Last updated: June 20, 2023
By agreeing to this Master Services Agreement (“Agreement”) of DB3 Mobile, Inc. d/b/a Meal Ticket (the “Company”), you represent that you have the right to bind your organization (“Customer”) to its terms and conditions. If you do not have such right, you should not agree to this Agreement or use the Services defined below.
1. ORDERING & SERVICES
1.1. Ordering. Customer may order from the Company: (a) licenses to access and use the Company’s online service, including any add-ons or modules (collectively, the “Services”) and/or (b) related professional services (collectively, “Professional Services”). The specifics of each Customer Order will be set forth on an order form or similar document agreed to by the relevant parties (“Order Form”). Each Order Form constitutes a binding commitment to purchase the items described on such Order Form, and all Order Forms are incorporated herein by reference.
1.2 Grant. Customer may access and use the Services in accordance with and subject to any restrictions set forth in this Agreement and other documents expressly referenced herein. Subject to the terms and conditions of this Agreement, the Company grants to Customer a non‑exclusive, non‑transferable right, during the Subscription Term, to: (a) permit its designated users (“Users”) to access and use the Services for Customer’s business purposes in accordance with the Company’s published documentation made available by the Company (collectively, the “Documentation”); and (b) use and reproduce the Documentation as needed to support Customer’s use of the Services.
1.3 Restrictions. Except as otherwise permitted hereunder, Customer agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Services, except to the extent such restriction is not permitted by law; (b) distribute, transfer, sublicense, or otherwise make available the Services (or any portion thereof) to third parties other than Users, or as otherwise provided herein; (c) use the Services in violation of the Documentation or any applicable law, rule or regulation, including any export/import laws, or (d) in any way access, use, or copy any portion of the Services to directly or indirectly develop, promote, distribute, sell or support any competitive product or service.
1.4 Professional Services. The Company or its third-party providers will perform the Professional Services set forth on the applicable Order Form (if any). The particulars of each Professional Services engagement will be as set forth in executed statements of work (each, an “SOW”) entered into by the parties. Unless otherwise set forth in the applicable SOW, the Company will retain all right, title and interest in and to all deliverables (including any and all intellectual property rights therein) provided under each SOW (“Deliverables”) except to the extent they contain any pre‑existing Customer intellectual property. Customer’s rights to the Deliverables shall be the same as Customer’s rights to the Services to which they pertain.
1.5 Customer Content. Customer: (a) owns or has sufficient rights to all content and data that it uploads via the Services (“Customer Content”) to permit the Company to perform its obligations hereunder; (b) shall be solely responsible for the accuracy and quality of any and all Customer Content; and (c) acknowledges that the performance of the Services is dependent on the accuracy and quality of Customer Content and Customer’s compliance with industry best practices with respect to use of the Services. Without limiting the generality of the foregoing, Customer will provide the Company with Customer Content including but not limited to sales data, product data, customer information and information about sales representatives. A data feed of Customer’s sales history for the prior 24 months will be required for the reporting tools/analytics provided through the Services. Customer grants the Company a non-exclusive, worldwide, royalty-free and fully paid license to: (a) use, copy, transmit, store, and publish the Customer Content as necessary for purposes of providing the Services and performing its obligations under this Agreement and (b) use the Customer Content (i) to provide the Services and to perform its obligations under this Agreement; and (ii) for research and development purposes, including but not limited to measuring and improving the effectiveness of the Services. For the avoidance of doubt, the Company will not disclose Customer Content to third parties except as authorized hereunder or by the parties in writing. The Company may collect and use information derived from general use and operation of the Services (“Usage Data”) to create derivative data or aggregated insights and analytics for the Company’s general commercial purposes, provided that the Company may only disclose Usage Data in an anonymous, aggregated format that in no way identifies Customer or any User.
2. FEES AND EXPENSES; PAYMENTS
2.1 Fees. All fees for licenses to the Services and/or for Professional Services (collectively, the “Fees”) will be set forth on the applicable Order Form. Customer is responsible for any and all applicable sales, use and other taxes (other than taxes based on the Company’s income). Unless otherwise agreed to in writing, each party is responsible for its own expenses under this Agreement. Customer agrees that its purchases are not contingent upon the delivery of any future functionality or features or promises related thereto.
2.2 Payment Terms. Unless otherwise agreed to in writing by the parties, Customer will pay to the Company all Fees upon the Company’s issuance of an invoice. Except as set forth herein, all amounts paid are non‑refundable. Any undisputed amounts not paid when due will bear interest at the greater of 1.5% per month or the maximum legal rate. If Customer fails to pay any undisputed amount when due under this Agreement, the Company will provide a reminder notice to Customer. If Customer does not pay such overdue amount within 15 days of the reminder notice, the Company may withhold performance and suspend Customer’s access to the Services until all undisputed amounts due are paid in full.
3. OWNERSHIP & REWARDS PROGRAMS
3.1 Ownership. As between the parties, the Company or its partners will retain all ownership rights in and to the Services, all updates and/or upgrades thereto, the Documentation, Deliverables, and other derivative works of the Services and/or Documentation that are provided by the Company or its partners, including any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Services, and all intellectual property rights incorporated or related to the foregoing. As between the parties, Customer will retain all ownership rights in and to all Customer Content.
3.2 Rewards Programs. In the event Customer offers a Rewards Program(s), Customer agrees and acknowledges that Customer will be solely liable for such Rewards Program and its administration and execution. Customer will provide each User or end-user with any required terms and conditions associated with the Rewards Program. Customer will comply with all necessary state filings and registrations required to perform any Rewards Program, including but not limited to laws related to abandoned property or escheat. In the event Customer’s Rewards Program offers general-use prepaid cards, gift certificates, store gift cards, or similar prepaid payment device, Customer will comply with all applicable state and federal laws.
4. WARRANTIES AND DISCLAIMERS
4.1 By the Company. Company warrants that (a) the Services, as delivered and when used in accordance with the Documentation, will perform in all material respects as specified in the Documentation; (b) the Professional Services will be performed in a professional and workmanlike manner in accordance with reasonable industry standards; and (c) the Company will not knowingly introduce any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines within the Services that are intentionally designed to permit unauthorized access to or use of either the Services or Customer’s computer systems (“Viruses”). In the event of any breach of the warranty in the foregoing subsections (a) or (b), the Company shall, as its sole liability and Customer’s sole remedy, diligently remedy any deficiencies that cause the Services or Professional Services, as applicable, to not conform to the foregoing warranty promptly after its receipt of written notice from Customer. The Company will not be liable to the extent that any breach of the foregoing warranties are caused by (x) third-party components (including in combination with the Services) not provided by the Company; (y) unauthorized use or use of the Services other than in accordance with the Documentation; or (z) Viruses introduced by Customer or its agents.
4.2 By Customer. Customer represents and warrants to the Company that the Customer Content will not (a) infringe any third-party intellectual property right, including but not limited to any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage the Services; or (e) otherwise violate the rights of any third party. Customer further warrants that: (x) it will comply with all applicable laws relating to the collection, use, processing, security, and transfer of Customer Content that it provides to the Company, including any data that alone or in combination can be used to identify an individual (“Personal Data”), (y) ensure that Customer and the Company have the right to collect, use and share Customer Content via the Services, and (z) provide adequate notice to, and obtain any necessary consents from, and establish any applicable terms and conditions with, any third parties as required under all applicable laws with respect to Customer Content collected, used, transmitted and shared by Customer or by the Company via the Services. Customer shall indemnify, defend and hold harmless the Company from and against any and all claims or liabilities of any kind arising out of a breach of the foregoing warranties.
4.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS,” AND THE COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY THE COMPANY. THE COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT ANY CONTENT OR DATA WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED, OR THAT OPERATION OF THE SYSTEM AND SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
5. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE SERVICES, PROFESSIONAL SERVICES AND INTELLECTUAL PROPERTY PROVIDED HEREUNDER, SHALL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, THE TOTAL OF THE FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE-YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES. NOTWITHSTANDING THE FOREGOING, THERE IS NO LIMITATION ON DIRECT LOSS, CLAIM OR DAMAGES ARISING AS A RESULT OF AN INFRINGEMENT OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS.
6. INDEMNIFICATION BY THE COMPANY
The Company will (a) defend, or at its option settle, any action, suit, or proceeding filed by a third party against Customer (a “Suit”) to the extent such Suit claims that Customer’s use of the Services as permitted in this Agreement constitutes infringement or misappropriation of such third party’s intellectual property rights; and (b) pay (i) any final judgment or award directly resulting from such Suit or (ii) those damages agreed to by the Company in a monetary settlement of such Suit. If any portion of the Services becomes, or in the Company’s opinion is likely to become, the subject of a claim of infringement, the Company may, at the Company’s option: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing services which do not materially impair the functionality of the Services; (c) modify the Services so that they become non-infringing; or (d) terminate this Agreement and refund any Fees actually paid by Customer to the Company for the remainder of the Subscription Term then in effect, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, the Company will have no obligation under this section or otherwise with respect to any infringement claim that arising from (x) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (y) any use of the Services in combination with other products, equipment, software or data not supplied by the Company; or (z) any modification of the Services by any person other than the Company or its authorized agents. This section states the sole and exclusive remedy of Customer and the entire liability of the Company, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
7. TERM AND TERMINATION
This Agreement shall continue in effect until terminated as set forth herein. The term of each license to the Services purchased by Customer will commence on the date set forth on the applicable Order Form and will continue for the period set forth on such Order Form, including any renewal term (collectively, the “Subscription Term”). Unless otherwise set forth on the applicable Order Form, Customer’s license to the Services will automatically renew for successive 12-month terms with an automatic 7% increase in Fees for each subsequent renewal term, unless either party gives the other party written notice of its intent not to renew at least 60 days prior to the end of the applicable Subscription Term. Customer’s right to use the Services will end once the applicable Order Form has been terminated or expires, and any information or content that Customer may have stored on the Services, including Customer Content, may be unavailable after termination or expiration. The Company is not responsible or liable for any records or information made unavailable to Customer as a result of the termination or expiration of the Services.
8. SUSPENSION
If the Company reasonably determines that Customer’s or any User’s access or use of any portion or all of the Services contains or creates a material risk to the Services, then the Company may immediately suspend Customer’s access to the Services, provided that the Company will provide prior notice to Customer of any such suspension to the extent commercially reasonable. Customer will remain liable for all Fees during any such suspension.
9. CONFIDENTIAL INFORMATION
“Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or reasonably should have known is considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least the same degree of care that the receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before the effective date of this Agreement without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or as otherwise required by law, provided that, to the extent legally permissible, the receiving party will notify the disclosing party promptly of such required disclosure and reasonably assists the disclosing party in efforts to limit such required disclosure.
10. MISCELLANEOUS
Except with respect to Customer’s payment obligations, each party will be excused from any delay or failure in performance hereunder solely to the extent it could not perform due to any occurrence or contingency beyond its reasonable control, including but not limited to acts of God and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership or a joint venture between the parties. This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Except as otherwise set forth herein, neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent, except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of Idaho, without regard to its conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Ada County, Idaho. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. If any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes any Order Forms agreed to by the parties in writing and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals or other documents submitted by the parties. The terms on any purchase order or similar document submitted by Customer to the Company will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in this Agreement and/or the applicable Order Form and, if sent to the Company, will be sent to the following address:
11. PAYMENT SERVICES
DB3 Mobile, Inc. d/b/a Meal Ticket (the “Company”) has arranged for Payment Services Provider or PSP (as defined below) to provide integrated Payment Services as part of the Services offered to its Customers. The Company will provide any needed assistance and customer service to Customer related to Payment Services. For the purpose of these Payment Services Terms. For clarity, Customer is also referred to as the “Merchant” in the PSP Merchant Agreement.
PLEASE READ THIS DOCUMENT CAREFULLY. BY ACCEPTING THESE PAYMENT SERVICES TERMS OR SUBMITTING A MERCHANT APPLICATION ONLINE OR ACCESSING OR USING ANY OF THE PAYMENT SERVICES, CUSTOMER IS AGREEING TO BE BOUND BY THESE PAYMENT SERVICES TERMS, WHICH INCLUDE INFORMATION ABOUT CUSTOMER’S RIGHTS AND OBLIGATIONS, THE COMPANY DISCLAIMERS AND A LIMITATION ON THE COMPANY’S LIABILITY, AMONG OTHER IMPORTANT PROVISIONS.
Except as set forth herein, the Company reserves the right, in its sole discretion, to modify or change the Payment Services and/or the Payment Services Terms or any part thereof at any time without prior notice to Customer. The Company may amend the Payment Services Terms by posting a revised version on the Company’s website found at https://www.mealticket.com/, which will be effective as of the date and time of posting. Customer is responsible for reviewing the Payment Services Terms on a regular basis. Customer’s access to and use of any of the Payment Services following the posting of an amendment constitutes Customer’s consent to such amendments.
CUSTOMER WILL BE DEEMED TO HAVE ACCEPTED THESE PAYMENT SERVICES TERMS ON THE EARLIER OF THE DATE ON WHICH (I) CUSTOMER AGREES TO THEM BY ELECTRONICALLY INDICATING ACCEPTANCE; (II) CUSTOMER SUBMITS A MERCHANT APPLICATION ONLINE; OR (III) CUSTOMER ACCESSES OR USES ANY OF THE PAYMENT SERVICES THROUGH ANY MEANS. BY TAKING ANY OF THE ACTIONS IDENTIFIED IN (I), (II) OR (III) ABOVE, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT (A) CUSTOMER HAS REVIEWED, UNDERSTANDS, ACCEPTS AND AGREES TO BE LEGALLY BOUND BY ALL PARTS OF THESE PAYMENT SERVICES TERMS; (B) CUSTOMER AGREES TO BE LEGALLY BOUND BY ALL PARTS OF THE PSP MERCHANT AGREEMENT (as defined below); AND (C) CUSTOMER REPRESENTS AND WARRANTS THAT THE PERSON ACCEPTING THESE PAYMENT SERVICES TERMS OR ACCESSING OR USING THE PAYMENT SERVICES (i) HAS THE LEGAL CAPACITY AND AUTHORITY TO AGREE TO THESE PAYMENT SERVICES TERMS ON BEHALF OF CUSTOMER, AND (ii) HAS THE AUTHORITY TO MAKE PURCHASE DECISIONS ON BEHALF OF, ACT FOR, AND BIND THE CUSTOMER; AND (D) CUSTOMER ACCEPTS AND AGREES TO BE BOUND BY THESE PAYMENT SERVICES TERMS AND THE PSP MERCHANT AGREEMENT.
IF YOU DO NOT HAVE THE LEGAL CAPACITY AND AUTHORITY TO AGREE TO THESE PAYMENT SERVICES TERMS AND THE PSP MERCHANT AGREEMENT ON BEHALF OF CUSTOMER; OR YOU DO NOT HAVE THE AUTHORITY TO MAKE PURCHASE DECISIONS ON BEHALF OF, ACT FOR, AND BIND CUSTOMER; OR CUSTOMER DOES NOT AGREE TO ANY OF THE TERMS, CONDITIONS AND PROVISIONS IN THESE PAYMENT SERVICES TERMS OR THE PSP MERCHANT AGREEMENT, CUSTOMER SHOULD NOT SUBSCRIBE TO, SUBMIT A MERCHANT APPLICATION FOR, OR ACCESS OR USE ANY OF THE PAYMENT SERVICES.
Following Customer’s acceptance of these Payment Services Terms and the PSP Merchant Agreement, and after necessary approvals have been given, Customer will be granted the right to use the Payment Services solely for business purposes to process Transactions on behalf of Customer’s clients that purchase Customer Products and Services (“Purchasers”). Additionally, by accepting these Payment Services Terms, Customer authorizes the Company to facilitate (i) PSP’s submission and/or processing of Transactions on Customer’s behalf; and (ii) PSP’s access to and use of all data and information related to Customer’s use of the Payment Services.
All capitalized terms used in these Payment Services Term that are not expressly defined herein have the same meaning given to them in the Master Services Agreement (“MSA”). The MSA together with the Order Form, any exhibits or addenda attached thereto, these Payment Services Terms and any separate SOW collectively constitute the “Agreement” between the Company and Customer.
The following definitions apply to these Payment Services Terms where capitalized terms are not otherwise defined in the text of these Payment Services Terms or the MSA.
“Acquirer” means a financial institution that is authorized by a Card Brand to enable the use of a Payment Method by accepting Transactions from Customer on behalf of the Card Brands, routing these to the Card Brands or Issuing Banks and collecting and settling the resulting funds to the Customer.
“Authorization” means the process whereby a Purchaser (or Customer on Purchaser’s behalf) requests permission for a Payment Method to be used for a particular purchase of Customer Product or Service.
“Business Day” means a day on which banks are open for business in the applicable territory other than a Saturday, Sunday or holiday.
“Capture” means the confirmation by Customer to Acquirer that a Transaction for which it received an Authorization is to be executed and the account of the Purchaser is to actually be charged for the Transaction. “Capturing” and “Captured” shall have the corresponding meanings.
“Card” means any form of credit card or debit card which may be used by a Purchaser to carry out a Transaction on such Purchaser’s Card account.
“Card Brands” means Visa, Mastercard or comparable parties providing Cards.
“Card Brand Rules” means the collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Card Brands, as may be amended or supplemented over time and with which Customer must comply when using the relevant Payment Method.
“Cardholder” means any person who is issued a Card and possesses and uses a Card and, where required on the Card, whose signature appears on the Card as an authorized user.
“Chargeback” means a Transaction which is successfully charged back on request of the Purchaser or the Issuer pursuant to the relevant Card Brand Rules, resulting in a cancellation of a Transaction in respect of which the Customer has been paid or was due to be paid. If a Chargeback occurs for a Transaction in respect of which the Customer already received Settlement of the related funds, this results in the unconditional obligation for Customer to immediately return the Settled funds to PSP, to enable PSP to return such funds to the Card Brand or Acquirer.
“Customer Products and Services” means the products and/or services which Customer is selling and for which Transactions are processed.
“Fine” means any fine, uplifted service fee or other additional payment imposed by the Card Brands, PSP, any other Partner, Acquirer, and/or regulatory agencies as a result of situations such as, but not limited to, (i) violation of Card Brand Rules or any applicable law or regulation by Customer or caused by Customer; (ii) Transactions processed or presented for processing by Customer; (iii) excessive fraud levels or excessive Chargeback levels related to Transactions; (iv) Customer’s breach of the PSP Merchant Agreement and/or other PSP terms and conditions; or (v) other acts or omissions of Customer, its employees, agents, or representatives.
“Issuer” or “Issuing Bank” means an institution that issues Payment Methods to the Purchaser whose name appears on the Card or bank account statement as the Issuer and or who enters into a contractual relationship with the Purchaser with respect to the Payment Method.
“Merchant Application” means the collection of application materials and information submitted by Customer to the Company and/or PSP to obtain approval to use the Payment Services.
"Partner” means PSP and any other processors, Acquirers and other entities providing products and/or services to the Company with respect to the Payment Services.
“Payment Details” means the information that makes up a Transaction message which needs to be submitted to enable the processing of the Transaction and to perform fraud checks, including details regarding the Card (such as Card number, security code, expiration date, PIN), the Purchaser (such as name, zip code), relevant authentication details and the payment amount.
“Payment Method” means a method of enabling payments by Purchasers to Customer such as Cards, online and offline bank transfers and direct debits offered by the Card Brands.
“Payment Services Provider” or “PSP” means Adyen N.V.
“Payment Services Terms” means all provisions, terms and conditions set forth herein and in any schedules, exhibits, and appendices attached hereto, all of which are incorporated herein by reference, as they may be amended from time to time.
“PSP Merchant Agreement” collectively means the agreement between PSP and Customer for the provision of Payment Services to Customer including PSP’s Terms and Conditions agreed to in the application process as well as the terms of any other documents agreed or referred to in the application process (including PSP’s Prohibited and Restricted Products and Services List (available on https://www.adyen.com/legal/list-restricted-prohibited) that comprise the agreement entered into between PSP and the Customer for the provision of the Payment Services to Customer, including all schedules and other documents appended thereto by reference.
“Refund” means a (partial) reversal of a particular Transaction on the initiative or request of the Customer, whereby the funds are reimbursed to the Purchaser.
“Security Standards” means all rules, regulations, standards or guidelines adopted or required by the Company, Company’s Partners, the Card Brands, or the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Payment Details, including but not limited to the Payment Card Industry Data Security Standards (“PCI DSS”), the Payment Card Industry’s Payment Application Data Security Standard, Visa’s Cardholder Information Security Program, Discover’s Information Security & Compliance Program, American Express’s Data Security Operating Policy, MasterCard’s Site Data Protection Program, Visa’s Payment Application Best Practices, MasterCard’s Terminal Security program, and the Payment Card Industry PIN Entry Device Standard, in each case as they may be amended from time to time.
“Settlement” means the payment of amounts owed to Customer with respect to settlements received by PSP from Acquirers or Card Brands for Transactions validly processed for Customer, minus amounts for Refunds, Chargebacks, Fees and other amounts PSP may deduct or cause to be deducted pursuant to the PSP Merchant Agreement. “Settle” and “Settled” shall have the corresponding meanings.
“Settlement Account” means the bank account identified by Customer during the application process or thereafter as the account into which Settlement payments are to be deposited.
“Software” means the collective set of programs and data developed and/or operated by the Company as needed to provide the Subscription Services to Customers.
“Transaction” means an Authorization request of a Purchaser for a payment from the Purchaser to Customer submitted by Customer via the integrated Payment Services to PSP for a particular purchase of Customer Products and Services.
Customer acknowledges and agrees that Transactions will be processed and other Payment Services will be provided by PSP and are subject to the PSP Merchant Agreement. By agreeing to these Payment Services Terms, Customer is also agreeing to fully comply with the PSP Merchant Agreement.
As a condition of the Company enabling the Payment Services through PSP, and to comply with financial service laws and the rules of the Card Brand Rules, Customer must undergo a know your customer (“KYC”) background check. For this purpose, during Customer’s onboarding for the Payment Services via the Company’s website, Customer must provide requested information about itself and its activities including, without limitation, information regarding its owners, financial information, information regarding Customer Products and Services, other information PSP determines is needed, and Settlement Account information (collectively, the “Registration Information”). Customer unconditionally represents and warrants that all Registration Information it provides initially and thereafter is correct, complete, and up to date and hereby authorizes the Company to share Registration Information with its Partners to obtain permission for Customer to access and use the Payment Services and as otherwise may be required by the Card Brand Rules or by law. On an ongoing basis Customer will provide the Company with at least 3 Business Days prior written notice of any change in any Registration Information. Further, within 3 days of the Company’s request, Customer shall provide updated and/or supplemental Registration Information and supporting documentation.
Notwithstanding the foregoing, Customer shall provide the Company with at least 30 days’ prior written notice of its intent to change its trade name, its Customer Products and Services, or the manner in which it accepts Payment Methods. Customer will also provide the Company with advance (no more than 1 Business Day) written notice (i) of any adverse change in Customer’s financial condition; (ii) of any planned or anticipated liquidation or substantial change in the basic nature of Customer’s business; (iii) of any transfer or sale of a substantial part (25% or more in value) of Customer’s total assets; (iv) if Customer is the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding; or (v) of any change in the control or ownership (25% or more of the ownership interests ) of Customer or Customer’s parent (unless Customer or Customer’s parent is a corporation whose shares are listed on a national securities exchange or on the over-the-counter market). Customer will also notify the Company of any warrant of attachment, judgment, writ, execution or levy against any substantial part (25% or more in value) of Customer’s total assets not later than 1 Business Day after Customer becomes aware of any such warrant of attachment, judgment, writ, execution or levy. If the Company or PSP determines any of the foregoing changes are material to its relationship with Customer, PSP may refuse to process Transactions submitted subsequent to the change and the Company may terminate these Payment Services Terms on notice to Customer.
Customer hereby designates the Company as an authorized representative of Customer towards PSP with respect to the use by Customer of the Payment Services. Further, Customer authorizes the Company to access and use Customer’s data processed on the PSP Payment Services platform. In each of the instances in these Payment Services Terms where the Company has the right to cause certain events to occur or actions to be taken, Customer expressly agrees the Company has the authority to take the steps necessary to exercise such right including, without limitation, instructing PSP to cause such events to occur or take such actions on the Company’s behalf.
Customer shall not use the Payment Services for the sale of any product or services (i) that violates any applicable law or any Card Brand Rule; or (ii) that appears on PSP’s Prohibited and Restricted Services and Products List published at https://www.adyen.com/legal/list-restricted-prohibited. Customer may not resell the Payment Services to third parties.
Customer will clearly and conspicuously inform the Purchaser of Customer’s identity at all points of interaction, and Customer will not use the Payment Services to handle, process, or transmit funds for any third party. Customer shall only use the Payment Services in the pursuit of its trade, business, craft or profession. Customer shall only use the Payment Services to process “bona fide” Transactions, which are Transactions that (i) are between Customer and Purchasers; (ii) are for the sale of Customer Products and Services that Customer sells or Refunds related to such sales; (iii) are submitted on behalf of Customer and not a third party; (iv) are authorized by Purchasers, are legal, non-fraudulent or otherwise damaging to the Card Brands; and (v) to Customer’s knowledge are enforceable, collectible, and in full compliance with these Payment Services Terms, the Card Brand Rules and all applicable laws. Customer shall not submit a Transaction for any purpose other than a current Transaction, meaning Transactions shall not represent the collection of a dishonored check or the collection, transfer, or refinancing of any existing or prior debt or obligation. Customer shall not attempt to recharge a Purchaser for an item that has been the subject of a Chargeback by the Purchaser, even with the Purchaser’s consent. Customer shall not disburse or advance any cash (i) to a Purchaser (except as authorized by the Card Brand Rules); or (ii) to itself or any of its employees, agents, or other representatives in connection with a Transaction.
Customer is required to obtain an Authorization in accordance with these Payment Services Terms for each Transaction conducted through the Payment Services. PSP reserves the right to refuse to process any Transaction and/or Payment Details presented by Customer unless it includes a proper Authorization. At the time Customer accepts a Card for any Transaction, the Customer Products and Services shall have been provided or shipped or the services actually rendered to the Customer, except as specifically stated otherwise in Customer’s Order Form or otherwise approved in writing by PSP in advance. Customer shall use the Payment Services only for the purposes as agreed herein and in the PSP Merchant Agreement shall not perform or allow to be performed any action detrimental to the security or performance of the Payment Services.
Customer agrees that it shall not request or use any Payment Details for any purpose except to process payment for Customer Products and Services or to provide a Refund for Customer Products and Services previously sold, unless required or permitted by the Card Brand Rules. Customer shall fully comply with the Card Brand Rules that prohibit Customer from copying, capturing or intercepting Payment Details that are provided by Purchasers in relation to payments to be processed via the Payment Services. This rule is strictly enforced by the Card Brands, and violation of the rule will result in high Fines being assessed. Additionally, Customer: (i) shall not use Payment Details for any purpose that it knows or should know to be fraudulent or in violation of any Card Brand Rules; (ii) shall not sell, purchase, provide or exchange in any manner or disclose Payment Details to anyone other than the Company, its Partners, or any Card Brand, or in response to a government request; and (iii) will be compliant with the Security Standards, including PCI DSS, and will cooperate in a forensic investigation if so required. If the Company or PSP has reason to believe Customer has violated any of the foregoing restrictions or is otherwise misusing Payment Details, the Company has the right to instruct PSP, and PSP has the right, to suspend Customer’s access to the Payment Services and/or to suspend, or cause its Partners to suspend, the processing of Transactions and Settlement.
Customer will comply with the personal data protection laws for the Customer’s country of origin (and any applicable state or provincial jurisdiction) and of those countries in which the Customer offers its Customer Products and Services from time to time, in particular when processing and sending personal data in the context of using the Payment Services and submitting Transactions. Customer shall implement appropriate measures to protect personal data against misuse.
Customer agrees to fully comply with all provisions, terms and conditions in the PSP Merchant Agreement, the Card Brand Rules, Security Standards, applicable laws, applicable requirements of our Partners, and such other procedures as the Company and/or its Partners may from time to time require relating to the Payment Services, all as may be modified from time to time. Customer shall adopt adequate technical and procedural measures to ensure such compliance at all times.
Customer is responsible for regularly reviewing the current Card Brand Rules and relevant changes to laws applicable to its Customer Products and Services and business practices to ensure its compliance therewith. Where Customer finds the Card Brand Rules (including any Fine provision) to be unacceptable, Customer is free to stop using the relevant Payment Method. In the event Customer ceases using a Payment Method, the Card Brand Rules, these Payment Services Terms, and the PSP Merchant Agreement remain applicable to previously processed Transactions related to such Payment Method.
In consideration for access and use of the Payment Services, Customer agrees to pay the Payment Services fees, charges and other amounts itemized on the Order Form, as may be modified from time to time in accordance with these Payment Services Terms (collectively, the “Payment Services Fees”). Except as may be set forth on the Order Form, the Company has the right to modify and/or add Payment Services Fees by providing Customer with advance written notice delivered via email, through the Customer Account, or on an invoice. Customer’s continued use of the Payment Services following the effective date of the change or addition constitutes Customer’s agreement to the change in Payment Services Fees.
Customer hereby authorizes the Company to instruct PSP to (i) withhold all Payment Services Fees and any taxes thereon owed by Customer to the Company from Customer’s Settlements; and (ii) immediately pay such withheld sums directly to the Company. Any process for the payment of Payment Services Fees other than the one described above must be agreed to by the Company and Customer in writing. In the event Settlements are insufficient to pay Payment Services Fees and taxes due from Customer to the Company, Customer hereby authorizes PSP to collect Fees, taxes and other amounts due to PSP using any of the methods described in Section 2.3 of the MSA including, without limitation, to debit any unpaid amounts from Customer’s Settlement Account. If such debits and other actions are insufficient to satisfy any amounts owed by Customer, Customer shall pay all outstanding amounts due to the Company within 3 Business Days of the Company’s issuance of an invoice to Customer for the amounts due. Payment Services Fees and taxes are not refundable. In addition to the foregoing, Customer hereby authorizes the Company to instruct PSP to withhold any other unpaid Fees and any taxes thereon from Customer’s Settlements and to immediately pay such withheld sums directly to the Company. The Company is also entitled to pursue all other legal and equitable remedies available to it to collect amounts owed to the Company by Customer including, without limitation, unpaid Payment Services Fees, Fines, Chargebacks and other indemnification amounts.
PSP will settle valid Transactions into Customer’s Settlement Account, subject to the withholding of Payment Services Fees and taxes and any other amounts as permitted by these Payment Services Terms and/or the PSP Merchant Agreement. Customer shall provide Settlement Account information during the on-boarding process. Any changes to Settlement Account information thereafter must be delivered to the Company in writing at least 3 Business Days prior to such change taking effect. Neither the Company nor PSP has any obligation to, and will not, review Customer’s Settlement instructions for accuracy or completeness. Customer hereby represents and warrants that such instructions are accurate, complete, and current, and PSP is authorized to rely on such instructions. Customer’s Settlement instructions will be binding on Customer, and Customer hereby authorizes the Company to deliver Customer’s Settlement instructions to Partners as necessary to facilitate Settlement.
The Company reserves the right to cause its Partners to withhold or delay Settlement of Transactions if they are Captured but suspected to be fraudulent, related to illegal activities, are subject to Refund, or are likely to become subject to a Chargeback until satisfactory completion of investigation by PSP, its other Partners, Card Brands, the Company or a third party nominated by any of these parties. Customer will give its full cooperation to any such investigation. No interest will be due on such held amounts.
Customer shall be fully liable for all Fines directly or indirectly related to Customer’s use of the Payment Services and/or arising as a direct or indirect result of acts or omissions of Customer, its employees, agents, or representatives. To the extent the Company is required to or does pay any Fines related to Customer, Customer hereby authorizes the Company to instruct PSP to (i) withhold all such Fines from Customer’s Settlements; and (ii) immediately pay such withheld sums directly to the Company. In the event Settlements are insufficient to reimburse the Company for any Fines paid, Customer shall pay all outstanding amounts due to the Company within 3 Business Days of the Company’s issuance of an invoice to Customer for the amounts due. When requested by the Company, Customer shall immediately and fully cooperate (i) with any investigation into circumstances that may create potential expose to Fines that could be levied against the Company or any of its Partners; and (ii) with proposed remedies.
Customer is fully and unconditionally liable for the amount of any and all Chargebacks (and may have conditional liability for such Chargebacks prior to their final adjudication pursuant to the Card Brand Rules), regardless of whether the Chargeback complies with the Card Brand Rules. Customer shall take all reasonable steps to avoid Chargebacks by, for instance, delivering Customer Products and Services in accordance with Purchaser’s orders and applicable laws and taking all reasonable actions to resolve disputes with Purchasers.
If there are pending Chargebacks or other risk of liability to the Company, Customer hereby authorizes the Company to instruct, at Company’s discretion, PSP to delay Settlements or to pay Customer only a percentage of the Settlements otherwise due to Customer. Additionally, if the Company reasonably believes that a Chargeback is likely with respect to any Transaction, Customer hereby authorizes the Company to instruct PSP to withhold the amount of the potential Chargeback from Settlements until such time as: (i) a Chargeback is assessed due to a Purchaser complaint, in which case PSP (or the Company) will retain the funds if required to cover the Chargeback; (ii) the period of time under applicable law or regulation by which your Purchaser may dispute that the Transaction has expired; or (iii) the Company and/or PSP determines that a Chargeback on the Transaction will not occur.
In the event the Company determines, in its sole and exclusive discretion, that Customer is or is at risk of incurring an excessive amount of Chargebacks, related fees, Fines, penalties or other losses (collectively “Anticipated Losses”), Customer hereby authorizes the Company to instruct PSP, and hereby authorizes PSP, to establish controls or conditions governing Customer’s use of the Payment Services, including without limitation, by: (i) delaying Transaction Settlements; (ii) creating or increasing any Customer reserve in an amount reasonably determined by the Company and/or PSP to cover Anticipated Losses; or (iii) terminating or suspending Customer’s access to the Payment Services.
To the extent the Company is required to or does pay any Chargebacks related to Customer, Customer hereby authorizes the Company to instruct PSP to (i) withhold all such Chargebacks from Customer’s Settlements; and (ii) immediately pay such withheld sums directly to the Company. In the event Settlements are insufficient to reimburse the Company for any Chargebacks paid by the Company, Customer shall pay all outstanding amounts due to the Company within 3 Business Days of the Company’s issuance of an invoice to Customer for the amounts due.
When requested by the Company, Customer shall immediately and fully (i) cooperate with any investigation into circumstances that may create potential exposure to Chargebacks; (ii) promptly comply with all requests for information from the Company and/or PSP; and (iii) cooperate with proposed remedies, all at Customer’s expense. To that end, Customer hereby authorizes the Company and PSP to share information about a Chargeback with the Purchaser, the Purchaser’s financial institution, Customer’s financial institution, and others as necessary in order to investigate and/or mediate a Chargeback. The Company and PSP reserve the right, upon notice to Customer, to charge a fee for mediating and/or investigating Chargeback disputes. Customer may not ask Purchasers to waive their dispute rights.
Customer has the exclusive responsibility to calculate, charge, collect and remit state and other taxes applicable to Customer Products and Services sales. Customer is not permitted to add any taxes or other amounts to Transactions unless applicable law expressly allows or requires Customer to impose such taxes or amounts, any or all of which shall be included in the Transaction and shall not be collected separately.
Company or PSP may have tax reporting responsibilities in connection with the Payment Services such as an Internal Revenue Service Form 1099-K. Accordingly, Customer shall provide the Company with the appropriate taxpayer information and recertification thereof upon request. Customer shall be responsible for any penalties accruing based on the actions or inactions of Customer despite reasonable requests and/or notices from the Company and/or its Partners.
To the extent permitted by applicable law, Customer hereby grants the Company a security interest in, as well as setoff rights (and the right to instruct PSP to exercise such setoff rights) against, and assigns, conveys, delivers, pledges and transfers to the Company, as security for repayment of any obligations due by Customer to the Company under these Payment Services Terms, all of Customer’s right, title, and interest in and to all of the Settlement Proceeds, any other amounts due to Customer including any amounts held in reserve by PSP.
Without prejudice to any right to setoff granted above or setoff right to which the Company may be entitled to as a matter of law, the Company shall have the right, and Customer authorizes the Company, without presentation, demand, protest, notice of dishonor, or other notice of any kind, all of which are expressly waived by Customer, to take any of the following actions or to cause such actions to be taken on its behalf: (i) setoff any amounts or other liabilities owed to the Company by Customer under or in connection with these Payment Services Terms (regardless of whether such obligation is contingent, matured, or unmatured) against any amounts due to Customer from PSP, now or at any time in the future; or (ii) administratively freeze or direct any third party holding Settlements or any reserve to freeze all such accounts to allow the Company to protect its security interest, collection, charge and setoff rights as provided for in this section.
Customer remains solely responsible for obtaining all necessary permits, licenses and authorizations to sell the Customer Products and Services and for all customer service related thereto. Customer shall timely and appropriately manage all customer service issues including, without limitation, all Purchaser interactions, Customer Product and Service pricing, order fulfillment, order cancellation by Customer or Purchaser , returns, Refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with Customer personnel, policies or processes. Customer is responsible for all actions of its employees, agents and representatives with respect to customer service and otherwise.
Customer shall process all returns and provide Refunds and adjustments for Customer Products and Services in accordance with the Card Brand Rules and these Payment Services Terms. The Card Brand Rules require Customer to: (i) maintain a fair return, cancellation or adjustment policy; (ii) clearly disclose the return or cancellation policy to Purchasers at the time of purchase; (iii) not give cash refunds to a Purchaser in connection with a Transaction, unless required by law; and (iv) not accept cash or any other item of value for preparing a Transaction refund. If there are restrictions on Customer’s refund or exchange policies, proper disclosure would include wording that is prominently displayed such as “NO REFUND, EXCHANGE ONLY” and includes any special terms. Be aware that the Card Brand Rules may still allow the Purchaser to still dispute Transactions.
Any Transaction to credit a Purchaser’s Card must (i) correlate to an original sales Transaction from the Purchaser and not be related to a cash purchase of Customer Products and Services; (ii) represent a Refund for a prior Transaction using the same Card; (iii) not exceed the amount of the original sales Transaction, unless the excess represents the exact amount required to reimburse the Purchaser for shipping charges paid by the Purchaser to return merchandise; and (iv) not be more than 3 days following either: (a) a regulatory requirement granting a Purchaser’s right to a Refund; or (b) a non-disputed Purchaser request. Customer shall not accept any payment from a Purchaser as consideration for issuing a Refund.
These Payment Services Terms are effective on the earlier of the date Customer agrees to them by electronically indicating acceptance or the date Customer first accesses or uses the Payment Services and, unless otherwise agreed in writing, continue for an indefinite period until terminated pursuant to the provisions herein.
The Company or Customer may terminate these Payment Services Terms by giving at least 2 months’ written notice to the other party. Such notices shall be given in accordance with the Notice provisions in the MSA. Notwithstanding the foregoing or any other term herein to the contrary, any termination of the PSP Merchant Agreement shall operate to concurrently and automatically terminate these Payment Services Terms. Further, these Payment Services Terms shall automatically and immediately terminate if PSP’s registration with the Card Brands is terminated, Acquirer ceases to be an Acquirer for any reason.
In addition to the termination rights set forth above of elsewhere herein, the Company may terminate these Payment Services Terms, instruct PSP to cease processing Transactions and/or stop Settlement of Transactions to Customer, and/or suspend Customer’s access to and use of the Payment Services immediately, in part or in whole if:
FOR CLARITY, THE COMPANY’S WARRANTY DISCLAIMERS IN SECTION 4 OF THE MSA SHALL APPLY TO THE PAYMENT SERVICES.
WITHOUT LIMITING THE LIMITATION OF LIABILITY PROVISIONS AT SECTION 5 OF THE MSA, ALL OF WHICH APPLY TO THE PAYMENT SERVICES AS WELL AS THE OTHER SERVICES, THE FOLLOWING CLARIFICATIONS AND LIMITATIONS SHALL ALSO APPLY TO THE PAYMENT SERVICES. THE COMPANY SHALL ONLY BE LIABLE FOR ITS OWN ACTS OR OMISSIONS AND NOT FOR ANY ACTS OR OMISSIONS OF THIRD PARTIES. THIS EXCLUSION EXPRESSLY APPLIES TO ACTS OR OMISSIONS OF CARD BRANDS, PSP AND THE COMPANY’S OTHER PARTNERS AND FOR EVENTS OR ACTIVITIES ORIGINATING OUTSIDE THE SYSTEMS OF THE COMPANY (SUCH AS INTERNET DISTURBANCES OR MALFUNCTIONS IN THIRD PARTY SYSTEMS), EXCEPT IN CASE SUCH EVENTS WERE CAUSED BY THE INTENTIONAL WRONGDOING OR GROSS NEGLIGENCE OF THE COMPANY.
BY WAY OF EXAMPLE AND NOT AS A LIMITATION, THE COMPANY SHALL NOT BE LIABLE FOR, AND CUSTOMER EXPRESSLY RELEASES THE COMPANY FROM, ALL LIABILITY, DAMAGES, COSTS, LOSSES AND EXPENSES ARISING DIRECTLY OR INDIRECTLY FROM:
In addition to Customer’s indemnification obligations at Section 6.2 and elsewhere in the MSA, Customer shall indemnify and hold the Company, its parent, subsidiaries, affiliates, officers, managers, directors, shareholders, members, employees, agents and representatives harmless from and against all claims, losses, liabilities, damages, penalties, judgments, taxes applicable to Customer Products and Services, and expenses (including, without limitation, collection and attorneys’ fees) arising out of or in connection with: (i) breach of any warranty, covenant or agreement or any misrepresentation by Customer under these Payment Services Terms or the PSP Merchant Agreement; (ii) violation of any applicable laws and/or the Card Brand Rules applying to Customer and/or the Payment Methods used by Customer; (iii) Customer’s, or its employees’, agents’, or representatives’ negligence or willful misconduct; (iv) Customer’s, or its employees’, agents’, or representatives’ acts or omissions in connection with Transactions, Customer disputes, customer service related issues, Customer’s business or operations, or otherwise arising from Customer’s provision of Customer Products and Services to Purchasers; (v) Customer’s use of the Payment Services; or (vi) any third party indemnifications the Company is obligated to make, or liabilities or other obligations the Company may incur, as a result of Customer’s acts or omissions (including, without limitation, indemnifications of or liabilities to, PSP, any other Partner or Card Brand or Issuer). For clarity, Customer’s indemnification obligations expressly include, but are not limited to, claims by Card Brands or Partners for payments of Fines and any other sums withheld from amounts otherwise due to the Company or PSP as a result of Customer’s acts, omissions, liabilities and obligations.
21.1 Order of Precedence. In the event of an inconsistency between any provision in these Payment Services Terms and the Card Brand Rules, the Card Brand Rules will govern. In the event of any inconsistency between these Payment Services Terms and MSA, these Payment Services Terms will govern.
21.2 Section Headings. The section headings are for convenience only and do not define, limit, or describe the scope or intent of these Payment Services Terms.
21.3 PSP Approval. Customers’ use of the Payment Services is conditioned on Customer being approved by PSP and shall be subject to Customer agreeing to the PSP Merchant Agreement and these Payment Services Terms.
21.4 Assignment. The Company is entitled to, at any time, assign, novate or otherwise transfer the Payment Services Terms to a third party, without the prior consent of Customer. Customer shall not assign or transfer its rights or delegate its responsibilities under these Payment Services Terms without the Company’s prior written consent. Failure to obtain the Company’s consent may result in a termination of these Payment Services Terms. Any permitted assignee or successor entity must provide such additional information and execute such additional documentation or take any further actions as the Company and PSP may request in order to ensure continued processing of Transactions in accordance with these Payment Services Terms.
21.5 Amendments. The Company may amend these Payment Services Terms in its sole discretion as set forth in Section 10.1 of the MSA.
21.6 Null Provisions. In the event any provision in these Payment Services Terms is determined to be invalid or unenforceable under any law, rule, or regulation, including any Card Brand Rule, such determination will not affect the validity or enforceability of any other provision of these Payment Services Terms. The parties shall take all steps to eliminate the provision declared invalid or unenforceable and to replace the same with a provision approaching, insofar as possible, the economic objective of the eliminated provision.
21.7 Notices. Written notice to the other party may be delivered by the methods set forth in Section 10.10 of the MSA.
21.8 Force Majeure. Customer is not excused from its indemnification obligations or Customer’s obligations and liabilities for Chargebacks, Refunds, unfulfilled purchases of Customer Products and Services due to failure or malfunction of Customer’s equipment, disruptions of Internet service through intermediate carriers, any acts of God, explosions, vandalism, cable cut, storms, fires, floods or other catastrophes, pandemics, power failure, national emergencies, insurrections, riots, wars, strike, lockouts, boycotts, work stoppages or other labor difficulties, or any law, order, regulation or other actions of any governmental authority, agency, instrumentality, or of any civil or military authority.
21.9 Survival. In addition to the MSA provisions that survive termination, the provisions herein which, by their nature, are intended to survive termination of these Payment Terms of Service (including, without limitation, obligations to pay Payment Services Fees, taxes obligations, Chargeback liability and collection rights, setoff rights, responsibility for Customer Products and Services and customer service, indemnification obligations and limitations of liability) shall survive any such termination of these Payment Services Terms.
110331339.6 0205078-00001
