PAYMENT APPROVED, LLC
TERMS AND CONDITIONS
Effective as of October 24, 2014
Welcome to Payment Approved, the scalable payment ecosystem owned and operated by Payment Approved, LLC (“PA”, “we”, “our”, or “us”).
THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNS YOUR USE OF THE SITE AND THE SYSTEM VIA THE INTERNET, THE WORLD WIDE WEB, MOBILE NETWORKS, PA KIOSKS, HARDWARE PRODUCTS, OR ANY OTHER COMMUNICATION METHODS NOW KNOWN OR IN THE FUTURE DEVELOPED.
BY ACCESSING EITHER THE SITE OR SYSTEM YOU (“YOU” OR “YOUR”) AGREE TO BE BOUND BY THIS AGREEMENT WHICH GOVERNS YOUR USE OF THE SITE AND THE SYSTEM. IN CONSIDERATION FOR ACCESS AND USE OF EITHER THE SITE OR THE SYSTEM YOU REPRESENT AND WARRANT THAT YOU HAVE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING EITHER THE SITE OR THE SYSTEM, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE AGREEMENT, AND YOU AGREE TO BE BOUND BY THE AGREEMENT. THE AGREEMENT IS A LEGALLY BINDING ELECTRONIC CONTRACT BETWEEN YOU AND PA, AND GOVERNS YOUR ACCESS TO AND USE OF THE SITE AND THE SYSTEM. YOU MUST ACCEPT THIS AGREEMENT TO ACCESS OR USE EITHER THE SITE OR THE SYSTEM. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS HEREIN, DO NOT ACCESS OR OTHERWISE USE THE SITE OR THE SYSTEM.
- Eligibility. The Site and the System are not designed for use by children. By accessing or using either the Site or the System, you represent and warrant that you are legally entitled to enter into the Agreement. If you reside in a jurisdiction which restricts the ability to enter into agreements such as this Agreement due to age, you expressly represent and warrant that you have reached the age of majority in your legal jurisdiction or have the permission of your legal guardian. By accessing and using either the Site or the System, you represent and warrant that: (a) you have the authority and capacity to enter into this Agreement; (b) you have read and understand this Agreement; (c) you agree to abide by this Agreement; (d) you have not been previously suspended or removed from the System; (e) you are not located in a state that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” state; (f) you are not listed on any U.S. Government list of prohibited or restricted parties; (e) you will not use the System to circumvent any U.S. government law or fund any organization which has been listed as a terrorist organization by the U.S. Government; and (f) the information that you provide to us about you in connection with our services will be current, true, accurate, supportable, and complete, and that you will keep such information current and correct.
- “ACH Transactions” means electronic check transactions or their substantial equivalent drawn on the financial account of an individual or entity and made payable to Merchant.
- “Agent” means an individual who is authorized by a Merchant to access and use the System on behalf of the Merchant under this Agreement.
- “Agent Account” means an account that is created by a Merchant for an Agent so that the Agent may access and use the System.
- “Agent Data” means all data regarding an Agent Transaction enabled financial institution associated with Your Bank Account.
- “Agent Profile” means the collection of Agent Data that identifies an Agent on the System.
- “AMEX” means American Express Travel Related Services Company, Inc.
- “Associated Agent” means an Agent who has been authorized by a Merchant to access and use the System on behalf of that Merchant under this Agreement
- “Associate Merchant” means the particular Merchant who has authorized an Agent to access and use the System on behalf of that Merchant.
- “Card” means a magnetic or integrated circuit credit, debit, prepaid, or gift payment card.
- “Card Networks” means AMEX, Discover, MasterCard, and Visa, collectively.
- “Chargeback” means a transaction that is reversed or charged back to you.
- “Customer” means an individual who makes a one-time only or reoccurring Card based transaction or ACH Transaction to a Merchant via the System or makes a cash payment which a Merchant through an Associated Agent keeps track of via the System.
- “Derivative Work” means any work that is based upon any PA Tech, including, but not limited to, an enhancement, modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting work may be recast, transformed, or adapted.
- “Discover” means Discover Financial Services, LLC.
- “ID” means a U.S. state issued identification card, including, but not limited to state issued driver’s licenses, that is associated with a particular Agent by a Merchant that allows that Agent to log into the related Agent Account in order to access and use the System.
- “MasterCard” means MasterCard International, Inc.
- “Merchant” means a business for which PA has created a Merchant Account after receiving and approving a Merchant Account Application
- “Merchant Account” means an account associated with a Merchant that is created by PA so that a Merchant may access and use the System.
- “Merchant Data” means all data shared by Merchant or about Merchant by our processor, our acquiring bank, or a third party with PA via the System, the Merchant’s Merchant Account Application, or elsewise, specifically excluding Transactional Data and Agent Data.
- “Merchant Profile” means the collection of Merchant Data that identifies a Merchant on the System.
- “PA Tech” means the past, present, and future intellectual property comprising both the Site and the System, including, but not limited to, all software, code processes, algorithms, user interfaces, know-how, techniques, organization, designs, text, images, photographs, illustrations, audio or video material, artwork, graphic material, podcasts, advertising copy, databases, proprietary information, all copyrightable or otherwise legally protectable elements of the Site and the System, all other tangible or intangible materials related to, displayed, performed, or distributed on the Site and the System, and the Site and System themselves, including, but not limited to, the selection, sequence, “look and feel”, and arrangement of items on the Site and the System, and all PA trademarks, domain names, patents, and other intellectual property.
- “Share” means upload, submit, post, distribute, disseminate, or otherwise make available.
- “Site” means www.paymentapproved.com, the online presence of PA.
- “System” means PA’s scalable payment ecosystem.
- “Transactional Data” means all data regarding financial transactions for a Merchant Account, including, but not limited to, ACH Transactions, Card based transactions, deposits, and fee charges.
- “Username” means an alphanumeric identifier used to identify a particular Merchant or Agent on the System and log into the related Merchant Account or Agent Account in order to access and use the System.
- “Visa” means Visa, Inc.
- “Visitor” means an individual who accesses or uses the Site, prior to or without becoming a Merchant or Agent.
- “Visitor Data” means personally identifiable information about a Visitor provided by that Visitor to PA, including, but not limited to, any information submitted by a Visitor to initiate the Merchant Account Application process.
- “Your Bank” means the ACH Transaction enabled financial institution that holds Your Bank Account.
- “Your Bank Account” means the account at Your Bank that is associated with your Merchant Account.
- Visitors. PA welcomes Visitors to access and use the Site for the purposes of learning about PA and PA’s services, and contacting PA. Visitors may not access and use the System without becoming either a Merchant or Agent. A Visitor may become a Merchant by clicking the “Sign Up” button on the Site or contacting PA via email or telephone and initiating the Merchant Account Application process. To become an Agent, you must be granted an Agent Account by an Associated Merchant.
- Merchant Accounts
- Merchant Account Application Process. In order to become a Merchant, you must open a Merchant Account. In order to open a Merchant Account, you are required to submit certain personal, business, and financial information to PA (“Merchant Account Application”). All information submitted in the Merchant Account Application must be true, complete, and accurate in order for us to activate your Merchant Account. In your Merchant Account Application, you must use your business’s legal, true, and accurate name; you may not impersonate someone else (e.g. adopt the identity of someone else), create a Merchant Account for any business other than your business, or provide personably identifiable information for anyone other than yourself or that you have a legal right to use. PA will review your Merchant Account Application for veracity and to see if you qualify with PA, our processor, and our acquiring bank. By submitting your Merchant Account Application, you agree that PA may share the information therein with our processor and acquiring bank. After you submit your Merchant Account Application, PA, our processor, or our acquiring bank may conclude that you are ineligible for a Merchant Account and you will not be permitted to access or use the System as a Merchant. By signing up and submitting your Merchant Account Application, you authorize PA to request identity verifying information about you and your business, including a consumer report that contains your personally identifiable information. If you are granted a Merchant Account, you further agree that PA may periodically obtain additional reports to determine whether you continue to meet the requirements for a Merchant Account. You must complete the Merchant Account Application process and other processes required by our processor and acquiring bank to access any funds that you accept through the System. If your Merchant Account Application is approved, PA will create your Merchant Account, will assign you a Username and password that you can utilize to access and use your Merchant Account to access and use the System and avail yourself of our services, and will populate your Merchant Profile using the Merchant Data you or a third party provide us, which you can supplement once you access and use your Merchant Account. As a Merchant and during the Merchant Account Application process, PA may request additional information from you at any time, including, but not limited to, invoices from your suppliers, your ID, your business license, a voided check, previous processing statements, a bank letter, tax returns for the previous year or personal tax returns if not in business for over 1 (one) year, and sample of marketing piece, and PA may also ask for permission to inspect your business location. If you refuse any of these requests during the Merchant Account Application process, you will not be granted a Merchant Account. If you refuse any of these requests as a Merchant, your Merchant Account may be suspended or terminated.
- Your Merchant Account, Merchant Data, Merchant Profile, and Username. You are solely responsible for any and all use of your Merchant Account, Username, and password. You are solely responsible for the confidentiality and security of your Merchant Account, Merchant Profile, Username, and password. As a Merchant, you agree to immediately notify PA of any actual or suspected breach of security or unauthorized use of your Merchant Account, Merchant Data, Merchant Profile, and Transactional Data accessed via your Username. As a Merchant, you represent and warrant that you will keep your Merchant Profile up-to-date.
- Reservation of Rights. We reserve the right to suspend or terminate the Merchant Account of any Merchant who provides inaccurate, untrue, or incomplete information, or who fails to comply with this Agreement or with the requirements of our processor or acquiring bank. PA reserves the right to deny you access to the System at any time without notice for any reason.
- Dormant Merchant Accounts. As a Merchant, If your Transactional Data indicates that you have neither received any ACH Transactions or Card based Transactions, nor used the System to keep track of any cash transactions for at least twelve (12) consecutive months, and you have a balance of funds, we will notify you by sending an email to the email address in your Merchant Profile and give you the option of keeping your Merchant Account open and maintaining said balance or withdrawing said balance. If you do not respond to our notice within thirty (30) days, we will automatically close your Merchant Account and your funds will go to PA or donated to a charity.
- Closing Your Merchant Account. You may terminate your Merchant Account by contacting PA at any time. Any pending transactions will be cancelled. Any funds that we are holding in custody for you at the time of closure, less any applicable fees, will be paid out to you according to the System, assuming all payout-related authentication requirements have been fulfilled. If an investigation by federal, state, or local authorities, PA, any of the Card Networks, or our processor, or acquiring bank is pending at the time you close your Merchant Account, we may hold your funds as described herein
- PA’s Services. Your Merchant Account allows you to use the System to: (a) accept and keep track of one time only and reoccurring Card based transactions and ACH Transactions from your Customers on the System via the Internet, compatible mobile devices, PA kiosks, and PA hardware; (b) keep track of cash based payments from your Customers on the System via the Internet, compatible mobile devices, PA Kiosks, and PA Hardware; (c) create and administer Agent Accounts to allow Associated Agents to access and use the System on your behalf; (d) create, administer, review Customer surveys; (e) create customizable menus via the System for use on compatible mobile devices, PA Kiosks, and PA Hardware; (f) deposit your funds in your account with the bank or other financial institution associated with your Merchant Account (“Your Bank Account”); and (g) view and export your Transactional Data (collectively, the “Services”). The System works with most U.S. issued and most non U.S. issued Cards bearing the trademarks of the Card Networks though we may add or remove Card Networks that the System will accept at any time without prior notice. PA is payment service provider; PA is not a bank and does not offer banking services as defined by the U.S Treasury Department.
- Associated Agents. As a Merchant, you may create Agent Accounts for Associated Agents. By creating an Agent Account for an Associated Agent, you thereby make them your agent and authorize them to access and use the System on your behalf. You represent and warrant that you are responsible for the access and use of the System by any Associated Agents. You also agree to immediately notify PA of any actual or suspected breach of security or unauthorized use of any Associated Agent’s Agent Account, Username, or password or the misuse of the System or any PA Tech by any Associated Agent
- Agent Account. In order to become an Agent, your Associated Merchant must create your Agent Account and add you to the System. Your Agent Account will be associated with certain personally identifiable information provided by you or your Associated Merchant, which is listed in your Agent Profile. By using your Agent Account, you represent and warrant that all of the information in your Agent Profile and that all of your Agent Data is accurate and true.
- Your Agent Account, Merchant Data, Agent Profile, and Username. You are responsible for any and all use of your Agent Account, Username, and password. You are responsible for the confidentiality and security of your Agent Account, Agent Profile, Username, and password. As an Agent, you agree to immediately notify PA of any actual or suspected breach of security or unauthorized use of your Agent Account, Agent Data, Agent Profile, and Transactional Data accessed via your Username.
- Reservation of Rights. We reserve the right to suspend or terminate your Agent Account or to deny you access to the System at any time without notice for any reason.
- Merchant Responsibilities. Merchant shall: (a) ensure and be responsible for all Associated Agents’ compliance with this Agreement; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the System, and notify PA promptly of any such unauthorized access or use; (c) use the System only in accordance with applicable U.S. federal, state, and local laws, rules, and regulations; and (d) bear all responsibility for granting Agent Accounts and access to the System to Associated Agents. Merchant represents and warrants that all Associated Agents will be bound by the terms and conditions of this Agreement and that Merchant shall bear responsibility for all actions of Associated Agents in relation to this Agreement and Associated Agents’ use of the System and any other PA Tech licensed under this Agreement. Merchant shall bear the responsibility for granting such sublicense, access to the System, the granting, administration, and security of Usernames, passwords, and Agent Accounts. Merchant agrees to immediately notify PA of any actual or suspected breach of security or unauthorized use of any Agent Account, Username, or the System.
- Agent Responsibilities. Agent shall: (a) comply with this Agreement and Associated Merchant instructions or guidelines in using the System; (b) use Agent’s best efforts to maintain the security of the System, Agent’s Username and password, and all Transactional Data; (c) not misuse the System or any PA Tech; and (d) immediately notify PA of any actual or suspected breach of security or unauthorized use of any Agent Account, Username, or the System.
- PA Responsibilities. PA shall maintain and manage the System in accordance with industry standards. PA shall use commercially reasonable efforts to make the System available twenty-four hours a day (24 hrs/day), seven days a week (7 days/week), except for: (i) planned downtime, of which PA shall give Merchant reasonable notice, or (ii) any unavailability caused by circumstances beyond PA’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor, internet service provider failures or delays, or denial of service attacks.
- Card Network Rules. The Card Networks require that you comply with all applicable Card Network rules when using the System, which are available at www.americanexpress.com, www.discovercard.com, www.mastercard.com, and www.visa.com and may be amended by the Card Networks on occasion. As a result, PA may occasionally be required to amend this Agreement to be compliant with these rules. The Card Networks currently prohibit you from dispensing cash back to a Customer on any Card based transaction and restrict your ability to assess a surcharge or split a single transaction into multiple transactions except in limited circumstances. These rules also govern your use of the Card Networks’ trademarks.
- Customer Service. Merchant is solely responsible for all customer service issues relating to Merchant’s goods, services, policies, processes, Associated Agents, and Customers, including pricing, order fulfillment, order cancellation by Merchant or a Customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning the aforementioned. In performing customer service, Merchant and Associated Agents will always present Merchant as a separate entity from PA.
- Fees. In exchange for use of and access to the System for Merchant and Associated Agents, Merchant agrees to pay a monthly access fee ONE HUNDRED FORTY NINE U.S DOLLARS per month ($149.00/month) (the “Monthly Fee”). Transactions are charged as follows:
- American Express. Three point six five percent (3.65%) of transaction plus twenty five cents ($.25) per transaction (e.g. 3.65% + $.25), unless specified by a separate written agreement with PA.
- Discover, MasterCard, & Visa. Two point seven percent (2.7%) of transaction plus twenty five cents ($.25) per transaction (e.g. 2.7% + $.25), unless specified by a separate writing with PA.
- Merchant Funds. You authorize us to hold, receive, and disburse funds on your behalf. Your authorization permits us to generate a paper draft or an electronic funds transfer to process each payment transaction that you authorize. Your authorizations will remain in full force and effect until your Merchant Account is closed or terminated. Funds attributed with your Merchant Account will be deposited in Your Bank Account as indicated on the System. In the event that the information regarding Your Bank Account is incorrect and PA is not able to debit or credit Your Bank Account, Your Bank Account will be de-linked from your Merchant Account. Funds for any given transaction will not be deposited in Your Bank Account until the transaction is deemed complete. Transactions will be deemed complete when we have received or sent the funds and when we or Your Bank Account have accepted the transaction or funds. Notwithstanding the foregoing, completed transactions may still be subject to Chargebacks or refunds. At any time we may temporarily suspend or delay payments to you and/or designate an amount of funds that we must maintain in association with your Merchant Account (a “Reserve”) to secure the performance of your payment obligations under this Agreement. We may require a Reserve for any reason, including if you have a high rate of Chargebacks, refunds, or other indications of performance problems related to your use of the System. The Reserve will be in an amount as reasonably determined by us or our processor to cover anticipated Chargebacks, returns, unshipped merchandise and/or unfulfilled products or services or credit risk based on your processing history. The Reserve may be raised, reduced or removed at any time by PA, in its sole discretion, based on your payment history, or a credit review.
- Chargebacks. A “Chargeback” may occur if the transaction: (a) is disputed; (b) is reversed for any reason by the Card Network, our processor, a Customer, or our financial institution; (c) was not authorized or we have any reason to believe that the transaction was not authorized; (d) is allegedly unlawful, reasonably suspicious, or in violation of the terms of this Agreement. For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve for a commercially reasonable period as necessary to rectify the situation. We may debit the amount of any Chargeback and any associated fees and fines assessed by the Card Network, our processor, or our financial institution from your Merchant Account (including without limitation any Reserve, any proceeds due to you, Your Bank Account, or other payment instrument registered with us. If you have pending Chargebacks, we may delay payouts from your Merchant Account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a Customer’s complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which the Customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all Merchant Account deficit balances unpaid by you.
- Taxes. You are responsible for determining any and all taxes and government fees assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with your use of the System, including, but not limited to, applicable sales taxes (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting the correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transactions.
- Fees. In exchange for use of and access to the System for Merchant and Associated Agents, Merchant agrees to pay a monthly access fee ONE HUNDRED FORTY NINE U.S DOLLARS per month ($149.00/month) (the “Monthly Fee”). Transactions are charged as follows:
- Prohibited Activities.
- Merchant. Merchant may only use Merchant’s Merchant Account and the System for business purposes in the United States of America. By accessing and using the System, Merchant thereby expressly represents and warrants that Merchant will not use or attempt to use the System to circumvent any U.S. federal, state, or local law, rule, or regulation. We may decide not to authorize or settle any transaction that you submit to us if we believe that the transaction is in violation of this Agreement or any other PA agreement, or that it exposes you, other Merchants, or our processors to harm. Harm includes fraud and other criminal acts. If we reasonably suspect that your Merchant Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Merchant Account, your Merchant Profile, your Merchant Data, your Associated Agents, your Transactional Data, and any of your transactions with law enforcement.
- Agent. Agent may only use Agent’s Agent Account and the System for business purposes in the United States of America on behalf of and at the behest of an Associated Merchant. By accessing and using the System, Agent thereby expressly represents and warrants that Agent will not use or attempt to use the System to circumvent any U.S. federal, state, or local law, rule, or regulation. If we reasonably suspect that your Agent Account has been used for an unauthorized, illegal, or criminal purpose or you have breached this Agreement in any way, you give us express authorization to share information about you, your Agent Account, your Agent Profile, your Agent Data, and any of your transactions with law enforcement.
- Intellectual Property.
- PA Tech. All PA Tech, including, but not limited to the Site and the System, is owned, controlled, or licensed by PA and is protected by copyright, as a trademark, and/or by other intellectual property rights. You agree that you shall acquire no rights in any PA Tech unless otherwise noted in this Agreement or in writing by PA. You may not copy, reproduce, frame, republish, download, upload, post, transmit, distribute, hyperlink, or exploit the Site, the System, or any PA Tech for commercial use in any way beyond what is permitted by this Agreement without the prior written consent of PA.
- Visitors’ License to Access and Use. PA hereby grants to Visitor a limited, personal, non-exclusive, non-transferable, freely revocable license to access and use the Site for the purposes of informing Visitor about PA and PA’s services. Visitor acknowledges and agrees that with exception to this limited license Visitor has no right to modify, edit, copy, reproduce, create derivative works, or reverse engineer, alter, enhance, or in any way exploit the Site or any PA Tech in any manner unless otherwise noted in writing by PA. This limited license terminates automatically, without notice to Visitor, if Visitor breaches any of the terms and conditions of this Agreement.
- Visitors’ License to Share. PA hereby grants to Visitor a limited, personal, non-exclusive, non-transferable, freely revocable license to access and use the Site to contact PA and Share Visitor’s personally identifiable information with PA in order to initiate the Merchant Account Application process. This limited license terminates automatically, without notice to Visitor, if Visitor breaches any of the terms and conditions of this Agreement.
- Merchant’s License to Share. PA hereby grants Merchant a limited, non-exclusive, non-transferable, freely revocable license to Share Merchant Data, Agent Data, and Transactional Data via the System in accordance with this Agreement, unless otherwise noted in writing by PA. This limited license terminates automatically, without notice to Merchant, if Merchant breaches any of the terms of this Agreement.
- Merchant’s License to Sublicense. PA hereby grants Merchant a limited, nonexclusive, non-transferable, freely revocable license to sublicense access to and use of the System to Associated Agents via Agent Accounts in accordance with this Agreement. Merchant acknowledges and agrees that with exception to this limited license Merchant has no right to modify, edit, copy, reproduce, create derivative works, or reverse engineer, alter, enhance, or in any way exploit the System or any PA Tech in any manner unless otherwise noted in writing by PA. This limited license terminates automatically, without notice to Merchant, if Merchant breaches any of the terms of this Agreement.
- Agent’s License to Access and Use. PA hereby grants Agent a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, freely revocable, personal license to access and use the System to use PA’s services via Agent’s Agent Account on behalf and at the behest of Associated Merchant and subject to the terms and conditions of this Agreement. This sublicense terminates automatically, without notice to Agent, if Agent breaches any of the terms of this Agreement or Merchant revokes Agent’s sublicense.
- Agent’s License to Share. PA hereby grants Agent a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, freely revocable, personal license to Share Agent Data and Transactional Data via the System on behalf and at the behest of Associated Merchant in accordance with this Agreement, unless otherwise noted in writing by PA. This limited license terminates automatically, without notice to Agent, if Agent breaches any of the terms of this Agreement or Associated Merchant revokes Agent’s sublicense.
- Visitor’s License to PA. By initiating the Merchant Account Application process, Visitor thereby grants PA a limited, non-exclusive license to Share all data about you or your business, including, but not limited to, personally identifiable data, Merchant Account Application, whether you are approved or declined, your Merchant Data, your Transactional Data, and other information about you and your Merchant Account, provided to PA as part of the Merchant Account Application process with Your Bank, our processor and acquiring bank, the Card Networks, and certain government and financial institutions as necessary for the purposes of this Agreement or as required by applicable U.S. federal, state, and local laws, rules, and regulations.
- Merchant’s License to PA. By creating a Merchant Account, Merchant thereby grants PA a limited, non-exclusive license to Share Merchant’s Merchant Data, Merchant’s Transactional Data, and other information about Merchant and Merchant’s Merchant Account, with Associated Agents, Your Bank, our processor and acquiring bank, the Card Networks, and certain government and financial institutions as necessary for the purposes of this Agreement or as required by applicable U.S. federal, state, and local laws, rules, and regulations. This includes, but is not limited to, sharing information: (a) about Merchant’s Transactional Data for regulatory or compliance purposes; (b) for use in connection with the management and maintenance of the System and the services we provide to Merchant and Associated Agents; (c) to create and update our processor and acquiring bank’s records about Merchant and to assist them in better serving Merchant; (d) to conduct PA’s risk management process; and (e) for U.S. federal, state, and PA’s internal security purposes.
- Agent’s License to PA. By accessing or using the System, Agent thereby grants PA a limited license to Share Agent’s Agent Data and other information about your Agent Account with Associated Merchant and any other third party as necessary for the purposes of this Agreement or as required by applicable U.S. federal, state, and local laws, rules, and regulations.
- Derivative Work. To the extent that you create any Derivative Work absent an explicit written agreement with PA, such Derivative Work shall be owned by PA and all right, title, and interest in and to each such Derivative Work shall automatically vest in PA and shall be deemed paid in full. PA shall have no obligation to grant you any right in any such Derivative Work
- Reservation of Rights. PA reserves all rights not expressly granted in this Agreement unless otherwise noted in writing by PA.
- Prevention of Unauthorized Use. PA reserves the right to exercise whatever lawful means PA deems necessary to prevent unauthorized use of the Site and the System, including, but not limited to, technological barriers, IP mapping, and directly contacting your internet service provider regarding such unauthorized use.
- Prohibitions. You may not modify, edit, copy, reproduce, create derivative works, or reverse engineer, alter, enhance, use, or exploit the Site and the System for any purposes other than those of this Agreement. You may not take any action that imposes an unreasonable or disproportionately large load on the Site or System’s infrastructure, “scrape” the Site or System, or use any bot, spider, scraper, data miner, or automated agent to access or use the Site or the System or gain access to or use any information on the Site, the System, the System’s API; or attempt to decipher, decompile, disassemble, or reverse engineer the Site, the System, or any PA Tech.
- Unsolicited Suggestions. PA welcomes your feedback, suggestions, and recommendations. By submitting any feedback, suggestions, or recommendations to PA via the Site, the System, or elsewise, you agree that PA may, but shall have no obligation to, use, modify, distribute, copy, and otherwise exploit such feedback, suggestions, or recommendations in any manner, as PA sees fit, without restriction or limitation of any kind, and you thereby grant to PA a paid-in-full, royalty-free, freely transferable, irrevocable, perpetual, worldwide license to do so and to allow others to do so, and agree not to permit or prosecute any action or lawsuit on the ground that PA’s use or alleged use of such feedback, suggestion, or recommendation infringes any of your rights.
- Security. PA maintains the Site and the System in accordance with commercially reasonable industry standards to preserve the integrity and security of all information on the Site and the System. We have implemented technical and organizational measures designed to secure such information from accidental loss and from unauthorized access, use, alteration, or disclosure. We cannot, however, ensure or warrant that third parties will never be able to defeat those measures or gain access to such information. Perfect information security does not exist and you use the Site and the System at your own risk.
- Links to Other Websites or Services. The Site and the System may include links or references to other websites or services (“Linked Sites”). Linked Sites are provided for your convenience and information only. PA does not control the availability and content of Linked Sites. Access and use of Linked Sites, including the information, materials, products, and services on or available through Linked Sites is solely at your own risk. Any concerns regarding Linked Sites, or any information, resources, or services therein, should be directed to that particular Linked Site.
- Changes to the Site and the System. PA may discontinue or change any content, service, function, or feature of the Site or the System at any time with or without notice.
- Change of this Agreement. PA may modify, alter, or otherwise update this Agreement at any time. Such modifications shall be effective immediately upon posting. You are responsible for regularly reviewing this Agreement. Your continued access to or use of the Site and the System constitutes your agreement to all such modifications.
- Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PA DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS WITH REGARDS TO THE SITE AND THE SYSTEM.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND THE SYSTEM IS SOLELY AT YOUR OWN RISK. THE SITE AND THE SYSTEM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
PA DOES NOT WARRANT THAT ANY DATA, CONTENT, FUNCTIONS, OR OTHER INFORMATION OFFERED ON OR THROUGH THE SITE OR THE SYSTEM OR ANY LINKED SITES WILL BE UNINTERRUPTED OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
- Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL PA BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE SITE OR THE SYSTEM OR ANY LINKED SITES, OR ANY OTHER INTERACTIONS WITH PA, EVEN IF PA OR AN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
PA shall not be liable for failure to provide the services under this agreement if such failure is due to any cause or condition beyond PA’s reasonable control. Such causes or conditions shall include, but not limited to, acts of God or of the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, shortages of labor or materials, freight embargoes, unusually severe weather, breakdowns, operational failures, electrical power failures, communication failures, unavoidable delays, the errors or failures of third party systems, or other similar causes beyond PA’s control.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
IF YOU ARE A CALIFORNIA RESIDENT YOU AGREE TO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
- Indemnification. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD PA HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, ACTIONS, LIABILITIES, COSTS, LOSSES, EXPENSES, TAX ASSESSMENTS, PENALTIES, INTEREST, AND DAMAGES, INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES, WHICH MAY HEREAFTER ARISE, WHICH PA MAY SUSTAIN DUE TO OR ARISING OUT OF ANY CLAIM, ACTION, AUDIT, INVESTIGATION, INQUIRY, OR OTHER PROCEEDING INSTITUTED BY A PERSON OR ENTITY THAT ARISES OUT OF OR RELATES TO ANY ACTUAL OR ALLEGED BREACH OF ANY REPRESENTATION, WARRANTY, OR OBLIGATIONS MADE HEREIN, YOUR BREACH OF THIS AGREEMENT, YOUR NEGLIGENT ACT OR OMISSION, ANY TRANSACTION SUBMITTED BY YOU THROUGH THE SYSTEM, AND DATA SHARED BY YOU THROUGH THE SYSTEM, YOUR VIOLATION OF ANY U.S. FEDERAL, STATE, OR LOCAL LAW, RULE, OR REGULATION, ANY THIRD PARTY’S ACCESS OR USE OF THE SYSTEM VIA YOUR USERNAME, PASSWORD, OR ID, OR YOUR ACTS IN VIOLATION OF THIS AGREEMENT OR IN VIOLATION OF ANY APPLICABLE LAW OR REGULATION, YOUR CONTENT, YOUR ACCESS OR USE OF THE SITE OR THE SYSTEM, OR CAUSED OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY, BY YOUR USE OF THE SITE OR THE SYSTEM. MERCHANT HEREBY AGREES TO INDEMNIFY, DEFEND, AND HOLD PA HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, ACTIONS, LIABILITIES, LOSSES, EXPENSES, OR DAMAGES, INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES, WHICH MAY HEREAFTER ARISE, WHICH PA MAY SUSTAIN DUE TO OR ARISING OUT OF ANY ACTION BY ASSOCIATED AGENTS OR ANY CUSTOMER TRANSACTION. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD PA HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS
- Equitable Relief. You acknowledge that the protections in this Agreement are directly related to PA’s goodwill and vital business interests and that a breach of this Agreement would cause PA significant and irreparable injury, the degree of which may be difficult to ascertain and for which monetary damages may not provide adequate compensation. Accordingly, in addition to any other remedy, PA will be entitled to seek immediate injunctive relief against such breach or threatened breach in any court of competent jurisdiction, without proving actual damage or posting a bond or other security.
- Law and Venue. You agree that that any action at law or in equity arising out of or relating to this Agreement, the Site, the System, PA, or any PA Tech, and all suits and special proceedings relating to this Agreement, the Site, the System, PA, or any PA Tech, shall be construed in accordance with and under and pursuant to the laws of the State of Texas, without giving effect to any principles of conflicts of law. You further agree that any action at law or in equity arising out of or relating to this Agreement, the Site, the System, PA, or any PA Tech and all suits and special proceedings relating to this Agreement, the Site, the System, PA, or any PA Tech will be filed only in the Austin Division of the Western District of Texas or the state courts in and for Austin, Travis County, Texas, and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action and expressly submit to extraterritorial service of process.
- Dispute Resolution. You agree that you will first try to resolve any controversy, claim, or dispute arising out of or relating to this Agreement, the Site, the System, PA, or any PA Tech, with the help of a mutually agreed upon mediator in Austin, Texas. You further agree that you will pay any costs and fees associated with the mediation, provided, however, each party will be responsible for paying their own respective attorney fees associated with the mediation.
- Attorney Fees. In the event that PA must initiate proceedings in connection with or for the enforcement of this Agreement, PA shall be entitled to recover its cost of suit, including reasonable attorneys’ fees, both at trial and appellate level.
- Survivorship of Benefits. This Agreement shall be binding on and inure to the benefit of the respective parties and their executors, administrators, heirs, personal representatives, successors, and assigns.
- International Use. PA makes no representation that the System is appropriate or available for use in locations outside the United States. If you choose to access or use the System from a location outside the U.S., you do so on your own initiative and you are responsible for compliance with local laws.
- Waiver of Modification of Agreement.
- A waiver or modification of this Agreement or of any covenant, condition, or limitation in this Agreement shall not be valid unless in writing, and evidence of any waiver or modification shall not be offered into or received in evidence in any proceeding, arbitration, or litigation between the parties arising out of or affecting this Agreement, or the right or obligations of any party under this Agreement, unless the waiver or modification is in writing.
- The parties further agree that the provisions of this section may not be waived except as set forth in this Agreement.
- The failure of PA to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
- Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any of the terms of this Agreement invalid or otherwise unenforceable in any respect. In the event that any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from this Agreement to the minimum extent necessary and will not affect the validity and enforceability of any remaining terms herein.
- Assignment. Your rights and licenses under this Agreement may not be transferred or assigned by you, but may be assigned by PA without restriction. Any assignment attempted to be made in violation of the terms of this Agreement shall be null and void ab initio.
- Headings. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and will not be deemed to limit or affect any of the provisions hereof.
- Relationship. This Agreement creates no agency, partnership, joint venture, or employee-employer relationship between you and PA unless otherwise noted herein or elsewhere in writing by PA.
- Notices. All notices, requests, demands, consents, permissions, and other communications hereunder shall be in writing and shall be deemed received: (a) if by email, when transmitted to the email address to the following and confirmation of delivery or receipt is received; or (b) if by overnight courier service or registered or certified mail or personal delivery, when received; provided that if the date of receipt hereunder is not a business day in the place of receipt, the notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt to the following:
- If to PA:
Payment Approved, LLC
Attn: Legal Department
823 Congress Avenue, Suite P5
Austin, TX 78701
Subject Line: Legal Notice
- If to Merchant: to the address or email address set forth in Merchant’s Profile.
- If to Agent: to the individual and address or email address set forth in Agent’s Profile.
- If to PA: