Chase Integrated Payments Terms of Service – United States
Dated: February 8, 2024
These Terms of Service are a legal agreement (this
“Agreement”) between you (“user,”
“you” or “your”) and WePay, Inc., a Delaware
corporation (“WePay,” “we,”
“our” or “us”). WePay is a subsidiary of JPMorgan Chase Bank, N.A. (“Chase”). As used in this Agreement, the “Service” refers to
Chase Integrated Payments payment processing services provided by
WePay. Your use of the Service constitutes confirmation of your acceptance
and agreement to the terms of this Agreement.
The Service may be provided to you directly through a point of sale device or through integrations with websites or applications (“Platforms”). The Platform through which you access the Service might have its own terms of service and privacy policy that apply to you. This Agreement incorporates by reference all policies, notices, and other content that appear on our websites at www.integratedpayments.chase.com and www.wepay.com as well as policies, notices, and other content concerning the Service that appear on the Platform’s website (collectively, the “Website”).
1. Merchants Using Chase Integrated Payments
As used in this Agreement, “Merchant” refers to a
person who uses the Service to receive payments by card and
bank transfer. These transactions are between Merchants and persons
who pay them (“Purchasers”). Neither WePay, nor
any Chase subsidiary or affiliate, is a party to these transactions. The Service may only be used
for business purposes.
For payments by card, WePay
initiates the payment process by providing information to
Paymentech, LLC, a Delaware limited liability company
(“Paymentech”). Paymentech is a subsidiary of
Chase, which is a member of Visa U.S.A., Inc., Visa International
(“Visa”), MasterCard International Incorporated
(“MasterCard”), American Express Travel Related Services
Company Inc. (“American Express”), or other payment card
networks, associations, or companies (collectively, the “Card
Networks”). Paymentech in its capacity as an authorized
processor of transactions and Chase in its capacity as a member of
several Card Networks are referred to collectively as the
“Bank”. WePay shall pay, or cause the Bank to pay,
Merchants under both (a) the provisions of its agreement with WePay,
and (b) the by-laws, operating regulations and all other rules,
policies and procedures of the Card Networks as in effect from time
to time (the “Card Network Rules”), that make WePay responsible for instructing settlement with you as a
Merchant. For payments by bank transfer, WePay initiates the payment
process by providing information to Chase through the National
Automated Clearing House (“ACH”) in accordance with all
applicable laws, regulations and The Electronic Payments Association
Operating Rules and Guidelines (“ACH Rules”), each as in
effect from time to time.
Merchants must register for the Service through Chase.com or the Platform. To register, a Merchant
provides information, including email address, user ID and a
self-selected password, in order to create an account
(“Account”). You are responsible for maintaining the
secrecy and security of your Account access credentials and for any
use of or action taken under them.
The Service requires
additional information to identify each Merchant that opens an
Account, such as street address, telephone number, tax
identification number (such as Social Security Number), date of
birth and beneficial ownership information (where applicable). WePay may
receive this information from integration with Platforms. You agree
to provide supplemental documentation upon request (including but
not limited to: articles of incorporation, passports, driver’s
license or a business license and financial statements). You agree
that the information provided is complete and accurate to the best
of your knowledge and authorize WePay, directly or through third
parties, to make inquiries or verify that this information is
accurate (for example, through social media or third party
databases). You specifically authorize WePay to obtain your business
credit reports from time to time and use them in connection with
establishing and maintaining your Account. You agree to promptly notify us if there are any significant
changes to the nature of your business (including changes to any
trade name(s)), product lines or services or in the event any person
or entity acquires any beneficial ownership interest in you which is
twenty-five percent (25%) or more.
You must provide
accurate and complete information to WePay. Specifically, when
you register, you must demonstrate that you can receive email at the
email address you provide. If you do not confirm your email
address, then (a) fourteen (14) days after you accept your first
payment, you will not be able to accept additional payments, and (b)
thirty (30) days after you accept your first payment, the Bank will
refund to your Purchasers all of the payments you have accepted.
In addition, in order to settle the payments you have accepted
to your bank account or other payment instrument, you must provide
to WePay identity and settlement information (such as your bank
account details). If you do not provide identity and
settlement information, then (a) thirty (30) days after you accept
your first payment, you will not be able to accept additional
payments, and (b) unless you provide identity and settlement
information promptly, the Bank will refund to your Purchasers all of
the payments you have accepted. Finally, if at any time WePay
is unable to verify that the identity information you provided is
correct and up-to-date, then, unless you provide verifiable
information promptly, (a) your Account will be disabled so that you
cannot accept additional payments, and (b) the Bank will refund to
your Purchasers all of the payments that you have accepted but not
settled. Neither the Bank nor WePay will have any liability to
you for your inability to accept payments or for refunds pursuant to
this paragraph.
The Service allows businesses (including sole proprietorships) and non-profit organizations to register if they are located in one of the 50 United States or the District of Columbia. Residents of Puerto Rico, U.S. territories (such as Guam), and U.S. military bases are not supported. A Merchant must be either a United States citizen, a legal permanent resident of the United States, a United States federal, state, or local government agency, an entity issued a valid Individual Taxpayer Identification Number (ITIN) number issued by the U.S. Internal Revenue Service or a United States business or nonprofit organization having a physical presence in the United States and authorized to conduct business by the state in which it operates. A user who opens an Account must be eighteen (18) years of age or older. You may open an Account for an entity only if it is legitimate and you have the authority to enter into this Agreement on its behalf. Your acceptance of this Agreement constitutes acceptance by the entity.
USA PATRIOT ACT: To help prevent the funding of terrorism and money laundering activities, Federal law and internal policies require us to obtain, verify, and record information that identifies each person who opens an account. In order to comply with these requirements, we will ask for your business name, physical address, and government identification number in order to verify your identity.
2. Limitations on Responsibility
Neither WePay, the Bank nor any other third party makes any
representations or guarantees regarding Merchants or Purchasers
utilizing the Service. Use of our Service in no way represents any
endorsement by WePay or any Card Network, of a user’s
existence, legitimacy, ability, policies, practices, or beliefs.
WePay does not have control of, or liability for, goods or services
that are paid for with the Service. Merchant acknowledges and
agrees that receipt of Purchaser information via the Service does
not indicate that the Purchaser’s payment instrument has
sufficient available funds, that a transaction will be authorized or
processed, or that the transaction will not later result in a
chargeback or reversal.
A nonprofit organization may use the Service to accept payments as a
Merchant. Not all nonprofit organizations are tax-exempt, and not
all contributions to nonprofit organizations are tax-deductible.
Nonprofit organizations are responsible for correctly classifying
themselves and their transactions, issuing any required reports and
receipts, and making any required tax or other filings. Contributors
are responsible for verifying the status of organizations to which
they donate and reporting their donations correctly for tax and
other purposes. WePay specifically disclaims any liability in this
regard.
If we (or the Platform) sell or otherwise provide you with terminals or other equipment, (1) we (or the Platform) are either the equipment reseller or the manufacturer, (2) we (or the Platform) will give you pricing and any additional terms (including any manufacturer’s warranty) before purchase, and (3) by accepting the equipment, you agree to the pricing, the warranty and any related additional terms.
3. Our Fees
WePay deducts processing fees from each transaction settled to you. Additional fees for chargebacks, refunds, ACH returns and other exceptions fees may apply, as well as a $25.00 research fee if an Account is deemed abandoned under Section 20 below.
Merchants must also reimburse WePay for “Payment Network
Liabilities” as defined below in Section 6, Our Role and Your
Responsibilities. Processing fees, exceptions fees, reimbursements
and other amounts due to WePay may be netted against funds due to
Merchant or debited from the Merchant’s bank account or other
payment instrument associated with the Merchant’s Account.
Merchant agrees to pay the fees for the Service that are posted from
time to time or otherwise disclosed to you.
Subject to the terms of this Agreement, we reserve the right to change our fees. WePay will try, but is not required, to give you 30 days’
notice before the effective date of any change in a fee. By
continuing to use the Service, you consent to the change in fees. To
withdraw your consent, you must close your Account.
4. E-Sign Disclosure and Consent
Electronic Delivery
By accepting this Agreement, you agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, “Communications”) that we provide in connection with your Account and your use of the Service. Communications include but are not limited to:
We will provide these Communications to you by emailing them to you at the primary email address listed in your Account registration, by texting them to you at the primary telephone number listed in your Account registration, by emailing or texting you a link or instructions how to access them on a website, or (if permitted by law) by posting them on the Website. We may also provide certain Communications (such as federal and state tax statements) by U.S. mail to the street address listed in your Account registration. Communications are considered received by you within 24 hours of the time they are emailed to you, posted to the Website, or mailed to you. You further agree that your electronic signature has the same effect as your manual, physical signature.
Hardware and Software Requirements
In order to access and retain electronic Communications, you will need the following computer hardware and software:
By giving your consent, you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records. It is important for you to retain copies of Communications because they may not be accessible in your Account at a later date.
How to Withdraw Your Consent
You may withdraw your consent to receive Communications electronically by contacting Customer Support, including by writing to “WePay, Inc., 3223 Hanover St., Palo Alto, CA 94304.” If you withdraw your consent to receive Communications electronically, WePay may deny your registration for an Account, restrict or close your Account, or charge you additional fees for paper copies.
Requesting Paper Copies of Electronic Communications
If, after you consent to receive Communications electronically, you would like a paper copy of a Communication previously sent to you, you may request a copy within 180 days of the date the Communication was provided to you by contacting Customer Support as described above. We will send a paper copy to you by U.S. mail to the street address on file in your Account. You understand and agree that WePay may charge you an exceptions fee for each paper copy of a Communication.
Updating Your Contact Information
It is your responsibility to keep your primary email and street address up to date. You understand and agree that if WePay
sends you a Communication but you do not receive it because your
primary email or street address on file is incorrect, out of date,
blocked by your service provider, or you are otherwise unable to
receive electronic Communications, WePay will be deemed to have
provided the Communication to you. Please note that if you use a
spam filter that blocks or re-routes emails from senders not listed
in your email address book, you must add WePay to your email address
book so that you will be able to receive the Communications we send
to you.
If your email address becomes invalid such that
electronic Communications sent to you by WePay are returned, then
WePay may close your Account, and you will not be able to transact
any activity using your Account until we receive a valid,
functioning primary email address from you.
5. Prohibited Merchants and Activities
By registering as a Merchant, you also confirm that you are not one of the persons listed below and you will not accept payments or use the Service in connection with the activities, items or services set forth below.
You agree to provide additional documentation upon request for risk assessment purposes and to verify that you have not engaged in prohibited activity.
If WePay determines that you have received funds resulting from
fraud or a prohibited activity, those funds may be frozen, returned
to the Purchaser, or seized.
In addition, if we
reasonably suspect that your Account has been used for an
unauthorized, illegal, or criminal purpose, you give us express
authorization to share information about you, your Account, your
access to the Service, and any of your transactions with law
enforcement.
6. Our Role and Your Responsibilities
The Service collects, analyzes and relays information generated in connection with payments between Purchasers and Merchants. You authorize WePay to provide this information to the Bank in order for the Bank to facilitate payments from Purchasers to Merchants through the Card Networks or the ACH, as applicable. WePay instructs the Bank to conduct the settlement of card transactions and ACH transactions to Merchants.
WePay has entered into agreements with the Card Networks and the Bank. You are not a third-party beneficiary of these agreements. Each of the Card Networks is a third-party beneficiary of this Agreement and has beneficiary rights, but not obligations, and may enforce this Agreement against you. Some of the Card Networks may require a direct agreement with you. If you are required to enter into such an agreement and decline to do so, we may suspend or terminate your Account.
You acknowledge that, if you receive payments from American Express exceeding the threshold specified by American Express, you will be converted to a direct card acceptance relationship with American Express and, upon conversion, you will be bound by the then-current American Express Card acceptance agreement and American Express will set the discount and other fees payable by you for American Express Card acceptance.
If you receive payments from any Card Network exceeding the threshold specified by that Card Network, you agree that (i) Paymentech shall be a third party beneficiary of all of WePay’s rights under this Agreement and (ii) this Agreement shall be deemed the Commercial Entity Agreement as described in the Card Network Rules.
Furthermore, you must abide by the applicable Card Network Rules
and ACH Rules. For example, where you accept payment cards on your
website, you will display each card’s logo with equal size and
prominence, and you shall not display a preference for, or
discriminate against, one card brand over another. If you are using
our subscriptions feature, you agree that it is your responsibility
to comply with applicable laws, including the Electronic Funds
Transfer Act (Regulation E), including by capturing your
customers’ agreement to be billed on a recurring basis.
Notwithstanding WePay’s assistance in understanding the Card
Network Rules and ACH Rules, you expressly acknowledge and agree
that you are assuming the risk of compliance with all provisions of
the Card Network Rules and ACH Rules, regardless of whether you have
possession of those provisions. You agree to reimburse us and
the Bank for all fines, fees, penalties, liabilities, or other
charges or assessments by a Card Network, the ACH or other payment
network relating to your actions or your transactions
(“Payment Network Liabilities”). The Card Networks
make excerpts of their respective Card Network Rules available on
their websites (including
www.usa.visa.com ,
www.mastercard.com ,
www.americanexpress.com and
www.discover.com ). Exhibit A to this Agreement sets forth certain specific requirements of
the American Express Merchant Regulations, US. We can provide you
with excerpted provisions of the ACH Rules upon your request.
7. Your ACH Payment Authorization
You authorize WePay and the Bank to initiate electronic ACH debit and credit entries to each bank account that you set up on the Website, and to initiate adjustments for any transactions credited or debited in error. You agree to be bound by the ACH Rules and you agree that all ACH transactions that you initiate will comply with all applicable laws. Your authorization will remain in full force and effect until you notify us that you revoke it by contacting Customer Support or by closing your Account. You understand that WePay requires a reasonable time to act on your revocation, not to exceed five (5) business days.
You authorize WePay to instruct the Bank to hold, receive, disburse and settle funds on your behalf. Subject to this Agreement, you also authorize WePay to instruct the Bank to debit or credit any bank account or other payment instrument that you link to your Account, to initiate adjustments for any transactions credited or debited in error, as well as for chargebacks, reversals, or claims in accordance with this Agreement, the Card Network Rules and ACH Rules.
WePay may use Plaid, Inc. (“Plaid”) to gather your data from financial institutions. When you set up a bank account on the Website and input your online banking credentials for instant verification, you are granting Plaid the right, power and authority to access and transmit your personal and financial information from your financial institution. You agree to your personal and financial information being transferred, stored, and processed by Plaid in accordance with the Plaid Privacy Policy.
8. Accepted Forms of Payment
The Service supports most domestic and international credit, debit, prepaid or gift cards with a Visa, MasterCard, American Express or Discover logo. We may add or remove support for certain payment cards at any time without prior notice. We may elect only to process cards that receive an authorization from the applicable issuer. You agree to accept all of the cards issued by Card Networks that the Service supports in accordance with the terms of this Agreement.
Depending on the Website integration,
9. Sharing Information
We may share some or all of the information about you and your
transactions with the Bank, the Card Networks, and our other service
providers (and their respective affiliates, agents, subcontractors,
and employees), who may use this information to perform their
obligations under their agreements with WePay, to operate and
promote their respective networks, to perform analytics and create
reports, to prevent fraud, and for any other lawful purpose.
American Express and other Card Networks may use your name, address,
and website address (URL) in any media from time to time. At
any time, WePay, the Bank, the Card Networks or our other service
providers may conclude that you will not be permitted to use the
Service.
You agree that WePay is permitted to contact and
share information about you and your Account with the Bank, the Card
Networks, other financial institutions, and government agencies.
This includes sharing information (a) about your transactions for
regulatory or compliance purposes, (b) for use in connection with
the management and maintenance of the Service, (c) to create and
update their customer records about you and to assist them in better
serving you, (d) for use in connection with their agreement with us,
to operate and promote their business, perform analytics and create
reports, and for any other lawful business purpose, and (e) to
conduct risk management.
10. Settlement Schedule
WePay will instruct the Bank to settle funds to the
Merchant’s bank account or other payment instrument according
to the schedule the Merchant selects (daily, weekly, or monthly).
Merchants may request ad-hoc settlement at any time. If the
Bank cannot transfer the funds to the Merchant’s bank account
or other payment instrument (due to inaccurate or obsolete bank
account information entered by the Merchant, or for any other
reason), WePay may instruct the Bank to refund the funds to the
Purchaser or escheat them pursuant to Section 20 below.
Neither the Bank, WePay nor the Purchaser will have any
liability to Merchant for funds so refunded or escheated.
Settlements
to a bank account or other payment instrument may be limited or
delayed based on your perceived risk and history with the Service.
Should WePay or the Bank need to conduct an investigation or resolve any
pending dispute related to your Account, WePay may instruct the Bank
to defer settlement or restrict access to your funds for the entire
time it takes us to do so. The Bank may also defer settlement or
restrict access to your funds as required by law or court order, or
if otherwise requested by law enforcement or governmental entity.
WePay may respond to and comply with any writ of attachment, lien,
levy, subpoena, warrant, or other legal order (“Legal
Order”). WePay may instruct the Bank to deliver or hold any
funds or any information as required under such Legal Order. Neither
WePay nor the Bank is responsible for any losses that you may incur
as a result of our response or compliance with a Legal Order.
Furthermore,
if WePay or the Bank suspects future chargebacks or disputes as a
result of transactions to your Account, WePay may instruct the Bank
to defer settlement and/or restrict access to your funds until WePay
and the Bank reasonably believe, in their respective sole
discretion, that the risk of receiving a chargeback or dispute has
passed. All settlements to Merchants are subject to review for
risk and compliance purposes and can be delayed or postponed at
WePay’s or the Bank’s respective sole discretion.
The bank account or other payment instrument linked to your Account
will remain open while you use the Service and for at least 180 days
afterwards (or longer as we may request). During this time, you will
ensure that we are permitted to initiate debit and credit entries to
or from your bank account or other payment instrument.
11. Reserve
At any time and from time to time, WePay may instruct the Bank to temporarily suspend or delay payments to you and/or require a “Reserve” (defined following) to protect WePay and the Bank against the risks from you using the Service, including chargebacks, refunds, and Payment Network Liabilities. A “Reserve” is funds the Bank may withhold from you or require you to pay or obtain from any bank account or other funding source associated with any Account you hold with WePay and which the Bank maintains to protect WePay and the Bank against a risk that we or the Bank reasonably anticipate. We will notify you of the amount of any required Reserve, which we and the Bank will determine in good faith. WePay may (but is not required to) apply funds in the Reserve toward, and set off any funds that would otherwise be payable to WePay to you against, the satisfaction of any amounts due from you pursuant to this Agreement. The Bank will hold and control any required Reserve. The Reserve will not bear interest, and the Bank can commingle the Reserve with other funds. You have no interest in any Reserve other than a contingent right to receive any unused funds. WePay may instruct the Bank to periodically increase your required Reserve, or return Reserve funds no longer needed to manage your risk. When we and the Bank decide a Reserve is no longer needed, the Bank will return all unused Reserve funds to you. The right to require a Reserve will survive termination of this Agreement. This means that this Section 11 will remain in force even if you or we terminate the Agreement.
12. Accounts
You are not required to have funds in your Account in order to use
the Service. Any funds in your Account will be comingled and held by
the Bank with other Merchants’ funds in one or more pooled
accounts at the Bank that are established in the Bank’s name
for the benefit of you and other users. The Bank has sole
discretion over the establishment and maintenance of any pooled
account.
As consideration for using the Service,
you irrevocably assign to us or the Bank all rights and legal
interests to any interest and/or other earnings or benefits that may
accrue or are attributable to the Bank holding your funds in a
pooled account.
If your Account is negative for an
extended period of time (as defined by WePay in its sole
discretion), the Bank may close your Account, and we may pursue
legal action or other collection efforts.
13. Cardholder Data Security
“Cardholder Data” is information associated with a
payment card, such as account number, expiration date, and CVV2.
WePay will comply with the Payment Card Industry Data Security
Standards (“PCI DSS”) to the extent WePay possesses or
otherwise stores, processes, or transmits Cardholder Data on your
behalf, or to the extent WePay could impact the security of your
Cardholder Data environment. WePay is a validated PCI Level 1
Service Provider and so is qualified to handle Cardholder Data in
connection with the Service.
If you handle,
transmit, or store any Cardholder Data in connection with your use
of the Service, you agree to comply at all times with PCI DSS.
Further, you agree to certify such compliance and provide
documentation in accordance with Card Network Rules, or when asked
by WePay to do so. You also agree that you will use only PCI DSS
compliant service providers in connection with the storage,
processing, or transmission of Cardholder Data.
You are fully responsible for the security of data (including but
not limited to Cardholder Data) on your website or otherwise in your
possession or control. You agree to comply with all applicable laws,
Card Network Rules and ACH Rules in connection with your collection,
security and dissemination of any personal, financial, or
transaction information.
14. Taxes
You are responsible for determining any and all taxes assessed,
incurred, or required to be collected, paid, or withheld, in
connection with your use of the Service. You are solely responsible
for collecting, withholding, reporting and remitting any taxes to
the appropriate tax authority. WePay is not obligated to, and will
not, determine whether taxes apply, or calculate, collect, report or
remit any taxes to any tax authority arising from your use of the
Service.
WePay or the Bank may have tax reporting responsibilities in connection
with the Service. For example, WePay or the Bank will report to the
Internal Revenue Service, state and/or local governments on Form
1099 as required by law, your name, address, Tax Identification
Number (Employment Identification Number or Social Security Number),
the total gross dollar amount of the payments you process in a
calendar year, and the total gross dollar amount of the payments you
process for each month in a calendar year.
15. Customer Service Provided by Merchants
You are solely responsible for all customer service issues relating to your goods or services, including pricing, order fulfillment, order cancellation by you or the Purchaser, returns, refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from WePay and/or Chase. You will cooperate with WePay to assure that Purchasers have access to clear customer service information, including an active customer service email address and telephone number.
16. Refunds and Returns Provided by Merchants
You agree to process returns of, and provide refunds and adjustments for, goods or services through your Account in accordance with this Agreement, the Card Network Rules and the ACH Rules. The Card Network Rules require that you will (a) maintain a fair return, cancellation or adjustment policy, (b) disclose your return or cancellation policy to Purchasers at the time of purchase, (c) not give cash refunds to a Purchaser in connection with a payment card sale, unless required by law, and (d) not accept cash or any other item of value for preparing a payment card sale refund. Your refund policies must be the same for all payment methods. If your Purchaser is dissatisfied with your refund policy, the Purchaser may chargeback the payment.
17. Merchant’s Liability for Chargebacks
The amount of a payment may be charged back to you if (a) it is disputed by a Purchaser, (b) it is reversed for any reason, (c) it was not authorized or we have any reason to believe that the transaction was not authorized, or (d) it is unlawful, suspicious, or in violation of the terms of this Agreement. You are responsible for all chargebacks, whether or not the chargeback complies with the Card Network Rules. You are also responsible if a Purchaser reverses a payment by bank transfer, whether or not the reversal complies with the ACH Rules.
18. How Chargebacks are Handled
You owe the Bank and will immediately pay the amount of any
chargeback or ACH reversal and any associated fees, fines, or
penalties assessed by the Bank, the Card Networks or the ACH.
If you do not have sufficient funds in your Account, we and
the Bank will have the remedies set forth below in Section 19,
Set-off and Collection Rights; Grant of Security Interest. If you
have pending chargebacks or reversals, the Bank may delay settlement
to you.
Further, if we reasonably believe that a
chargeback or reversal is likely with respect to any transaction,
the Bank may withhold the amount of the potential chargeback or
reversal from payments otherwise due to you under this Agreement
until such time that: (a) a chargeback or reversal is assessed due
to a Purchaser’s complaint, in which case the Bank will retain
and refund the funds; (b) the period of time under applicable law or
regulation by which the Purchaser may dispute that the transaction
has expired; or (c) we determine that a chargeback or reversal on
the transaction will not occur.
If we determine that you are incurring an excessive
amount of chargebacks or reversals, WePay or the Bank may establish
controls or conditions governing your Account, including without
limitation, by (a) assessing additional fees, (b) creating a Reserve
in an amount reasonably determined by us to cover anticipated
chargebacks, reversals and related fees, (c) delaying settlement,
and (d) terminating or suspending the Service or closing your
Account.
You agree to assist us when requested, at your
expense, to investigate any of your transactions processed through
the Service. To that end, you permit us to share information about a
chargeback or reversal with the Purchaser, the Purchaser’s
financial institution, and your financial institution in order to
investigate and/or mediate a chargeback or reversal. We will request
necessary information from you to contest the chargeback or
reversal. If the chargeback or reversal is contested successfully,
the Bank will release the reserved funds to you. If a chargeback or
reversal dispute is not resolved in your favor by the Card Networks,
ACH or issuing bank or you choose not to contest the chargeback or
reversal, the Bank may recover the chargeback or reversal amount and
any associated fees as described in this Agreement. You acknowledge
that your failure to assist us in a timely manner when investigating
a transaction, including providing necessary documentation within
seven (7) days of a request, may result in an irreversible
chargeback or reversal. We reserve the right, upon notice to you, to
charge a fee for mediating and/or investigating chargeback and
reversal disputes.
19. Collection Rights
In addition to any other rights and remedies WePay may have under this Agreement, WePay may pursue one or more of the following options with respect to amounts due under this Agreement: (a) withhold all or some of your settlement funds (or any other funds that would otherwise be payable by WePay to you) and apply them against the amounts due; (b) debit the bank account or other payment instrument linked to your Account for the amounts due; (c) request and receive prompt payment for such amounts; and (d) apply funds held in any existing Reserve against the amounts due. Your failure to pay in full amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys’ fees and expenses, collection agency fees, and interest at the lesser of one-and-one-half percent (1-1/2%) per month or the highest rate permitted by law. In its discretion, WePay may make appropriate reports to credit reporting agencies and law enforcement authorities and cooperate with them in any resulting investigation or prosecution. You hereby expressly agree that all communication in relation to delinquent accounts will be made by email, by text or by phone, as provided by you to WePay. Such communication may be made by WePay or by anyone on its behalf, including but not limited to a third party collection agent.
20. Dormant Accounts
If there is no activity in your Account (such as a payment or settlement) for the period of time set forth in the applicable unclaimed property laws, and you have funds, we may notify you by sending an email to your registered email address or a text to your registered telephone number. We may also notify you by U.S. mail. If you do not initiate settlement of the funds or respond to the notice within the time period specified in the notice, we may close your Account and escheat your funds (less a processing fee) in accordance with applicable law.
21. Statements and Errors
WePay will provide a report of activities, including transactions and fees, relating to the Service (“Statement”), which is available for you to examine when it is available online. WePay is not responsible for you relying on balance, transaction or related information that is updated or corrected, or the accuracy or timeliness of information supplied by any third party. You agree that the Statements are sufficient for you to inspect and review activity and to identify errors and unauthorized or altered transactions. You will promptly examine your entire Statement once it is available. You will promptly, and no later than 60 calendar days after the Statement date, reconcile your Statement with your bank statements and other receipts from the same period, and notify WePay of any: (a) unauthorized transactions, including any claims of such activity or requested adjustments, (b) alterations, errors, discrepancies and irregularities, or (c) discrepancies you identify when reconciling with your bank statements and other receipts. If you do not act in the timeframes above, you agree that you cannot: (i) assert you exercised reasonable care and promptness in reviewing your Statement and identifying errors, (ii) be reimbursed for a “Claim” (as defined in Section 33 below) refused as a result, and (iii) make a Claim or otherwise act against us for a subsequent loss that was preventable or caused by the same wrongdoer’s repeated act. You should make archival copies of your Statement data regularly. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data, and (b) reconciling all transaction information that is associated with your Account.
The Service is not a real-time system. You acknowledge that there may be a lag in the information presented depending on when the data was last refreshed and/or the connection status. We make no commitment that the Service, or the access thereof, will be uninterrupted, available at all times, or error-free.
22. Additional Services and Features
(a) Catalog and Inventory Management Service
In connection with your use of the Service, you may have the option to access and use our Catalog and Inventory Management Service (the “Inventory Management Service”). The Inventory Management Service constitutes part of the Service, and is intended to assist with your management and tracking of physical product inventory, including the capture and reporting of sales activity related to methods of payment other than credit cards (“Alternative MOPs”).
You will be able to submit and maintain inventory data and other related transaction data (“Inventory Data”) through the Inventory Management Service. The amount of Inventory Data that you are entitled to submit through and maintain on the Inventory Management Service may be subject to usage limits as we may specify from time to time. In the event no usage limits have been specified, you agree not to use the Inventory Management Service for excessive or unreasonable data storage, or for data storage that would not be reasonably anticipated given the nature of the Inventory Management Service.
With respect to Alternative MOPs, WePay shall have the right to determine in its sole discretion the Alternative MOPs that are compatible with and supported by the Inventory Management Service, and reserves the right to decline the use of Alternative MOPs in its sole discretion. WePay does not warrant or guarantee that the Inventory Management Service will be compatible with or support particular Alternative MOPs. WePay shall not be responsible or liable for any failure by the Inventory Management Service to collect or record Inventory Data relating to Alternative MOPs that are not compatible with or supported by the Inventory Management Service. In addition, if cash and/or gift cards constitute Alternative MOPs supported by the Inventory Management Service, you acknowledge and agree that WePay shall not be responsible or liable for any payment processing activities with respect thereto.
As between WePay and you, you will own all right, title and interest in and to the Inventory Data. However, you hereby grant WePay a royalty-free, worldwide, non-exclusive right and license to access, store, record, transmit, maintain, copy and display the Inventory Data solely for purposes of providing the Inventory Management Service to you.
As between WePay and you, you are the controller of all Inventory Data, and you are solely responsible for the lawfulness, accuracy, truthfulness, consistency, and completeness of all Inventory Data you submit or provide in connection with Inventory Management Service. You represent and warrant that you (a) will comply with any and all laws, rules and regulations related to privacy, security, data protection, and/or the processing of personal data, in any relevant jurisdiction, each as amended, replaced or superseded from time to time (“Data Protection Laws”), applicable to the collection, use, processing and transfer of the Inventory Data in connection with the Inventory Management Service, (b) will obtain all consents that are required by applicable Data Protection Laws with respect to your use of the Inventory Data in connection with the Inventory Management Service, including, without limitation, obtaining any applicable consumer consents as required for you to submit applicable consumer data through the Inventory Management Service and print receipts containing such consumer data, and (c) will, upon receiving an individual’s request in relation to Inventory Data, comply with such request in accordance with Data Protection Laws.
The Inventory Management Service is not designed to comply with the requirements of the Health Insurance Portability and Accountability Act (HIPAA), Health Information Technology for Economic and Clinical Health Act (HITECH), the HIPAA Omnibus amendments and implementing regulations promulgated thereunder, and may not be used for the processing, transmission or storage of any electronic Protected Health Information.
(b) Payment Link and Edit Link Features
In connection with your use of the Service, you may have the option to access and use the payment link feature which will allow you the ability to send an electronic link to your Purchaser via email, text message, or other messaging channels to facilitate your Purchaser’s payment(s) to you (the “Payment Link Feature”). In order to utilize the Payment Link Feature, you must ensure that you have any necessary consent from your Purchaser to send an email and/or text message to them. In the case of sending by text or certain messaging channels, your Purchaser may see the phone number of the device that you send the link from. Messaging and data rates may apply.
In addition to the Payment Link Feature, you may have the option to access and use the edit link feature which will allow you to edit or modify existing payment links (the “Edit Link Feature”). You acknowledge and agree that WePay or Chase may, in its sole discretion, limit or change the features and functionality of the Payment Link Feature or Edit Link Feature at any time and without prior notice to you. Furthermore, you acknowledge and agree that if you choose to utilize the Edit Link Feature, you agree to notify your Purchasers of any changes you make and agree to indemnify WePay and/or Chase and agree to be liable for any resulting chargebacks, reversals, refunds, or Payment Network Liability.
(c) Tap-to-Pay
In connection with your use of the Service, you may have the option to access and use the tap-to-pay feature which will allow you the ability to accept certain payments via a tap to a device (the “Tap-to-Pay Feature”). In order to utilize the Tap-to-Pay Feature, you must ensure that you have a device that has the eligible features and functionality to accept payments via a tap and that you have accepted and agreed to be bound by the applicable device manufacturer terms and conditions.
(d) Limitations and Warranties for Additional Services and Features
In accordance with Section 30 below, each of the additional services and features referenced in this Section 22 (the “Additional Services and Features”) are provided “as is” and “as available” without warranties of any kind. In the event that the Additional Services and Features cease to function as intended or otherwise experiences a failure, you lose access to any data, and/or the Additional Services and Features are no longer accessible or available to you, your sole and exclusive remedy shall be to cease using the Additional Services and Features.
You acknowledge and agree that some or all of the Additional Services and Features are provided as a software as a service solution, and in providing the Additional Services and Features, we may utilize the services of one or more third party service providers to host the Additional Services and Features. You understand and agree that the availability of the Additional Services and Features, or certain features and functions thereof, is dependent on the corresponding availability of these third party services. In addition to the other disclaimers and limitations on liability set forth herein, you acknowledge and agree that we will not be liable to you or any third party in the event that unavailability of the Additional Services and Features is caused by the acts or omissions of an applicable third party service provider.
We reserve the right to suspend or terminate one or all of the Additional Services and Features at any time in our sole discretion. If we elect to suspend or terminate the Additional Services and Features, we will provide written notice to you reasonably in advance of such suspension or termination. If we terminate the Additional Services and Features, you will have thirty (30) days from the date of notice of termination to retrieve your data from the Additional Services and Features. You are solely responsible for accessing, retrieving, and storing the applicable data during the applicable thirty (30) day period. Following the applicable thirty (30) day period, we shall have no further obligation to store or maintain your data and we will have the right to delete your data from our systems.
IN THE EVENT OF A SYSTEM FAILURE, INTERRUPTION, SUSPENSION OR TERMINATION AFFECTING THE ADDITIONAL SERVICES AND FEATURES, YOUR DATA MAY BE DELETED, CORRUPTED, DESTROYED, DAMAGED OR OTHERWISE LOST. EXCEPT AS OTHERWISE PROVIDED BY LAW, YOU ASSUME THE RISK OF LOSS OF DATA IN CONNECTION WITH YOUR USE OF THE ADDITIONAL SERVICES AND FEATURES. BY ACCESSING AND USING THE ADDITIONAL SERVICES AND FEATURES, YOU ACKNOWLEDGE AND AGREE THAT YOU FULLY COMPREHEND AND ACCEPT THIS RISK OF LOSS.
YOU ACKNOWLEDGE AND AGREE THAT WEPAY WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELETION, CORRUPTION, DESTRUCTION, DAMAGE, OR OTHER LOSS OF DATA ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO, USE OF (OR INABILITY TO ACCESS OR USE), OR AVAILABILITY OF (OR LACK THEREOF) THE ADDITIONAL SERVICES AND FEATURES, HOWEVER CAUSED.
23. Privacy
Your privacy is very important to us. By accepting this Agreement, you confirm that you have read, understood and accepted our Privacy Policy.
24. Security
We have implemented technical and organizational measures designed
to secure your personal information from accidental loss and from
unauthorized access, use, alteration or disclosure. However, we
cannot guarantee that unauthorized third parties will never be able
to defeat those measures or use your personal information for
improper purposes.
If you discover a security-related
issue, including any unauthorized use of your access credentials or
Account, you will inform us of the issue immediately by contacting
the WePay Security Team at
security@wepay.com. You also agree not to disclose the issue to third parties until
WePay has addressed it unless otherwise required by law.
25. Your Right to Terminate
You may terminate this Agreement by closing your Account at any time. When you close your Account, any pending transactions will be cancelled. Any funds that the Bank holds for you at the time of closing, less any applicable fees and other liabilities, will be settled to you in accordance with Section 10, Settlement Schedule, and Section 11, Reserve, above.
26. Our Right to Terminate
We may terminate this Agreement and close your Account for any reason or no reason at any time upon notice to you. We may also suspend the Service and instruct the Bank to suspend access to your Account (including the funds in your Account) if you (a) have violated the terms of WePay’s policies or this Agreement, (b) pose an unacceptable credit or fraud risk, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.
27. Effect of Termination
If your Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Service, (c) that the license provided under this Agreement shall end, (d) that we have the right to delete all of your information and Account data in accordance with our record-keeping policies and applicable law, and (e) that WePay shall not be liable to you or any third party for any of the foregoing actions. WePay will not be liable to you for compensation, reimbursement, or damages in connection with any termination of this Agreement or suspension of Service. Any termination of this Agreement does not relieve you of any obligations to pay any fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement. After termination of this Agreement, you continue to be liable for all chargebacks, refunds, fees, Payment Network Liabilities, and adjustment resulting from or relating to transactions processed pursuant to this Agreement. If you submit transactions to us after the date of termination, we may, but are not required to, process such transactions. All transactions we process will be in accordance with and subject to all the terms of this Agreement. This Section 26 will survive termination of this Agreement.
28. Our Intellectual Property Rights
WePay grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Service solely to accept and receive payments and to manage the funds you so receive.
The Service is licensed and not sold. WePay reserves all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. WePay owns the title, copyright and other worldwide intellectual property rights in the Service and all copies of the Service. This Agreement does not grant you any rights to WePay’s trademarks or service marks, nor may you remove, obscure, or alter any of WePay’s trademarks or service marks included in the Service.
You may choose to, or we may invite you to, submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Feedback”). By submitting Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place WePay under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, WePay does not waive any rights to use similar or related ideas previously known to WePay, or developed by its employees, or obtained from sources other than you.
29. Your Representations and Warranties
You represent and warrant to us that: (a) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform this Agreement; (b) the name identified by you when you registered is your name or business name under which you sell goods and services; (c) any sales transaction submitted by you will represent a bona fide sale by you; (d) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a Purchaser; (e) you will fulfill all of your obligations to each Purchaser for which you submit a transaction and will resolve any consumer dispute or complaint directly with the Purchaser; (f) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (g) except in the ordinary course of business, no transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; (h) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service; (i) your use of the Service will be in compliance with this Agreement; and (j) you are not a “Bearer Share Company” (defined following) and you do not have any outstanding and will not issue any new “Bearer Shares” (defined following). “Bearer Share Company” means a type of company which, unlike registered share companies, issues its securities as Bearer Shares. “Bearer Shares” means securities that are not registered in the name of the owner on the books of the issuing corporation and thus payable to any possessor of the shares.
30. Disclaimer of Warranties by WePay and the Bank
You agree this Agreement is for commercial services and the Uniform Commercial Code does not apply to the Service.
WEPAY AND THE BANK PROVIDE THE SERVICE “AS IS” AND “AS AVAILABLE,” AND DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING WARRANTIES OF (A) MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, DEALING OR TRADE USE, AND (B) NON-INFRINGEMENT. WHERE LEGAL REQUIREMENTS IMPOSE AN IMPLIED WARRANTY BY US OR THE BANK, SUCH WARRANTY ENDS 30 DAYS FROM THE DATE THE SERVICE IS FIRST AVAILABLE TO YOU.
WEPAY AND THE BANK DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A PLATFORM OR OTHER THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. NEITHER WEPAY NOR THE BANK WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
31. Our and the Bank’s Liability
Under no circumstances will our and the Bank’s financial liabilities arising out of or related to this Agreement exceed the total fees paid to us under this Agreement (net of Card Network and other third party fees such as interchange, assessments, and Payment Network Liabilities) for the six months prior to the time the liability arose.
WePay and the Bank are only liable for reasonably foreseeable damages directly caused by an act that is within our or the Bank’s respective direct control and are not responsible for your actions, inactions, omissions, delays or failures, or those of third parties.
WePay and the Bank are not liable for any claim of negligence if we and the Bank follow our respective procedures, which you agree constitute our exercise of good faith and ordinary care.
WePay and the Bank are not liable for any fraud or forgery, other than by each of us.
Neither WePay nor the Bank guarantees (a) the security, sequence, timeliness, accuracy or completeness of any service, data or technology, or (b) access to any service or technology.
32. Waiving Special Damages
Neither you nor we nor the Bank will be liable for any “Special Damages,” defined following, regardless of the form of action and even if advised of a possibility of Special Damages. You, we and the Bank hereby waive the right to claim or recover Special Damages. “Special Damages” means indirect, special, incidental, speculative, remote, exemplary, punitive or consequential damages, lost profits, loss of business or goodwill, tax or late payment penalties and damages, including any related to systems or equipment issues, access to any online service, service providers, and problems or delays using the Service. For the avoidance of doubt, Special Damages do not include Payment Network Liabilities, which will be deemed direct damages.
33. Timely Filing of Claims
As used in this Agreement, “Claim” means an actual or potential action, loss, claim, dispute, controversy, damage, demand, liability, garnishment, lien, levy or other order, cost or expense, including Special Damages (as defined in Section 32 above), attorney fees and dispute resolution costs. You must file a Claim in connection with the Service with a tribunal or court of competent jurisdiction within two years of the event that gave rise to the Claim. Failure to do so will mean you have waived that Claim against us.
34. Indemnification and Holding Harmless
You agree to unconditionally release, indemnify, defend and hold harmless us, the Bank and our respective Related Persons (defined following) for any Claim arising from or related to: (a) us or the Bank providing the Service, or accepting or processing a transaction or instruction from you, your authorized person or on your behalf related to the Service or otherwise consistent with this Agreement, (b) us or the Bank paying a tax, interest or penalty for which you are liable or for which we or the Bank otherwise have no responsibility, (c) us or the Bank taking any action permitted by this Agreement, including defending against a Claim, (d) you breaching this Agreement or a representation or warranty you give, (e) you claiming against a Card Network or payment network relating to the Service or a transaction, (f) you, us or the Bank incurring fees, fines or penalties arising from you breaching legal requirements, Card Network Rules or ACH Rules, (g) you or anyone else using the Service with your access credentials, (h) a third party claim, and (i) your submission or provision of any data or information through or in connection with the Service in violation of HIPAA, HITECH, the HIPAA Omnibus amendments or any Data Protection Laws. “Related Persons” are past, present and future direct and indirect parents and affiliates and any authorized person, director, officer, employee, manager, partner, shareholder, beneficial owners, insurer, service provider, agent or attorney, including all successors, subrogees and assigns.
This indemnification does not apply to any Claim to the extent it is directly caused by our or the Bank’s negligence, recklessness or willful misconduct.
Indemnity obligations in this Agreement remain in force after your Account closes or this Agreement or the Service terminates.
35. Disputes
If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact Customer Support with any dispute. If we cannot resolve your concerns, we agree to an informal dispute resolution process requiring individual arbitration.
36. Binding Individual Arbitration
You agree that any Claim related to this Agreement or the Service, including claims regarding the applicability of this arbitration clause, shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”). We or the Bank will select another arbitration forum if the AAA ceases operations.
In the absence of this arbitration clause, you may otherwise have had a right or opportunity to litigate any Claim through a court before a judge or jury and to participate or be represented in litigation filed in court by others (including class actions). You are waiving those rights and any Claim you have must now be resolved through arbitration.
All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, negligence, statutory or regulatory provisions, or any other source of law.
Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis only, and the arbitrator may award relief only on an individual (non-class, non-representative) basis.
The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between you, on the one hand, and us or the Bank, on the other hand. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The prohibition against class action contained in this Section 36 shall be non-severable from the remainder of this Section 36.
If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing party in connection with such arbitration.
Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction.
Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office, www.adr.org, or 335 Madison Avenue, New York NY 10017, telephone 1-800-778-7879. Any arbitration hearing at which you appear will take place at a location within New York County, New York, New York.
This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. sections 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure, or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests for contractual debts now or hereafter owed by either party to the other.
In the event that you, the Bank or WePay are not able to resolve a dispute with American Express, or a claim against WePay, the Bank or any other entity that American Express has a right to join, Exhibit B will apply.
37. Governing Law and Venue
The internal laws of the State of New York (without reference to its conflict of laws rules) apply to this Agreement, subject to any modifying “Legal Requirements,” defined following. “Legal Requirements” means each applicable law, ordinance, decree, requirement, order, judgment, rule, regulation, directive, circular, interpretive letter, guidance or other official release (or a related interpretation) of a government authority or a regulatory (including self-regulatory) organization to which a party and/or its affiliates is subject, including (a) all applicable anti-money laundering laws, rules and regulations, (b) “Know-Your-Customer” and sanctions laws, rules and regulations, (c) Federal Reserve Board regulations, and (d) tax regulations. All rights and remedies relating to this Agreement, Legal Requirements, the ACH Rules and the Card Network Rules are cumulative and do not exclude any other rights or remedies. The maximum amount of pre- and post-judgment interest in connection with any Claim will be the lower of the prime rate and the rate set by the State of New York.
Disputes relating to the Service will be resolved by an arbitration tribunal or by a court of competent jurisdiction in the State of New York and you agree to submit to this jurisdiction. YOU WAIVE ANY IMMUNITY (SOVEREIGN OR OTHERWISE) THAT YOU MAY HAVE IN CONNECTION WITH THIS AGREEMENT.
This Section 37 does not prevent us from starting proceedings in a court or tribunal of any state with jurisdiction, including concurrently in any number of states.
38. Waiving Rights to Jury Trial
You and we waive the right to a trial by jury for any matter or Claim relating to this Agreement, the Service or a transaction.
39. Assigning this Agreement; Change of Control
We must agree in writing before you transfer or assign this Agreement (including by operation of law or merger). Without our consent, such transfer or assignment is void and may result in us immediately terminating the Agreement. Where we do agree, an assignee or transferee is subject to this Agreement and the obligations and liabilities you owed to us before the date it is transferred or assigned.
We must agree in writing before an assignee can continue, assume or assign this Agreement for the benefit of a creditor, custodian, receive, trustee in bankruptcy, debtor in possession, sheriff or court officer, or a person taking charge of your assets or business.
We or the Bank can at any time assign or transfer this Agreement, in whole or in part, or any or all of our respective rights and obligations under this Agreement. We can assign and transfer your Account information and documentation to a replacement Account number at our discretion. We may make this assignment when your Account is reported compromised by you or any person authorized to access the Account on your behalf. If we issue you a replacement Account number, this Agreement governing you and your Account will continue to apply, without interruption, as if you retained the discontinued Account number.
You will give us notice at least 60 calendar days before you sell all or substantially all of your assets, or a person becomes a beneficial owner with more than 50 percent of the combined voting power of your ownership interests, or acquires voting control. You will give us information we request about a major asset sale or ownership change.
40. Third Party Services and Links to Other Web Sites
You may be offered services, products and promotions provided by third parties and not by WePay. If you decide to use these third party services, you will be responsible for reviewing and understanding the terms and conditions associated with them. You agree that WePay is not responsible for the performance of these services. The Website may contain links to third party websites. The inclusion of any website link does not imply an approval, endorsement, or recommendation by WePay. You agree that you access any such website at your own risk, and that the site is not governed by the terms and conditions contained in this Agreement. WePay expressly disclaims any liability for these websites. Please remember that when you use a link to go from the Website to another website, our Privacy Policy is no longer in effect. Your browsing and interaction on any other website, including those that have a link on our Website, is subject to that website’s own rules and policies.
41. Amendment of Agreement
We have the right to change the terms of this Agreement at any time with notice that we in our sole discretion deem to be reasonable in the circumstances, including posting the revised Agreement on our Website. Any use of the Service after such notice or posting shall constitute your acceptance of this Agreement as modified.
42. Force Majeure
Neither we nor the Bank are liable to you for not carrying out, or delaying performance of, any actions caused by an act of God, a government authority, any Card Network, the ACH, a Legal Requirement, a catastrophe, war or terrorism, civil or labor disturbance, fire, flood, other natural disaster, or any other cause beyond our reasonable control.
43. Other Provisions
Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you and WePay, and they describe the entire liability of WePay and the Bank and your exclusive remedy with respect to your access and use of the Service. In the event of a conflict between this Agreement and any other WePay agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that WePay may have under trade secret, copyright, patent or other laws. WePay’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
44. Survival
Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement shall survive and remain in effect in accordance with its terms upon the termination of this Agreement.
Exhibit A
American Express Card Acceptance and Brand Requirements
1. Defined Terms. As used in this Exhibit A, the following capitalized terms have the following respective meanings:
“Cardmember” means an individual or entity that has entered into an agreement establishing an American Express Card account, or whose name appears on the American Express Card.
“Cardmember Information” means any information about Cardmembers and transactions, including, but not limited to, transaction data, and Cardmember name, addresses, American Express Card numbers, and American Express Card Identification Numbers.
“Establishments” means any or all of your and your affiliates’ locations, outlets, websites, online networks, and all other methods for selling goods and services including methods that you adopt in the future.
“Marks” means names, logos service marks, trademarks, trade names, taglines, or other proprietary designs or designations.
“Other Payment Products” means any charge, credit, debit, stored value, prepaid, or smart cards, account access devices, or other payment cards, services, or products other than the American Express Card
2. American Express Card Acceptance. Merchant must accept the American Express Card as payment for goods and services (other than those goods and services prohibited under Section 5 of the Agreement) sold, or (if applicable) for charitable contributions made, at all of Merchant’s Establishments, except as expressly permitted by state statute. Merchant is jointly and severally liable for the obligations of Merchant’s Establishments under this Agreement.
3. Treatment of the American Express Brand. Except as expressly permitted by applicable law, Merchant must not:
-▯indicate or imply that Merchant prefers, directly or indirectly, any Other Payment Products over the American Express Card,
-▯try to dissuade Cardmembers from using the American Express Card,
-▯criticize or mischaracterize the American Express Card or any American Express services or programs,
-▯try to persuade or prompt Cardmembers to use any Other Payment Products or any other method of payment (e.g., payment by check),
-▯impose any restrictions, conditions, disadvantages or fees when the American Express Card is accepted that are not imposed equally on all Other Payment Products, except for electronic funds transfer, or cash and check,
-▯suggest or require Cardmembers to waive their right to dispute any transaction,
-▯engage in activities that harm our business or the American Express brand (or both),
-▯promote any Other Payment Products (except Merchant’s own private label card that Merchant issues for use solely at Merchant’s Establishments) more actively than Merchant promotes the American Express Card, or
-▯convert the currency of the original sale transaction to another currency when requesting authorization or submitting transactions (or both).
4. Treatment of the American Express Brand (US). Merchant may offer discounts or in-kind incentives from Merchant’s regular prices for payments in cash, ACH funds transfer, check, debit card or credit/charge card, provided that (to the extent required by applicable law): (i) Merchant clearly and conspicuously discloses the terms of the discount or in-kind incentive to Merchant’s customers, (ii) the discount or in-kind incentive is offered to all of Merchant’s prospective customers, and (iii) the discount or in-kind incentive does not differentiate on the basis of the issuer or, except as expressly permitted by applicable state statute, Card Network. The offering of discounts or in-kind incentives in compliance with the terms of this paragraph will not constitute a violation of the provisions set forth above in the paragraph titled, “Treatment of the American Express Brand”.
5. Treatment of the American Express Marks. Whenever payment methods are communicated to customers, or when customers ask what payments are accepted, Merchant must indicate Merchant’s acceptance of the American Express Card and display our Marks as prominently and in the same manner as any Other Payment Products. Merchant must not use our Marks in any way that injures or diminishes the goodwill associated with the Mark, nor in any way (without our prior written consent) indicate that we endorse Merchant’s goods or services. Merchant shall only use our Marks as permitted by the Agreement and shall cease using our Marks upon termination of the Agreement.
6. Treatment of American Express Cardmember Information. Any and all Cardmember Information is confidential and the sole property of the American Express Card issuer, American Express or its affiliates. Except as otherwise specified, Merchant must not disclose Cardmember Information, nor use nor store it, other than to facilitate transactions at Merchant’s Establishments in accordance with the Agreement.
Exhibit B
Arbitration Agreement (as to Disputes involving American Express) (U.S.)
In the event that Merchant or WePay is not able to resolve a “Claim” (as defined in Section 11 below) against American Express, or a claim against WePay or any other entity that American Express has a right to join, this Exhibit B (this “Arbitration Agreement”) explains how Claims may be resolved through arbitration. Merchant or American Express may elect to resolve any Claim by binding individual arbitration.
Claims will be decided by a neutral arbitrator. If arbitration is elected by any party, neither Merchant nor WePay nor American Express will have the right to litigate or have a jury trial on that Claim in court. Further, Merchant, WePay, and American Express will not have the right to participate in a class action or in a representative capacity or in a group of persons alleged to be similarly situated pertaining to any Claim subject to arbitration under this Arbitration Agreement. Arbitration procedures are generally simpler than the rules in court. An arbitrator’s decisions are final and binding, and the arbitrator’s final decision on a Claim generally is enforceable as a court order with very limited review by a court. Other rights Merchant, WePay, or American Express would have in court may also not be available in arbitration.
1. Initiation of Arbitration. Claims may be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration Agreement and the selected organization’s rules in effect when the Claim is filed, except where those rules conflict with this Arbitration Agreement. Contact JAMS or AAA to begin an arbitration or for other information. Claims may be referred to another arbitration organization if all parties agree in writing, if American Express selects the organization and Merchant selects the other within 30 days thereafter or if an arbitrator is appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (FAA). Any arbitration hearing will take place in the federal judicial district where Merchant’s headquarters is located or New York, NY, at Merchant’s election.
2. Limitations on Arbitration. If any party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. No Claim is to be arbitrated on a class or purported representative basis or on behalf of the general public or other persons allegedly similarly situated. The arbitrator’s authority is limited to Claims between Merchant, WePay, and American Express. An arbitration award and any judgment confirming it will apply only to the specific case brought by Merchant, WePay or American Express and cannot be used in any other case except to enforce the award as between Merchant, WePay and American Express. This prohibition is intended to, and does, preclude Merchant from participating in any action by any trade association or other organization against American Express. Notwithstanding any other provision in this Arbitration Agreement, if any portion of these Limitations on Arbitration is found invalid or unenforceable, then the entire Arbitration Agreement (other than this sentence) will not apply, except that Merchant, WePay, and American Express do not waive the right to appeal that decision.
3. Previously Filed Claims/No Waiver. Merchant, WePay, or American Express may elect to arbitrate any Claim that has been filed in court at any time before trial has begun or final judgment has been entered on the Claim. Merchant, WePay, or American Express may choose to delay enforcing or to not exercise rights under this Arbitration Agreement, including the right to elect to arbitrate a claim, without waiving the right to exercise or enforce those rights on any other occasion. For the avoidance of any confusion, and not to limit its scope, this section applies to any class-action lawsuit relating to the “Honor All Cards,” “non-discrimination,” or “no steering” provisions of the American Express Merchant Regulations, or any similar provisions of any prior American Express Card acceptance agreement, that was filed against American Express prior to the Effective Date of the Arbitration Agreement to the extent that such claims are not already subject to arbitration pursuant to a prior agreement between Merchant and American Express.
4. Arbitrator’s Authority. The arbitrator will have the power and authority to award any relief that would have been available in court and that is authorized under this Arbitration Agreement. The arbitrator has no power or authority to alter the Agreement or any of its separate provisions, including this Arbitration Agreement.
5. Split Proceedings for Equitable Relief. Merchant, WePay, or American Express may seek equitable relief in aid of arbitration prior to arbitration on the merits if necessary to preserve the status quo pending completion of the arbitration. This section shall be enforced by any court of competent jurisdiction, and the party seeking enforcement is entitled to seek an award of reasonable attorneys’ fees and costs to be paid by the party against whom enforcement is ordered.
6. Small Claims. American Express will not elect arbitration for any Claim Merchant properly files in a small claims court so long as the Claim seeks individual relief only and is pending only in that court.
7. Governing Law/Arbitration Procedures/Entry of Judgment. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce and is governed by the FAA. The arbitrator shall apply New York law and applicable statutes of limitations and honor claims of privilege recognized by law. The arbitrator shall apply the rules of the arbitration organization selected, as applicable to matters relating to evidence and discovery, not federal or any state rules of procedure or evidence, provided that any party may ask the arbitrator to expand discovery by making a written request, to which the other parties will have 15 days to respond before the arbitrator rules on the request. If Merchant’s Claim is for $10,000 or less, Merchant may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the rules of the selected arbitration organization. At the timely request of a party, the arbitrator will provide a written opinion explaining his/her award. The arbitrator’s decision will be final and binding, except for any rights of appeal provided by the FAA. Judgment on an award rendered by the arbitrator may be entered in any state or federal court in the federal judicial district where Merchant’s headquarters or Merchant’s assets are located.
8. Confidentiality. The arbitration proceeding and all information submitted, relating to or presented in connection with or during the proceeding, shall be deemed confidential information not to be disclosed to any person not a party to the arbitration. All communications, whether written or oral, made in the course of or in connection with the Claim and its resolution, by or on behalf of any party or by the arbitrator or a mediator, including any arbitration award or judgment related thereto, are confidential and inadmissible for any purpose, including impeachment or estoppel, in any other litigation or proceeding; provided, however, that evidence shall not be rendered inadmissible or non-discoverable solely as a result of its use in the arbitration.
9. Costs of Arbitration Proceedings. Merchant will be responsible for paying Merchant’s share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees Merchant would have incurred if Merchant had brought a claim in court. American Express will be responsible for any additional arbitration fees. At Merchant’s written request, American Express will consider in good faith making a temporary advance of Merchant’s share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
10. Additional Arbitration Awards. If the arbitrator rules in Merchant’s favor against American Express for an amount greater than any final settlement offer American Express made before arbitration, the arbitrator’s award will include: (1) any money to which Merchant is entitled as determined by the arbitrator, but in no case less than $5,000; and (2) any reasonable attorneys’ fees, costs and expert and other witness fees incurred by Merchant.
11. Definitions. For purposes of this Exhibit B, “Arbitration Agreement (as to Claims involving American Express) (U.S.)” only, (i) American Express includes its affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables, and all agents, directors, and representatives of any of the foregoing, (ii) Merchant includes Merchant’s affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables and all agents, directors, and representatives of any of the foregoing, and (iii) Claim means any allegation of an entitlement to relief, whether damages, injunctive or any other form of relief, against American Express or against WePay or any other entity that American Express has the right to join, including, a transaction using an American Express product or network or regarding an American Express policy or procedure.