TERMS AND CONDITIONS
TERMS AND CONDITIONS OF USE AGREEMENT
This Terms and Conditions of Use Agreement (“Agreement”) constitutes a legally binding agreement made between you, whether personally as an agent, employee or authorized user of a business entity (including sole proprietors (“Client”), (collectively with Client also includes “you,” or “your,” which encompasses any authorized user under your account who the parties agree is an express third-party beneficiary and similarly obligated to these terms and conditions) and Preferred Merchant Services, LLC dba Preferred Payments, and third parties as set forth herein (collectively “We,” or “Preferred”), concerning your access to and use of the Preferred web-based platform available via Preferred’s website online at https://www.preferredpayments.com or https://dashboard.ecrypt.com (collectively the “Website”) or, alternatively, the domain you use to access the Ecrypt gateway platform.
a) The Website provides a platform referred to as “Ecrypt” for Preferred’s business customers to use Preferred’s and third parties’ (such as Ecrypt) services, products, and solutions for businesses, including without limit, any software, data, reports, performance model, advertising, social media, electronic payment processing, transaction monitoring, or other information or programs accessed, downloaded or created through use of the Website include updates and additional features (the “Services”). Preferred offers through Ecrypt the ability for you to integrate the Services into your platform (“Platform”). This Connect Platform Agreement (“Connect Platform Agreement”) is an agreement between the legal entity (including sole proprietors) that you identified on the registration page (“you”) and Preferred. The Services provided through Ecrypt, whether or not, fees are charged, are subject to the same Terms and Conditions outlined throughout this Agreement. The Services are hosted in the United States. This Agreement governs your use of the Services and is also governed and expressly incorporates by reference herein the following agreements:
• (if applicable) the Merchant Agreement between Client and Preferred, a copy of which is available upon any written request from Client; and
• (if selected by Client) the Preferred ACH Origination Agreement, a copy of which is available upon any written request from Client (collectively referred to herein as the “Operative Agreements”).
By using the Website, Ecrypt, setting up a subscription, and/or purchasing or using the Services, you signify your acceptance of this Agreement, and any amendments or updates hereto.
Preferred has the right to revise this Agreement, at any time by posting the revised Agreement on the Website without any further notice. All changes are effective immediately when Preferred posts them to the Website. Your continued use of the Website or the Services after any changes to this Agreement have been posted, shall be deemed your unconditional acceptance of those revisions.
1) User Representations and Warranties.
a) Eligibility. By using the Services, including Ecrypt, you represent and warrant that: (i) all information you submit or input is truthful and accurate; (ii) you will maintain the accuracy of such information; (iii) if you are under 18, you are 13 years of age or older and the Client is your parent or legal guardian; (iv) your use of the Services does not violate any applicable law, regulation, rule, standard, or guideline that governs such use, including without limit all applicable federal, state, local, municipal, or governmental regulations and laws, and applicable industry standards (collectively, “Laws and Rules,”); (v) you are authorized to enter this Agreement; (vi) you are an authorized user of the business entity contracted, whether or not a Client, with Preferred to use the Services; (vii) you will comply with the Fair Credit Reporting Act, 15 U.S.C. § 1681 et. seq. (“FCRA”), as amended by the Fair and Accurate Credit Transactions Act of 2003 (“FACTA”) and thereafter from time to time, the Americans with Disabilities Act (“ADA”) and other applicable equal opportunity laws, the Gramm-Leach-Bliley Act of 1999, 15 U.S.C. § 6801 et. seq. (“GLBA”), the Driver’s Privacy Protection Act of 1994, 18 U.S.C. § 2721(b)(3) (“DPPA”), the laws of the applicable state issuing Motor Vehicle Records (“MVR”), the Equal Credit Opportunity Act (“ECOA”), the Truth In Lending Act (“TILA”) and all other applicable Laws and Rules, as well as the permissions and limitations of Preferred.
b) Requests for Changes. You expressly agree that for any requests made by you, which includes without limit, updates or changes to a merchant account, other deposit account, address, email, bank account, phone number, such requests are done by a user that is a duly authorized representative of the Client and that the individual making the request has the authority to do so and authorizes the request is correct. Further Client, the signor, and the requestor, which are either parties to this Agreement or are expressly acknowledged as third-party beneficiaries or obligors, hereby agree to indemnify, defend, and hold harmless, Preferred and any third party that provides the Services, including without limit the Bank and Ecrypt as defined in any applicable Merchant Agreement with respect to the request(s).
c) Account Approval and Underwriting. At any time during the term of this Agreement and your use of the Services, we may require additional information from you to verify beneficial ownership or control of Client, validate information you provided, verify your identity, and assess the risk associated with your business. This additional information may include business invoices, copies of government-issued identification, business licenses, or other information related to your business, your beneficial owners or principals, financial statements or records pertaining to your compliance with this Agreement or require you to provide a personal or corporate guarantee. Your failure to provide this information or material may result in suspension or termination of your access to the Services.
d) Account Agreement. This Agreement contains terms and conditions relating to your use of the Services of Ecrypt. The Account Agreement (“Account Agreement”) describes how you and your third-party platform provider(s) may use the Website to enable you to use Preferred’s Services, which includes the ability to accept payments for goods or services, as well as other related services.
(i) Recipient Information. Preferred provides Services with the ability to facilitate payments to vendors who have provided goods or services to their customers. Preferred will facilitate the transfer of funds to you based on instructions given to Preferred by the Platform. As part of Services, Preferred may separately offer you the ability to access an information portal managed by Preferred in order for you to see the status of payments. The portal terms apply to you when you access the portal.
(ii) Term, Termination, and the Effects of Termination. The term of this Section will begin when you register your Preferred Account and will end when terminated by you or by Preferred. You may terminate this Account Agreement at any time by providing notice to Preferred and immediately ceasing your use of the Platform, Website or Services. However, if you commence using the Platform, Website or Services, you are consenting to this Account Agreement. Preferred may terminate this Account Agreement (a) where you are in breach of this Account Agreement and fail to cure the breach upon 30 days’ notice by Preferred (such notice and cure period only being required if curing the breach is feasible); or (b) upon 60 days’ notice for any reason. Preferred may also terminate this Account Agreement immediately if you are the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding, or if Preferred determines that you are engaged in activity that fails to comply with applicable law or causes a significant risk of reputational harm to Preferred.
e) Client Responsibilities. You expressly represent and acknowledge that the Services cannot replace your duties to manage and monitor Client’s business, and that the Services are provided “as-is,” without any warranty as to fitness, merchantability, or otherwise, as set forth further below, and that Client is solely responsible to ensure that its business needs are met and that Preferred will not be responsible for any failures related to the Services, including without limit errors, inaccuracies, failures, delays, bugs, inconsistencies, or any other issues related to electronic payment processing transactions and/or monitoring and any losses, damages, fees, fines, or penalties related to your use of the Services. You agree to provide Preferred notice of any and all updates related to your and/or Client’s use of the Services, including without limit, any suspicious activity that may result in losses to you, Client, or Preferred, any change in Client’s business or change related to any of Client’s customers, and any potential breach of this Agreement. Your agreement with your users (“User Agreement”) must give you clear authorization to perform the Services provided by Ecrypt, and to communicate the data to Preferred if requested.
f) Management of Use. Client shall solely be responsible for the management of, security, and access to the Website and use of the Services, and shall safeguard and maintain confidential login information, including user IDs, passwords, and other secure identification mechanisms, whether provided or created through direct user account creation, email, or instructions provided to administrators, sales agents, and customer service representatives. Client shall not disclose or share its login information with any other person. In addition, Client shall be responsible for all user activity within the Website related to Client’s use of the Services.
g) User Contributions. You are entirely responsible for the content of, and any harm resulting from, any content you upload to the Website, or of which Preferred collects from you (collectively, “Contribution”). When you create, upload or make available a Contribution, you thereby represent and warrant that: (i) the creation, distribution, transmission, public display and performance, accessing, downloading and copying of your Contribution does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, publicity or trade secret rights of any third party; (ii) you have fully complied with any third-party licenses relating to your Contribution, and have done all things necessary to successfully pass through to viewers any required terms; (iii) your Contribution does not contain any viruses, worms, Trojan horses, malicious code or other harmful or destructive content; (iv) your Contribution is not obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, libelous or slanderous, does not advocate the violent overthrow of the government of the United States, does not incite, encourage or threaten immediate physical harm against another, does not violate any applicable law, regulation, or rule, and does not violate the privacy or publicity rights of any third party; (v) your Contribution does not contain material that solicits personal information from anyone under 18 or exploits people under the age of 18 in a sexual or violent manner, and does not violate any federal or state law concerning child pornography or otherwise intended to protect the health or wellbeing of minors; (vi) if your employer has rights to intellectual property that is part and parcel to your Contribution, you have either (a) received permission from your employer to make available the Contribution, or (b) secured from your employer a waiver as to all rights in or to your Contribution; (vii) your Contribution does not violate any state or federal law designed to regulate electronic advertising; (viii) your Contribution does not amount to trolling, or the making of controversial statements for the sole purpose of generating responses by others; (ix) your Contribution does not constitute, contain, install or attempt to install or promote spyware, malware or other computer code, whether on Preferred’s or others computers or equipment, designed to enable you or others to gather information about or monitor the online or other activities of another party; (x) your Contribution does not inundate the Website or Ecrypt with communications or other traffic suggesting no serious intent to use the Website for its stated purpose; (xi) your Contribution does not otherwise violate, or link to material that violates, any provision of this Agreement or any applicable law or regulation; (xii) your Contribution is accurate and true to the best of your knowledge; (xiii) you expressly authorize Preferred to use your Contribution for any purpose including improving the Services to you and third parties; and (xiv) your Contribution does not contain pictures, data, audio or visual files, or any other content that is excessive in size, as determined by Preferred in its sole discretion.
h) Prohibited Activities. You may not access or use, or allow others to access or use, the Website for illegal transactions, personal, family or household purposes, nor any purpose other than that for which Preferred makes it available. Certain activities, even if legal, may violate the common rules of etiquette governing Contributions, as determined by Preferred in its sole discretion. Prohibited activity includes, without limit (i) criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, copyright infringement, patent infringement, or theft of trade secrets; (ii) advertising to, or solicitation of, any user to buy or sell any products or services; (iii) transmitting chain letters or junk email to other users; (iv) using any information obtained from the Website including Ecrypt in order to contact, advertise to, solicit, or sell to any user without their prior explicit consent; (v) engaging in any automated use of the system, such as using scripts to add friends or send comments or messages; (vi) interfering with, disrupting, or creating an undue burden on the Website, Ecrypt or the networks or services connected to the Website; (vii) attempting to impersonate another user or person; (viii) using the username of another user; (ix) selling or otherwise transferring your profile; (x) using any information obtained from the Website in order to harass, abuse, or harm another person; (xi) displaying an advertisement, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through the Website or Ecrypt on behalf of that person, such as posting blogs or bulletins with a commercial purpose; (xii) using the Website or Ecrypt in a manner inconsistent with any and all applicable laws and regulations; (xiii) any access or attempt to access non-public Preferred or its vendors’ systems, programs, data, or services; (xiv) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the Services, or any documentation, or the Website except as expressly permitted by applicable laws and regulations; (xv) act as service bureau or pass-through agent for the Services with no added value; (xvi) transfer any rights granted to you under this Agreement; (xvii) work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited; (xviii) reverse engineer or attempt to reverse engineer the Services except as expressly permitted by Laws and Rules; (xix) perform or attempt to perform any actions that would interfere with the normal operation of the Services or affect use of the Services by our other users; or (xx) impose an unreasonable or disproportionately large load on the Services.
i) Other Prohibited Activities. Offering, using, or permitting the use of the Services in any way related to any Prohibited Activities or businesses, including but not limited to: (i) illegal gaming and gambling, (ii) illegal firearms, (iii) illegal pharmaceuticals and related goods, (iv) illegal adult-related content and/or products, (v) any products and/or services that do not comply with any local, state, and/or federal laws, rules, or regulations, the enforcement policy of any governmental or entity that governs the performance hereunder, including the policies, rules, or guidelines of the credit card brands, including without limit, Visa, MasterCard, and Discover, and any Bank, financial institution or payment processor.
j) Third Party Providers. Preferred uses various third-party providers and offers their services with and through the Services (the “TPP Services.”) By using the Services, including purchasing/using any of the TPP Services, you expressly agree to the terms and conditions thereof which are expressly incorporated by reference in this Agreement.
2) Intellectual Property.
a) Intellectual Property Ownership. Except for Contributions that are expressly owned by third parties, but including all other Contribution including data collected by Preferred such as transaction and ACH data, the content on the Website and Ecrypt, including without limitation, editorial or other content original to the Website including Ecrypt (“Materials”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Preferred or its third-party vendors, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions.
b) Use of Intellectual Property. The Services, the Website and Ecrypt are provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, reverse engineered, or otherwise exploited for any other purposes whatsoever without the prior written consent of Preferred and/or third parties. Preferred reserves all rights not expressly granted in and to the Website and the Materials. You agree to not engage in the use, copying, or distribution of any of the Materials other than expressly permitted by Preferred, including any use, copying, or distribution of third parties’ materials obtained through the Website or Ecrypt for any commercial purposes. If you download or print a copy of the Materials for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable, or otherwise interfere with security related features of the Website or features that prevent or restrict use or copying of any Materials or enforce limitations on use of the Website or the Materials therein.
c) Improvements. You may suggest or provide to Preferred certain improvements, concepts, ideas, knowledge, techniques, software (including, without limitation, programs), program listings and programming tools and documentation (including, without limitation, manuals), techniques, reports and drawings developed or owned by you (collectively “Improvements,”) to improve the Website or Services. You expressly agree that by supplying any Improvement to Preferred, you agree that Preferred may use the Improvements in any manner and that you waive any claim to ownership should Preferred use or implement the Improvement on the Website, Ecrypt or otherwise, and that you shall have no interest in or to that property as used by Preferred.
d) Data Sharing, Use, and Sale. We will not collect, store, use, or sell any of your Biometric, Geo-Location data, or other data without your express consent. Provided that you have given your express and informed consent, we may also share your data with third parties, including any provider of any of the Services, for the purpose of facilitating the compliance with Laws and Rules, improving the Services, or complying with any provider’s requests. Further, Preferred may sell your data to third parties. At any time, you may request information related to what data is collected and used or otherwise sold, and the identities of such third parties that use or gain access to your data from Preferred. It is your responsibility to protect cardholder data you store, process, or transmit on behalf of your customer.
Our automated systems analyze your Content, processing history, and other interactions with the Services including Ecrypt to provide you with the Services, improve the Services, and offer relevant products, services, and features, such as customized search results, and tailored advertising. This analysis occurs as your data is sent, received, and when it is stored.
e) Data Retention and Disposal. Preferred maintains specific procedures for the retention and disposal of information to ensure Preferred’s consistent method therefor and to fully document any actions taken. All internal policies regarding data retention and disposal will be reviewed annually. You expressly represent and acknowledge to institute requirements regarding data retention that are equal to or greater than our policy stated in this Section.
f) Maintenance of Records. Records are kept for as long as they are needed to meet the operational needs of Preferred, together with legal and regulatory requirements. Preferred regularly reviews Records to determine whether they should be destroyed or retained.
g) Retention Rules. Preferred’s data protection team defines the time period for which Records should be retained through the Data Retention Schedule. As an exemption, Preferred’s retention of Records may be prolonged in cases such as (i) ongoing investigations from authorities, if there are Records that are needed by Preferred to prove compliance with any legal requirements; or (ii) when exercising legal rights in cases of lawsuits or similar court proceeding recognized under local law.
i) Document Disposal. Records which may be routinely destroyed unless subject to an on-going legal or regulatory inquiry are as follows: (i) transmission documents such as letters, fax cover sheets, email messages, routing slips, compliments slips and related items that accompany documents but do not add any value; (ii) message slips; and (iii) superseded address lists and/or distribution lists.
j) Destruction Method. Level I documents are those that contain information that is of the highest security and confidentiality and those that include any personal data (“Level I). These documents shall be disposed of as confidential waste (crosscut shredded and incinerated) and shall be subject to secure electronic deletion. Disposal of the documents should include proof of destruction. Level II documents are proprietary documents that contain confidential information such as parties’ names, signatures, and addresses, or which could be used by third parties to commit fraud, but which do not contain any personal data (“Level II). The documents should be cross-cut shredded and then placed into locked rubbish bins for collection by an approved disposal firm, and electronic documents will be subject to secure electronic deletion.
3) Preferred’s Right to Manage the Website and Terminate Users.
a) Preferred Website Management. Preferred reserves the right but does not have the obligation to: (i) monitor the Website for violations of this Agreement; (ii) take appropriate legal action against anyone who, in Preferred’s sole discretion, violates this Agreement, including without limitation, reporting you to law enforcement authorities, Card Brands, or other entities or organizations; (iii) in Preferred’s sole discretion and without limitation, refuse, restrict access to or availability of, or disable (to the extent technologically feasible) any feature or any portion of the Services that may violate this Agreement, Laws and Rules, or any Preferred policy; (iv) in Preferred’s sole discretion and without limitation, notice or liability to remove from the Website including Ecrypt or otherwise disable all files and Content that are excessive in size or are in any way burdensome to Preferred’s systems; (v) terminate any authorized user, or your access to the Website, Ecrypt or Services; and (vi) to otherwise manage the Website and Ecrypt in a manner designed to comply with Laws and Rules, protect the rights and property of Preferred and others and to facilitate the proper functioning of the Website.
b) Preferred’s Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, PREFERRED RESERVES THE RIGHT TO, IN ITS SOLE AND ABSOLUTE DISCRETION, AND WITHOUT NOTICE OR LIABILITY DENY ACCESS TO AND USE OF THE WEBSITE OR ECRYPT TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAWS OR RULES.
4) Data Security. Preferred has implemented and maintains reasonable security measures to protect data from unauthorized access, acquisition, destruction, use, modification, or disclosure. Additionally, Preferred requires that all of its partners or affiliates that may have access to your data have agreed to implement and maintain reasonable security measures to similarly keep any data shared by Preferred confidential. Further, should any potential or actual breach occur, Preferred has a dedicated team to respond to such breach and will keep you informed as necessary to maintain your privacy.
5) Warranties. THE SERVICES AND ANY ITEMS PURCHASED THROUGH THE SERVICES ARE BROUGHT TO YOU “AS IS” AND “WITH ALL FAULTS.” NEITHER PREFERRED NOR ANY THIRD PARTIES THAT SELL OR PROVIDE THE SERVICES MAKES ANY WARRANTIES OR PROMISES ABOUT THE SERVICES OR ANY PRODUCT OR EQUIPMENT PURCHASED OR USED THEREUNDER INCLUDING ECRYPT. FOR EXAMPLE, PREFERRED MAKES NO PROMISES OR COMMITMENTS ABOUT THE FUNCTIONALITY OF THE ITEMS, OR THEIR QUALITY, DURABILITY, SAFETY, RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, PREFERRED EXCLUDES ALL WARRANTIES AND ALSO DISCLAIMS AND EXCLUDES ALL REMEDIES, DAMAGES OR FINANCIAL LOSSES INCLUDING REPAIR AND REPLACEMENT REMEDIES, DIMINUTION IN ITEM VALUE, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
6) Term. This Agreement shall remain in full force and effect while you use the Services or are a user. You may terminate your use or participation at any time, for any reason, by following the instructions on the Website or Ecrypt. Preferred may terminate your use or participation at any time, without warning. Even after your use and participation is terminated, this Agreement will remain in effect, including all sections and obligations that reasonably survive termination.
7) Copyright Policy. Preferred will terminate the Ecrypt account and access rights of any repeat infringer. If you are a copyright owner or the legal agent of a copyright owner, and you believe that any user submission or content on the Website or Ecrypt infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) Notice (http://automattic.com/dmca)
8) Modifications. Preferred may modify this Agreement from time to time with or without notice to you and/or Client. Preferred will alert all of Client’s authorized users of such changes by posting those changes on the Website and/or Ecrypt. You agree to be bound to any changes to this Agreement when you use the Services after any such modification is posted. It is therefore important that you regularly review this Agreement to ensure you are informed of any changes.
9) Disputes Between Users. You are solely responsible for your conduct while using the Services. Preferred reserves the right, but has no obligation, to monitor disputes between you and other authorized users, if applicable.
10) Notice and Communications. You expressly authorize Preferred to contact you, your business, and anyone with access to the communication methods provided to Client under our preexisting relationship to offer promotions, special offers, marketing material, and/or information regarding my account, via text, email, telephone, and or fax, in order to facilitate your use of the Services. You expressly authorize Preferred to call/text/email you regarding your performance hereunder and to offer you additional products and services. Your consent hereunder supersedes any request to not be contacted, such as your prior or subsequent registry on Do Not Call Lists and survives for the term hereof and beyond until you expressly request that Preferred cease contact with you.
Electronic communications will be deemed received by you when Preferred sends the electronic communication to the email address associated with your Ecrypt Account. For those communications or records that Preferred is otherwise required by law to provide to you in writing, you agree that Preferred may provide those communications or records by means of electronic communications. The following additional terms will apply to such electronic communications: (i) you may request a paper copy of such an electronic communication, and (ii) Preferred reserves the right to charge a fee to provide such paper copy.
In addition to the electronic communications authorized under this section, statements, notices, and other communications to you may be made by mail, e-mail, or other reasonable means. Preferred may also provide notices of changes to these terms or other matters by displaying links to notices on the Website.
Preferred will not charge you for text/SMS messages. However, you may see usage charges from your service provider depending on the type of data/rate plan you are currently on. You expressly agree to indemnify, defend, and hold harmless Preferred related to any charges, service interruptions, and/or other issues related to Preferred sending text messages and other communications to the contact information provided by you to Preferred.
11) Binding Arbitration. ANY DISPUTE OR CLAIM BETWEEN THE PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE FULLY AND FINALLY RESOLVED BY BINDING ARBITRATION IN LOS ANGELES COUNTY CALIFORNIA IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES AND PRACTICES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) FROM TIME TO TIME IN FORCE AND EFFECT. THIS AGREEMENT TO ARBITRATE SHALL BE SPECIFICALLY ENFORCEABLE AND IS THE EXCLUSIVE REMEDY FOR THE RESOLUTION OF SUCH DISPUTES UNDER THIS AGREEMENT. THERE SHALL BE A SINGLE ARBITRATOR, WHO MUST BE (I) A LAWYER ENGAGED FULL-TIME IN THE PRACTICE OF LAW AND A MEMBER IN GOOD STANDING OF THE STATE BAR OF CALIFORNIA AND (II) ON THE AAA REGISTER OF ARBITRATORS. WITHIN THIRTY (30) DAYS OF THE CONCLUSION OF THE ARBITRATION HEARING, THE ARBITRATOR SHALL PREPARE WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW. JUDGMENT ON THE WRITTEN AWARD MAY BE ENTERED AND ENFORCED IN ANY STATE OR FEDERAL COURT LOCATED IN LOS ANGELES COUNTY CALIFORNIA. THE PARTIES HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE TRIBUNAL SO SELECTED, TO THE EXCLUSION OF ANY OTHER COURT WHICH MIGHT HAVE HAD JURISDICTION APART FROM THIS SECTION, WAIVE ANY DEFENSE OF LACK OF IN PERSONAM JURISDICTION OF SUCH COURTS AND AGREE THAT SERVICE OF PROCESS IN ANY ACTION BEFORE SUCH COURTS MAY BE MADE BY MAILING IT TO THE PARTY TO BE SERVED AT THE ADDRESS PROVIDED HEREIN. IT IS MUTUALLY AGREED THAT THE WRITTEN DECISION OF THE ARBITRATOR SHALL BE VALID, BINDING, FINAL AND NON-APPEALABLE; PROVIDED HOWEVER, THAT THE PARTIES HERETO AGREE THAT THE ARBITRATOR SHALL NOT HAVE THE AUTHORITY TO AWARD PUNITIVE DAMAGES AGAINST ANY PARTY TO SUCH ARBITRATION. THE ARBITRATOR SHALL REQUIRE THE NON-PREVAILING PARTY TO PAY THE ARBITRATOR’S FULL FEES AND EXPENSES OR, IF IN THE ARBITRATOR’S OPINION THERE IS NO PREVAILING PARTY, THE ARBITRATOR’S FEES AND EXPENSES WILL BE BORNE EQUALLY BY THE PARTIES THERETO. EACH OF THE PARTIES HERETO FURTHER AGREES THAT IT WILL NOT BECOME A MEMBER OF ANY CLASS-WIDE LITIGATION OR ARBITRATION AND WILL NOT INITIATE ANY CLASS ACTION LITIGATION OR ARBITRATION AGAINST THE OTHER PARTY. FURTHER THE PARTIES AGREE THAT THEY WILL NOT ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OF ANY GROUP, CLASS, OR OTHERWISE SIMILARLY SITUATED INDIVIDUAL OR ENTITY.
12) Disclaimers. Preferred cannot control the nature of much of the Services available on the Website and/or Ecrypt. By operating the Website and/or Ecrypt, Preferred does not represent or imply that Preferred endorses any content, Contributions, or other content available on or linked to by the Website, including without limitation content hosted on third party websites, or that Preferred believes such services or content to be accurate, useful, or non-harmful.
YOU AGREE THAT YOUR USE OF THE WEBSITE WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, PREFERRED, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF. PREFERRED MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES, THE WEBSITE’S AND/OR ECRYPT’S CONTENT, OR THE CONTENT OF ANY SERVICES OR WEBSITES LINKED TO THIS WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF THE SERVICES, CONTENT, REPORTS, AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITE OR SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE OR SERVICES, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES OR WEBSITE BY EXCLUSIVE OR ANY THIRD PARTY, (F) CLIENT’S INTERNAL DATA SECURITY, AND/OR (G) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE AND/OR ECRYPT. PREFERRED DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED THROUGH THE WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND PREFERRED WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. PREFERRED SPECIFICALLY DISCLAIMS ALL WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
13) Limitation on Liability. IN NO EVENT SHALL PREFERRED BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SERVICES, THE WEBSITE AND/OR ECRYPT, EVEN IF PREFERRED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, PREFERRED’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO AN AGGREGATE AMOUNT OF $10,000.
14) Indemnity. To the extent permitted by applicable Laws and Rules, you agree to defend, indemnify and hold Preferred, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Website, Ecrypt or the Services in violation of Laws and Rules, this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above and/or if any use of the Services, the Website and/or Ecrypt, or if the Website, Ecrypt or Services causes Preferred to be liable to another.
15) Other. This Agreement, including all third-party agreements constitute the entire agreement between you and Preferred regarding the use of the Website, Ecrypt, and the Services. The failure of Preferred to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. If any provision or part of a provision of this Agreement is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
16) Notices and Contact; Consent to Electronic Disclosures and Notices. Preferred’s corporate headquarters is located at 4580 Thousand Oaks Blvd, Westlake Village, CA 91362, and all notices may be mailed there to Attn: Legal Department. In addition, you and Client shall use its best efforts to send all notices to Preferred via email with receipt acknowledged to [email protected]. All notices to you and/or Client shall be made as stated below. You expressly agree that Preferred shall not be responsible for any failure by you to review notices from Preferred.
By registering to use the Services, the Website and/or Ecrypt, you agree that such registration constitutes your electronic signature, and you consent to electronic provision of all disclosures and notices from Preferred related to your and Client’s use of the Services, the Website and/or Ecrypt (“Notices”), including those required by Laws and Rules. You also agree that your electronic consent will have the same legal effect as a physical signature.
You agree that Preferred can provide Notices regarding the Services to you through the Website and/or Ecrypt, or by mailing Notices to the email or physical addresses identified in your Preferred or Ecrypt account. Notices may include notifications about your use of the Services, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within 24 hours of the time a Notice is either posted through the Website or emailed to you.
You further authorize us to provide Notices to you via text message to allow us to verify your or Client’s control over your account (such as through two-step verification), and to provide you with other critical information. Standard text or data charges may apply to such Notices. Where offered, you may disable text message notifications through the Website by responding to any such message with “STOP,” or by following instructions provided in the message. However, by disabling text messaging, you may be disabling important security controls to your access to the Website, Ecrypt, and/or the Services, and may increase the risk of loss to your business.
You will need a computer or mobile device, Internet connectivity, and an updated browser to access the Website, Ecrypt, and/or the Services, and review the Notices provided to you thereon. If you are having problems viewing or accessing any Notices, please contact us and we can find another means of delivery. Due to the nature of the Services, you will not be able to begin using the Services without agreeing to electronic delivery of Notices. However, you may choose to withdraw your consent to receive Notices electronically by terminating your access to the Website or use of the Services.
17) Electronic Signature Authorization. Under the Electronic Signatures in Global and National Commerce Act (E-Sign), all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when: (a) Preferred or user’s electronic signature is associated with the documents, (b) Preferred or user consents and intend to be bound by the documents, and (c) the document is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., email, print or otherwise store the electronic record). When accepted in electronic form all electronic documents shall be governed by the provisions of E-Sign. By pressing “Submit”, “Accept” or “I Agree”, or otherwise making any indication that Preferred or user, as the case may be, agrees: (i) that the documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of the documents, and (iii) that it has had the ability to print or otherwise store the documents. Should you desire to not E-sign any document, email Preferred at [email protected] or you can email directly to your representative.
19) Payment Processing Services. Preferred works with various affiliates, Payment Method Providers and Payment Method Acquirers to provide you with access to the Payment Methods and Payment Processing Services. Where the Payment Processing Services enable you to submit Charges (as defined below), we may limit or refuse to process Charges for any Restricted Businesses, or for Charges submitted in violation of this Agreement. Your use of a Payment Method may be subject to separate terms applicable to the Payment Method.
The following terms used in this Agreement relate to your use of Payment Processing Services:
“Charge” means a credit or debit instruction to capture funds from an account that purchasers of your goods or services or donors to your organization (your “Customers”) maintain with a bank or other financial institution in connection with a Transaction.
“Dispute” means an instruction initiated by a Customer for the return of funds for an existing Charge (including a chargeback or dispute on a payment card network; and disputes on the Automated Clearinghouse (ACH) network).
“Fine” means any fines, levies, or other charges imposed by us, a Payment Method Provider, or a Payment Method Acquirer, caused by your violation of Laws or this Agreement, or as permitted by the applicable Payment Method Rules.
“Payment Method Rules” means the guidelines, bylaws, rules, and regulations imposed by the Payment Method Providers and Payment Method Acquirers that operate Payment Methods supported by Preferred (including the payment card network operating rules (“Network Rules”) for the Visa, Mastercard, Discover and American Express networks; and the NACHA operating rules that apply to the ACH network).
“Payment Method” means a type of payment method that Preferred accepts as part of the Payment Processing Services, such as credit card, debit card, and ACH.
“Payment Method Acquirer” means a financial institution that is authorized by a Payment Method Provider to enable the use of a Payment Method by accepting Charges from Customers on behalf of the Payment Method Provider and routing these Charges to the Payment Method Provider.
“Payment Method Provider” means the provider of a Payment Method, such as Visa, Mastercard, Discover, and American Express.
“Payment Processing Services” are Services that you may use to accept payments from your customers for Transactions, perform other financial transactions, manage subscriptions, and perform transaction reporting.
“Payment Terminal Documentation” means the Documentation, along with other documentation that Preferred makes available to you (including via email and Ecrypt), relating to Website.
“Preferred Terminal Product” means a hardware product, instrument, or piece of equipment that your or your affiliate purchases or receives (including at no cost) from Preferred or its affiliates under a separate agreement with Preferred, which may be a physical Point of Sale (POS) device, accessory, component, or spare part, and the software installed on that product; or another device approved by Preferred on which an app is installed that uses the Preferred Terminal Services.
“Preferred Terminal Services” means the payment processing services for transactions using a Preferred Terminal Product, together with other services and features that are specific to the Preferred Terminal offering as described in the Payment Terminal Documentation and this Agreement under Services.
“Refund” means an instruction initiated by you to return funds to a Customer for an existing Charge.
“Return” means an instruction initiated by you, a Customer, a Payment Method Provider, or a Payment Method Acquirer to return funds unrelated to an existing Charge.
“Reversal” means an instruction initiated by a Payment Method Provider, a Payment Method Acquirer or us to return funds for an existing Charge. Reversals may result from (i) invalidation of a charge by a Payment Method Provider or a Payment Method Acquirer; (ii) funds settled to you in error or without authorization; and (iii) submission of a Charge in violation of the applicable Payment Method Rules, or where submission of the Charge or your use of Payment Processing Services violates this Agreement.
“Terminal Device EULA” is defined under the Terminal Device EULA.
All other use of defined terms herein shall have the same meaning as the definitions for those terms in the Visa Core Rules and Visa Product and Service Rules.
a) Registering for Use of Payment Processing Services. When you register use the Website, including without limit Ecrypt, you may be asked for financial information, or information we use to identify you, your representatives, principals, beneficial owners, and other individuals associated with such use. Throughout the term of this Agreement, we may share information about your use of the Website with Payment Method Providers and Payment Method Acquirers in order to verify your eligibility to use the Payment Processing Services, establish any necessary accounts or credit with Payment Method Providers and Payment Method Acquirers, monitor Charges and other activity, and conduct risk management and compliance reviews. We may also share your Data (as that term is defined below) with Payment Method Providers and Payment Method Acquirers for the purpose of facilitating the compliance of Preferred, the Payment Method Providers, and the Payment Method Acquirers with applicable Laws and Payment Method Rules. We will review and may conduct further intermittent reviews of your account information to determine that you are eligible to use the Payment Processing Services. Our use of the information you provide to us under this Agreement is described in more detail in the Operative Agreements.
Preferred is not a bank and does not accept deposits, provide loans, or extend credit. If you accept payment for products or services (including events such as concerts or other performances) not immediately deliverable to the Customer (a “Preorder”), we may, in our sole discretion, initiate Reversals or hold Reserves for all or a portion of the Charges processed by us for a Preorder. If you would like to receive payment for a Preorder, please contact us before doing so. Furthermore, it is your responsibility to furnish to your customers in writing an acknowledgement of your responsibility to protect cardholder data which you may independently store, process, or transmit on behalf of your customer.
b) Processing Transactions; Disputes, Refunds, Reversals. You may only submit Charges through the Payment Processing Services that are authorized by your Customers. To enable us to process Transactions for you, you authorize and direct us, our affiliates, the Payment Method Providers and Payment Method Acquirers to receive and settle any payment processing proceeds owed to you through the Payment Processing Services. You may not, other than as required by the Financial Services Terms or Payment Terms (each as defined below), grant or assign any interest in payment processing proceeds to any third party until such time as the payment processing proceeds are deposited into your Payout Account (as defined below). You appoint Preferred and Preferred’s payment processing affiliates as your agents for the limited purpose of directing, receiving, holding, and settling such proceeds. You agree that Preferred’s or such affiliates’ receipt of such proceeds satisfies the relevant end-customer’s obligations to make payments to you. We will promptly update your Preferred Account balance to reflect any such proceeds that we receive on your behalf.
When you utilize the Services, we may ask you if you’d like us to remember you (“Ecrypt Checkout”). When you allow us to remember you, Ecrypt Checkout will store certain identifying information, such as your email address and your mobile phone number (“Ecrypt Credentials”), and/or your payment information like your credit card and debit cards (“Payment Credentials”). Information stored as part of your Payment Credentials may include information such as your name, the account number, and the expiration date, as well as associated information like your billing address and shipping address. The advantage of remembering you is that it will make your checkout quicker and easier in the future.
Except where Preferred and a Customer have otherwise agreed, you maintain the direct relationship with your Customers and are responsible for: (i) acquiring appropriate consent to submit Charges through the Payment Processing Services on their behalf; (ii) providing confirmation or receipts to Customers for each Charge; (iii) verifying Customers’ identities; and (iv) determining a Customer’s eligibility and authority to complete Transactions. However, even authorized Transactions may be subject to a Dispute. Preferred is not responsible for or liable to you for authorized and completed Charges that are later the subject of a Dispute, Refund, or Reversal, are submitted without authorization or in error, or violate any Laws.
You must ensure that all Transaction Receipts and Sales Drafts created because of a Credit, whether generated by electronic means or complete manually on paper, include (i) Card Account Number, (ii) Cardholder’s name, (iii) Card expiration date, (iv) your legal name, address, and Merchant Identification Number, (v) quantity and description of the good/service sold, (vi) total amount of the Credit including taxes, and (viii) a signature of your authorized representative.
You must promptly complete and submit a Credit Draft for the total amount of any refund which must include (i) account number and expiration date, (ii) Cardholder’s name, (iii) your fictitious business name and address, (iv) your Merchant Identification Number, (v) a description of the good/or services to which the refund relates, (vi) Transaction date of Credit, (vii) total amount of Credit, and (viii) a signature of your authorized representative or employee. Full refunds must be for the exact dollar amount of the original Transaction including tax, handling charges, etc. Refunds may not exceed the original Credit Card sale amount. Authorization is not required for refunds. You cannot intentionally submit a sale and an offsetting Credit later solely for the purpose of debiting and crediting your own account.
You are immediately responsible to us for all Disputes, Refunds, Reversals, Returns, or Fines regardless of the reason or timing. We may decline to act upon a Refund instruction, or delay execution of the instruction, if: (i) it would cause your Preferred Account balance to become negative; (ii) you are the subject of Bankruptcy Proceedings; or (iii) where we otherwise believe that there is a risk that you will not meet your liabilities under this Agreement (including with respect to the Charge that is the subject of the Refund instruction).
In many but not all cases, you may have the ability to challenge a Dispute by submitting evidence through the API or Ecrypt. We may request additional information to provide to Payment Method Providers and Payment Method Acquirers to assist you in contesting the Dispute, but we cannot guarantee that your challenge will be successful. Payment Method Providers and Payment Method Acquirers may deny your challenge for any reason they deem appropriate. Where a challenge is entirely or partially successful, your Preferred Account will, subject to our exercise of our rights under section 19(i) below, be credited with the funds associated with the Charge that is the subject of the Dispute (or a portion thereof). You may not submit a new Charge which duplicates a Transaction that is subject to a Dispute.
Please keep in mind that, you are liable for all losses you incur when lost or stolen payment credentials or accounts are used to purchase products or services from you. Preferred does not and will not insure you against losses caused by fraud under any circumstances. For example, if someone pretends to be a legitimate buyer but is a fraudster, you will be responsible for any resulting costs, including Disputes, even if you do not recover the fraudulently purchased product.
A Reversal for a Charge may be issued if the Charge is made without the account owner’s authorization or in connection with a restricted business, violates the applicable Payment Method Rules, or for other applicable reasons. If a Reversal is issued, we will provide you Notice and a description of the cause of the Reversal.
c) Terminal Software for Processing. Certain Preferred affiliates license Terminal Device Software to users, directly or indirectly under an end user Software License Agreement (the “Terminal Device Eula”). You must comply with the terms of the Terminal Device EULA in your use of the Terminal Device Software.
d) Terminal Purchase Terms. The Terminal Purchase Terms apply to the purchase of the Preferred Terminal Products. Preferred reserves the right to make details of the Preferred Terminal Products available by any means it deems acceptable. Preferred Terminal Products’ features, specifications, and prices are subject to change at any time without notice. We attempt to be as accurate as possible. However, we do not warrant that product descriptions or information is accurate, complete, reliable, current, or error-free. Unless expressly noted, all weights, measures and similar descriptions are approximate and are provided for convenience purposes only. Packaging may vary from that shown, and the appearance of the Preferred Terminal Products in reality may differ from how it appears to you. By placing an order, you represent that the products you order will be used only in a lawful manner.
i) Hardware Availability. Preferred Terminal Products are manufactured by third parties and resold by Preferred. While Preferred uses reasonable efforts to maintain sufficient supply of the Preferred Terminal Products, inventory shortages at our manufacturers and distributors may affect our ability to fulfil an order. If there is a delay in manufacture or distribution of a certain Preferred Terminal Product that we believe will affect your order, we will use reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule. Preferred is not obliged to accept any order, and we may cancel accepted orders at any time if we are unable to fulfil the order for any reason. If you submit an order, and we accept the order, you are bound by the order unless Preferred cancels the order. If we cancel your order, we will fully refund the purchase price to you.
ii) End Users. You may only purchase the Preferred Terminal Products for your own use, or for resale or distribution as permitted by the Preferred Terminal Reseller Terms available (outlined in this Agreement). You may not otherwise resell, rent, lease or distribute Preferred Terminal Products, or allow a third party to use Preferred Terminal Products that you have purchased. We reserve the right to refuse to sell or ship the Preferred Terminal Products to any person we believe intends to use, resell, distribute, or lease the Preferred Terminal Products in a manner prohibited by these Purchase Terms (which include the Reseller Terms).
e) Terminal Reseller Terms. The Preferred Terminal Reseller Terms (“Reseller Terms”) supplement the Terminal Purchase Terms and apply to the resale of the Preferred Terminal Products. Subject to the terms and conditions of this Agreement, we appoint to you agree to be appointed as an authorized, non-exclusive reseller and distributor of the Preferred Terminal Products. Pursuant to these Reseller Terms you may market, resell, and distribute the Preferred Terminal Products in your name and on your behalf, provided that the resale, marketing and distribution of Preferred Terminal Products must be solely for the purposes of encouraging and enabling use of the Preferred Terminal Services with the Preferred Terminal Products. You do not have any exclusive rights under these Reseller Terms.
Your distribution of Preferred Terminal Products may not be via a rental or lease arrangement unless we provide our prior written consent. You may not resell, market, or distribute the Preferred Terminal Products or any part of the Preferred Terminal Products outside of the countries where Preferred provides support for Preferred Services, and you must not ship Preferred Terminal Products to an address located in a country other than the country to which Preferred initially shipped those products.
i) End Users. In these Reseller Terms, an “End User” is a person or entity that uses a Preferred Terminal Product that you sell or distribute, and the direct and indirect individual or enterprise customers of Preferred Terminal Products. You must ensure that End Users: (a) agree to the Preferred Terminal Purchase Terms and Preferred Terminal Services Terms, as applicable; and (b) use Preferred Terminal Products only within the country to which Preferred initially shipped; and (c) without limiting any of your other obligations under these Reseller Terms, if you obtain equipment, software or accessories branded by Preferred under the Preferred Terminal Purchase Terms and shipped to you by or on behalf of Preferred, Preferred may allow you to specify End Users to which the Preferred Terminal Products are to be shipped. All such orders will be deemed to be made by you on behalf of the End Users, and Preferred will ship the Preferred Terminal Products directly to the End Users.
ii) Your Resale of Preferred Terminal Products. If you resell or distribute the Preferred Terminal Products, you must:
(a) comply with all Laws applicable to your resale and distribution of the Preferred Terminal Products (as applicable, this may include compliance with domestic and international Laws related to the use or provision of financial services, consumer protection, unfair competition, privacy and data-protection, anti-spam, and false advertising, as well as other Laws relevant to the Preferred Terminal Services);
(b) maintain working capital and net worth sufficient to carry out your obligations under these Reseller Terms, as determined by Preferred. If we determine that you have not met these standards, we may immediately terminate these Reseller Terms by providing you with written notice;
(c) when you ship the Preferred Terminal Products, package the products appropriately and sufficiently to avoid damage caused in transit as a result of insufficient packaging;
(d) provide timely and professional support to End Users with regard to the Preferred Terminal Products;
(e) promptly notify Preferred if you become aware of a breach of this Agreement by any End User to whom you have resold or distributed any Preferred Terminal Products, and, upon request, cooperate with Preferred to address and resolve the breach;
(f) be responsible, as required under applicable Law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) for which you are liable with respect to the resale or distribution of any Preferred Terminal Products.
iii) Restrictions. You must not, and you must not permit, or attempt to permit, any third party to:
(a) resell or distribute a Preferred Terminal Product by any means to any person or entity you know or ought reasonably to know intends to use the Preferred Terminal Product for benchmarking or similar testing purposes;
(b) resell or distribute a Preferred Terminal Product by any means to any person or entity that engages in or benefits from activities Preferred has identified as a restricted business or activity;
(c) resell or distribute a Preferred Terminal Product to any person or entity that engages or intends to engage in unlawful conduct, or who uses or intends to use the Preferred Terminal Product for personal, family or household purposes or for any non-commercial use. If you resell or distribute the Preferred Terminal Products, you must use reasonable efforts to determine how the End Users intend to use the products;
(d) attempt to enter into any legally binding obligation on behalf of Preferred with respect to the Preferred Terminal Products;
(e) remove or change any copyright, trademark, trade name, logo, or other notice, legend, symbol, or label appearing on or in the Preferred Terminal Products, or otherwise change the packaging of the Preferred Terminal Products or the labeling of the Preferred Terminal Products or their packages, unless Preferred preapproves that removal or change in writing; but, you may include your own trademarks, trade names, and service marks on or in the Preferred Terminal Products in addition to any existing trademarks, trade names, and service marks;
(f) use Terminal Device Software provided with Preferred Terminal Products except for use by you as incorporated into and installed on the Preferred Terminal Products as provided to you by Preferred and only in accordance with the Documentation; or
(g) disclose to third parties Terminal Device Software except in accordance with these Reseller Terms and the Terminal Device EULA.
f) Responsibilities and Disclosures to Your Customers. It is important to us that your Customers understand the purpose, amount, and conditions of Charges you submit to us. With that in mind, when using the Payment Processing Services you agree to: (i) accurately communicate, and not misrepresent, the nature of the Transaction, and the amount of the Charge in the appropriate currency prior to submitting it to the API; (ii) provide a receipt that accurately describes each Transaction to Customers; (iii) provide Customers a meaningful way to contact you in the event that the product or service is not provided as described; (iv) not use Services to sell products or services in a manner that is unfair or deceptive, exposes Customers to unreasonable risks, or does not disclose material terms of a purchase in advance; and (v) inform Customers that Preferred and its affiliates process Transactions (including payment Transactions) for you. You also agree to maintain and make available to your Customers a fair and neutral return, refund, cancellation, or adjustment policy, and clearly explain the process by which Customers can receive a Refund.
The Payment Processing Services may include functionality that enables you to receive recurring or subscription payments from your Customers, and to issue invoices to your Customers. If you use the Payment Processing Services to submit recurring or subscription Charges, you agree to comply with applicable Laws and Payment Method Rules, including clearly informing Customers in advance of submitting the initial Charge that they will be charged on an ongoing basis and explaining the method for unsubscribing or cancelling their recurring billing or subscription. If you use the Payment Processing Services to issue invoices to your Customers, you understand and agree that it is your responsibility to ensure that the form and content of the invoices comply with applicable Laws and are sufficient to achieve any legal or tax effect that you are trying to achieve.
If you engage in Transactions with Customers who are individuals (i.e., consumers), you specifically agree to provide consumers disclosures required by Law, and to not engage in unfair, deceptive, or abusive acts or practices (“UDAAP”).
g) Payment Terms and Financial Services Terms. Your use of the Payment Processing Services may be subject to additional terms that apply between you and one or more of Preferred, a Preferred affiliate, a Payment Method Provider, and a Payment Method Acquirer. When these additional terms relate to a specific Payment Method they are “Payment Terms,” and when they relate to specific Payment Processing Services they are “Financial Services Terms.” By using the Payment Processing Services, you agree to the applicable Payment Terms and Financial Services Terms, including those that separately bind you with our affiliates, Payment Method Providers and/or Payment Method Acquirers. Additionally, a Payment Method Provider may enforce the terms of this Agreement directly against you.
We may add or remove Payment Method Providers and Payment Method Acquirers at any time. The Payment Terms and Financial Services Terms may also be amended from time to time. Your continuing use of the Payment Processing Services constitutes your consent and agreement to such additions, removals, and amendments.
h) Specific Payment Methods.
i) Payment Cards: When accepting payment card payments, you must comply with all applicable Network Rules, including the Visa Rules and Regulations Rules specified by Visa U.S.A., Inc. and Visa International (“Visa”), the Mastercard Rules specified by MasterCard International Incorporated (“Mastercard”), the American Express Merchant Operating Guide specified by American Express, and the Discover Network Rules (please contact Discover for a copy) specified by Discover Financial Services, LLC (“Discover”). Collectively, Visa, Mastercard, American Express and Discover are referred to in this Agreement as the “Networks.”
In addition, certain Networks may require that you enter into a direct contractual relationship the Payment Method Acquirer Transactions processed through the applicable Network which may include third party Payment Method Acquirers and their respective terms and conditions related to use of Payment Processing Services.
The Network Rules state that you may only accept payments using payment cards for bona fide legal commercial transactions between you and your Customers for goods or services that are free of liens, claims, and encumbrances. You may only use payment network trademarks or service marks consistent with the Network Rules, and the Network Rules also limit your ability to discriminate by card type or charge surcharges for acceptance of payment cards.
The Networks may amend the Network Rules at any time without notice to you, and Preferred reserves the right to change the Payment Processing Services at any time to comply with the Network Rules. We may share with the Networks (and the Payment Method Acquirer) information you provide to us that we use to identify the nature of your products or services, including the assignment of your business activities to a particular payment network merchant category code (MCC).
Customers typically raise payment card network Disputes (also known as “chargebacks”) when a merchant fails to provide the product or service to the Customer, or where the payment card account holder did not authorize the Charge. High Dispute rates (typically those exceeding 1%) may result in your inability to use the Payment Processing Services. Failure to timely and effectively manage Disputes with your Customers may ultimately result in your inability to accept payment cards for your business.
When you accept payment card Transactions, Network Rules specifically prohibit you from (A) providing cash refunds for a Charge on a credit card, unless required by Laws, (B) initiating a Refund more than five calendar days after issuing a credit to your Customer, (C) accepting cash, its equivalent, or any other item of value for a Refund, (D) acting as a payment facilitator, intermediary or aggregator, or otherwise reselling Payment Processing Services on behalf of others, (E) submitting what you believe or know to be a fraudulent Charge or a Charge that has not been authorized by the cardholder, (F) submitting a Charge where the Transaction has not been completed or the goods or services have not been shipped or provided (except where the cardholder has paid a partial or full prepayment or the cardholder’s consent is obtained for a recurring transaction), (G) splitting Transactions into multiple Charges unless certain criteria are met, or (H) using Payment Processing Services in a manner that is an abuse of the payment card networks or a violation of the Network Rules.
If you misuse the Payment Processing Services for payment card Transactions or engage in activity the Networks identify as damaging to their brand, or if we are required to do so by the Network Rules, we may submit information about you, Representatives, your beneficial owners and principals, and other individuals associated with your Preferred Account, to the MATCH terminated merchant listing maintained by Mastercard and accessed and updated by Visa and American Express, or to the Consortium Merchant Negative File maintained by Discover. Addition to one of these lists may result in your inability to accept payments from payment cards. You understand and consent to our sharing this information and to the listing itself, and you will fully reimburse us for any losses we incur from third-party claims, and you waive your rights to bring any direct claims against us that result from such reporting. Our reporting of information under this paragraph is separate from any other right that we may exercise under this Agreement, and we may separately terminate this Agreement or suspend your Preferred Account due to the misuse or damaging activity that caused us to make the report.
If you engage a third-party processor to create and deliver a payment card transaction directly to the payment card network, then you may be able to specify that the transaction will be cleared and settled by Preferred via our Payment Processing Services. If you intend to make use of this service with respect to the Preferred Payment Processing Services, you first must notify us. If you engage a third party to deliver this service, and you are permitted to designate Preferred in this manner, then you take the risk of the third party professionally delivering the transaction to the payment card network. You understand and agree that Preferred will only clear and settle to you funds for transactions that are actually received by the payment card network. You further assume responsibility for any failure by such third party to comply with the applicable Network Rules.
ii) Automated Clearinghouse (ACH): The ACH network is controlled and managed by the National Automated Clearinghouse Association (NACHA) and its member organizations. Where submitting Charges over the ACH network, you are required to comply with the NACHA Operating Rules. NACHA may amend the NACHA Operating Rules at any time, and we may amend this Agreement or make changes to the Payment Processing Services as necessary to comply with the NACHA Operating Rules.
You understand and accept your role as the Originator (as defined in the NACHA Operating Rules). You agree to obtain your Customer’s consent to debit or credit their bank account and initiate a Charge over the ACH network. Such consent must be in a form and manner that complies with the NACHA Operating Rules and the Documentation for ACH Transactions. As with other Payment Processing Services, you may not, and may not attempt to send or receive funds to or from a person, entity, or state where such Transactions are prohibited by applicable Law. You also agree to maintain the security and integrity of all information you collect as part of an ACH Transaction.
Any Disputes or unauthorized Charges using the ACH network may result in you becoming unable to accept ACH payments.
iii) Money Transmission: Certain services offered in conjunction with the Services vis-à-vis Preferred’s affiliates and third-party partners may include money transmission within the meaning of Laws that apply to those Services. To the extent that your use of such service in conjunction with the Services is money transmission or similarly regulated services, those Services are provided to you by Preferred’s affiliates and/or third-party partners and not by Preferred and controlled by a separate terms and conditions to which Preferred is not a party.
iv) American Express Conversion: If your American Express Transaction volume exceeds a threshold amount set by an American Express, American Express may convert you to a direct American Express merchant, which means that your acceptance of American Express Transactions will be governed by American
Express’ then-current Card Acceptance Agreement, and your pricing and other fees for the acceptance of American Express Transactions will be directly agreed between you and American Express. In the event of such conversion, your relationship with Preferred will not be otherwise affected, and Preferred will continue to process your American Express Transactions in accordance with this Agreement.
i) Settlement and Payout Schedule.
i) Your Payout Account: Preferred will, with its banking partners, arrange to settle funds to the bank or other financial institution account that you designate (your “Payout Account”). You affirm that you are authorized to initiate settlements to and debits from the Payout Account, and that the Payout Account is owned by you, titled in your legal or trade name, and administered and managed by a financial institution located in the United States of America. If you update your Payout Account (including via Ecrypt) then you must ensure that you continue to comply with the requirements of this section. We may require you to provide us with documentary proof demonstrating your compliance with this section, and your failure to provide such proof will constitute a breach of this Agreement.
ii) Settlement to Your Payout Account: A positive balance in your Preferred Account will result in settlement to your Payout Account and a negative balance in your Preferred Account will result in a deduction, set-off and/or debit of the amounts owed in accordance with Section 19(i) below. We may reduce the amount settled to your Payout Account by the amount of Fees, Fines, and amounts owed to us for any reason. If a settlement or debit is processed via ACH, you acknowledge that the NACHA Operating Rules will apply to the settlement or debit, and you agree to be bound by these rules.
iii) Settlement to Third-Party Recipients: We may offer you the ability to have funds settled to another person (a “third party recipient”) as instructed by you to Preferred (including by transferring all or part of the positive balance in your Preferred Account to the Preferred Account of such third-party recipient), instead of settling funds to your Payout Account. If Preferred or Preferred Payment Company settles funds to a third party recipient (or transfers all or part of the balance in your Preferred Account to the Preferred Account of a third party recipient) as instructed by you, you agree that this satisfies Preferred’s and Preferred Payment Company’s obligations (and any applicable Payment Method Provider’s and Payment Method Acquirer’s obligations) to settle funds to you, and we will promptly update your Preferred Account balance to reflect such settlement or transfer.
iv) Multi-Currency Processing. We may offer you the ability to have funds settled to your Payout Account in a currency different from the one in which you accepted payment from a customer (“Multi-Currency Processing”). To use this service, you must provide us with a valid Payout Account for each currency for which you request settlement, based on our list of available settlement currencies. We may add or remove currencies from our list of available settlement currencies at any time. If you use Multi-Currency Processing, we will identify at the time of the Charge (for example, through the API), the conversion rate that will apply to the Charge. If you Refund a Charge, the conversion rate that will apply will be the rate in effect at the time of the Refund, not the Charge. By submitting a Charge or Refund you will be deemed to have accepted the applicable conversion rate. You may choose not to use the Multi-Currency Processing service at any time. You may also change the Payout Account information or other settings associated with your use of Multi-Currency Processing, but any such changes will only affect subsequent Charges.
v) Payout Schedule: The term “Payout Schedule” refers to the time it takes for us to initiate settlement to your Payout Account. Your Payout Schedule is specified in Ecrypt. Preferred may require a holding period before making initial settlement to the Payout Account. After the initial settlement of funds, we will settle funds to the Payout Account according to the Payout Schedule; however, please be aware that a Payment Method Provider, a Payment Method Acquirer, or the financial institution holding your Payout Account, may delay settlement for any reason. We are not responsible for any action taken by the institution holding your Payout Account to not credit the Payout Account or to otherwise not make funds available to you as you expected.
We reserve the right to change the Payout Schedule or to suspend settlement to you. Examples of situations where we may do so are: (A) where there are pending, anticipated, or excessive Disputes, Refunds, or Reversals; (B) in the event that we suspect or become aware of suspicious activity; or (C) where we are required by Law or court order. We have the right to withhold settlement to your Payout Account upon termination of this Agreement if we reasonably determine that we may incur losses resulting from credit, fraud, or other legal risks associated with your Preferred Account. If we exercise our right to withhold a Payout for any reason, we will communicate the general reason for withholding the Payout and give you a timeline for releasing the funds.
vi) Incorrect Settlement: The information required for settlement will depend on the financial institution holding the Payout Account. Please make sure that any information about the Payout Accounts that you provide to us is accurate and complete. If you provide us with incorrect information (A) you understand that funds may be settled to the wrong account and that we may not be able to recover the funds from such incorrect transactions and (B) you agree that you are solely responsible for any losses you or third parties incur due to erroneous settlement transactions, you will not make any claims against us related to such erroneous settlement transactions, and you will fully reimburse us for any losses we incur.
j) Clearing Funds and Reserves. All funds resulting from Charges are held in pooled clearing accounts (the “Clearing Accounts”) with our banking partners. We will settle funds to and from the Clearing Accounts in the manner described in this Agreement; however, you have no rights to the Clearing Accounts or to any funds held in the Clearing Accounts, you are not entitled to draw funds from the Clearing Accounts, and you will not receive interest from funds maintained in the Clearing Accounts.
In certain circumstances, we may require you to place funds in reserve or to impose conditions on the release of funds (each a “Reserve”). We may impose a Reserve on you for any reason if we determine that the risk of loss to Preferred, Customers, or others associated with your Preferred Account is higher than normal. For example, we may hold a Reserve if: (i) your or your Customers’ activities increase the risk of loss to us or to your Customers, (ii) you have violated or are likely to violate this Agreement, or (iii) your Preferred Account has an elevated or abnormally high number of Disputes. If we impose a Reserve, we will establish the terms of the Reserve and provide you Notice of the amount, timing, and conditions upon which the funds in the Reserve will be released to you. In many cases, the Reserve amount will be the entire amount of Charges processed using the Payment Processing Services. We may change or condition the terms of the Reserve based on our continuous assessment and understanding of the risks associated with your Preferred Account, if required to do so by Payment Method Providers or Payment Method Acquirers, or for any other reason. We may fund the Reserve with funds processed through your use of Payment Processing Services, by debiting the Payout Account or another bank account associated with your Preferred Account, or by requesting funds directly from you.
To the extent possible, we prefer to identify the necessity for a Reserve in advance of establishing one. If you are concerned that we will impose a Reserve on you due to the nature of your business activities, please contact us before using the Services.
k) Security Interests, Collection, and Set-Off Rights.
i) Security Interests: You grant us a lien and security interest in all funds for Transactions that we process for you, including funds that we deposit into your Payout Accounts, as well as funds held in any other bank accounts to which such Transaction funds are deposited or transferred. This means that if you have not paid funds that you owe to us, your Customers, or to any of our affiliates, we have a right superior to the rights of any of your other creditors to seize or withhold funds owed to you for Transactions that we process through the Services, and to debit or withdraw funds from any bank account associated with your Preferred Account (including your Payout Accounts). Upon our request, you will execute and deliver any documents and pay any associated fees we consider necessary to create, perfect, and maintain a security interest in such funds (such as the filing of a form UCC-1).
ii) Collection and Set-Off Rights: You agree to pay all amounts owed to us and to our affiliates on demand. Your failure to pay amounts owed to us or to our affiliates under this Agreement is a breach and you will be liable for any costs we incur during collection in addition to the amount you owe. Collection costs may include, attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, any applicable interest, and any other related cost. Where possible, we will first attempt to collect, or set-off amounts owed to us and to or affiliates from balances in your Preferred Accounts from your use of the Payment Processing Services or from funds that we hold in Reserve. However, we may collect any amounts you owe us under this Agreement by deducting or setting-off amounts that you owe from the Preferred account balance (or debiting the payout account for such Preferred account) for any Preferred account that we determine, acting reasonably, is associated with your Preferred Account. Similarly, we may deduct or set-off amounts from your Preferred Account balance (or debit your Payout Accounts) in order to collect amounts owed to us in relation to such associated Preferred accounts.
In certain circumstances, we may require a personal, parent or other guarantee (a “Guarantee”) from a user’s principal, owner, or other guarantor. A Guarantee consists of a legally binding promise by an individual or an entity to pay any amounts the user owes in the event that the user is unable to pay. If we require you to provide us with a Guarantee, we will specifically inform you of the amount of, and the reasons for the Guarantee. If you are unable to provide such a Guarantee when required, you will not be permitted to use the Services.
l) Reconciliation and Error Notification. Ecrypt contains details of Charges, Charge history, and other activity on your Preferred Account. Except as required by Law, you are solely responsible for reconciling the information in Ecrypt generated by your use of Payment Processing Services with your records of Customer Transactions, and for identifying any errors. You agree to review your Preferred Account and immediately notify us of any errors. We will investigate any reported errors, including any errors made by Preferred or a Payment Method Provider, and, when appropriate, attempt to rectify them by crediting or debiting the Payout Account identified in Ecrypt. However, you should be aware that your ability to recover funds you have lost due to an error may be extremely limited or even impossible, particularly if we did not cause the error, or if funds are no longer available in any Payout Account. For Transaction errors, we will work with you and our Payment Method Providers to correct a Transaction error in accordance with the applicable Payment Method Rules. If you fail to communicate an error to us for our review without undue delay and, in any event, within 60 days after you discovered it and flagged it in Ecrypt, you waive your right to make any claim against us or our Payment Method Providers for any amounts associated with the error.
m) Dormant Accounts. If you leave any funds dormant in a Preferred Account and you do not give us instructions where to send them, we may be required by Law to deem the funds to be abandoned by you, and to deliver them to various government agencies. To the extent required by Law, we will attempt to provide you Notice if we hold funds payable to you in an account beyond the applicable dormancy period for abandoned property. If we are unable to contact you, we will treat the funds in your Preferred Account to be abandoned and will deliver them to the appropriate government authority (such as the California Controller’s Office).
20) Additional Legal Terms
a) Right to Amend. We have the right to change or add to the terms of this Agreement at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on use of the Services by posting such changes on our website or any other website we maintain or own. We will provide you with Notice of any changes through Ecrypt, via email, or through other reasonable means. If you are an existing Preferred user, the changes will come into effect 10 days after we post the changes to our website, and your use of the Services, API, or Data more than 10 days after we publish any such changes on our website, constitutes your acceptance of the terms of the modified Agreement. You can access a copy of the current terms of this Agreement on our website at any time. You can find out when this Agreement was last changed by checking the “Last updated” date at the top of the Agreement.
b) Assignment. You may not assign this Agreement, any rights or licenses granted in this Agreement, or operation of your Preferred Account to others without our prior written consent. If you wish to make such an assignment, please contact us. If we consent to the assignment, the assignee must agree to assume all of your rights and obligations owed by you related to the assignment and must agree to comply with the terms of this Agreement. Preferred may assign this Agreement without your consent or any other restriction. If we make an assignment, we will provide reasonable Notice to you.
c) Right to Audit. If we believe that a security breach, leak, loss, or compromise of Data has occurred on your systems, website, or app affecting your compliance with this Agreement, we may require you to permit a third-party auditor approved by us to conduct a security audit of your systems and facilities, and you must fully cooperate with any requests for information or assistance that the auditor makes to you as part of the security audit. The auditor will issue a report to us which we may share with our Payment Method Providers and Payment Methods Acquirers.
d) Force Majeure. Neither party will be liable for any delays in processing or other nonperformance caused by telecommunications, utility, failures, or equipment failures; labor strife, riots, war, or terrorist attacks; nonperformance of our vendors or suppliers, fires or acts of nature; or any other event over which the respective party has no reasonable control. However, nothing in this section will affect or excuse your liabilities or your obligation to pay Fees, Fines, Disputes, Refunds, Reversals, or Returns under this Agreement.
e) Representations and Warranties. By accepting the terms of this Agreement, you represent and warrant that: (i) you are eligible to register and use the Services and have the authority to execute and perform the obligations required by this Agreement; (ii) any information you provide us about your business, products, or services is accurate and complete; (iii) any Charges represent a Transaction for permitted products, services, or donations, and any related information accurately describes the Transaction; (iv) you will fulfill all of your obligations to Customers and will resolve all Disputes with them; (v) you will comply with all Laws applicable to your business and use of the Services; (vi) your employees, contractors and agents will at all times act consistently with the terms of this Agreement; (vii) you will not use Payment Processing Services for personal, family or household purposes, for peer-to-peer money transmission, or (except in the normal course of business) intercompany Transactions; and (viii) you will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner that interferes with the normal operation of the Services.