor, VANTIV, LLC, that has contracted with Company to assist Company in delivering the Services;
“Product” means any product or service offered for sale or sold by Merchant; “Prohibited Activity” means any adult content; airlines, including charter airlines; alimony, child support, or other court-ordered payments; bidding fee auctions, including penny auctions; brand or reputation damaging, potential or otherwise, including bestiality, child pornography, escort services, mail order brides, and occult; buyers clubs, discount clubs or membership clubs; check cashing, or payment for a dishonored check or for an item deemed uncollectible by another merchant; computer repair or maintenance services; commodity trading or security trading; cruise lines; credit counseling or credit repair agencies; credit protection or identity theft protection services; counterfeit or possibly counterfeit goods, or products that infringe on the intellectual property rights of others; debt collection, consolidation, or reduction services; deceptive, unfair, predatory products, services or activities, or prohibited by the card payment networks; digital currency; discount medical or dental plans including discount insurance; discount coupon merchants or online sites; distressed property sales and marketing; door to door sales; drugs, alcohol, or drug paraphernalia, pseudo-pharmaceuticals, substances designed to mimic illegal drugs, or items that may represent them; factoring, liquidators, bailiffs, bail bondsmen; financial services or instruments, such as cash advances, bill payment, loans or loan payments, money orders, money transfers, prepaid cards, wire transfers, or sales of money orders or foreign currency; gambling or betting, including lottery tickets, casino gaming chips, off-track betting, sports forecasting or odds making, fantasy football, memberships on gambling-related internet sites and wagers at races, contests, sweepstakes, and offering prizes as an inducement to purchase goods or services; hate, violence, racial intolerance, or the financial exploitation of a crime; high interest rate non-bank consumer lending including payday lending and title loans; infomercial merchants; internet pharmacies or pharmacy referral sites; inbound or outbound telemarketing businesses including lead generation businesses; investment or “get rich quick” merchants, businesses or programs; licensed or franchised goods or services, such as apple products; marijuana dispensaries and related products or services; marketing activities involving “pay only for shipping” and/or “free trial” periods; medical equipment; multi-level marketing businesses, pyramid or ponzi schemes; merchants offering special incentives; negative option, renewal, or continuity subscription practices; obscene or pornographic items; pawn shops; pharmaceuticals, including medical marijuana; prepaid phone cards or phone services; prostitution, escort services, massage parlors, and other potentially sexually related services; real estate or motor vehicle sales; rebate or upsell programs; scrip-dispensing terminal; selling of mobile minutes; selling or sales of social media activity; stored value or quasi-cash; timeshares, timeshare resales and related marketing; tobacco, cigarettes, or e-cigarettes; unlawful activities or items, or activities or items that encourage, promote, facilitate or instruct others regarding the same; violent acts towards self or others, or activities or items that encourage, promote, facilitate or instruct others regarding the same; virtual currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exist in the virtual world; weapons, including replicas and collectible items, or ammunition or other accessories; weight loss programs; if merchant fall within the following exclusions, merchant will not accept the American Express card; equities (including stocks, bonds, or any other ownership position in a corporation); goods or services to be delivered more than two (2) months in the future, with an intention of gaining return on investment; internet auctions; political parties; telecommunications (including wireless, cable and internet); travel industry (including car rental, lodging, and other travel tour operators); in addition, merchant 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 merchants or third parties without their consent, or using such information except as necessary to use the service; sending unsolicited offers, advertisements, proposals, or junk mail or spam to others. this includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation materials, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signature; accepting payments for goods or services provided by someone other than merchant; providing merchant itself or others with a cash advance from a credit card; any illegal purpose, or violating any local, state, national, or international law, statute, or regulation, including, without limitation, laws governing intellectual property, taxation, and data collection and privacy; 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 Company, including without limitation, using the service in an automated manner; interfering with another merchant’s enjoyment of the service, by any means, including by uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code; competing with Company or Company’s business partners; sending or receiving what Company considers to be funds for something that may have resulted from fraud or other illegal behavior; abusing the payment card system or violating the rules, in the reasonable opinion of the card payment networks or Company; operating outside the U.S.; acting as a money services business or money transmitter; transferring funds between bank accounts held in the same name; creating an account that is linked to another account that has engaged in any of the foregoing activities. Company may use evidence other than merchant account information to determine whether merchant control an account in someone else’s name, including but not limited to internet protocol addresses, common business names, phone numbers, and mailing addresses; or any activity deemed by Company to be unauthorized, illegal, or criminal;
“Receipt” means a Merchant receipt for Transaction funds;
“Service” means payment processing services of Company and its processor and acquiring bank, the Site, any software, programs, services, documentation, tools, hardware, internet-based services, components thereto provided directly or indirectly to Merchant by Company.
“Site” means www.qira.com or such other site as Company may indicate as being used to supply the Service.
“Third Party Servicer Agreement” means an agreement between Merchant and a Third Party Servicer pursuant to which the Third Party Servicer provides its services;
“Third Party Servicer” means a third party that provides a product or service that Merchant wishes to procure which product or service may or may not be compatible or integrated with the Service;
“Transaction” means an actual or attempted submission of Customer Card Data to Company or Bank in order to acquire funds from the Issuing Bank of the Customer in accordance with the Rules;
“Visa” means Visa U.S.A., Inc., Visa International;
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