Last updated May 20, 2022
This Pay.com services agreement (“Agreement”) is between the merchant that accepts this Agreement (“Merchant”) and PayCom Us, Inc. dba Pay.com, a Delaware corporation with offices at 8 The Green, Ste R, Dover DE, 19901 (“Pay.com”) governing Merchant use of the services (the “Services”) available through www.pay.com (the “Site”), other sites and portals and mobile applications, if any (each, an “App”) (the Site, Apps and such other portals, together, the “Platform”). Capitalized terms in this Agreement have the meanings set out in the glossary at the end of the body of this Agreement.
ACCEPTANCE. By checking an opt-in box, clicking on “I accept” or otherwise accepting this Agreement on the sign-up page, installing the App, or otherwise accessing or using the Services, Merchant acknowledges that they have read, understood, and agree to be bound by and comply with the terms of this Agreement. If Merchant is using the Services on behalf of an entity, partnership, or other organization, then Merchant represents that: (i) the person accepting this Agreement is an authorized representative of that entity with the authority to bind that entity to this Agreement; and (ii) such entity agrees to be bound by this Agreement. If Merchant does not agree to the terms of this Agreement, then they are not permitted to use the Services.
ARBITRATION NOTICE. Except for certain kinds of disputes described in the Arbitration provision below, Merchant agrees that disputes arising under this Agreement will be resolved by binding individual arbitration, and BY ACCEPTING THIS AGREEMENT, Merchant AND Pay.com ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. Merchant AGREES TO GIVE UP Merchant RIGHT TO GO TO COURT to assert or defend Merchant rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a single ARBITRATOR and NOT a judge or jury. See the Arbitration provision below.
1. Services.
The Services supplied to Merchant shall be as specified in the Application or Account and may include: (i) cloud-based financial information storage and reporting; (ii) the Gateway Services; (iii) the service of communicating information to, from and among Merchant, Customers, Third Party Servicers and Pay.com, as per Merchant instructions; and (iv) such other Services as may be made available to Merchant via the Platform. Merchant may make certain selections of Services that they wish to procure through the Application or the Account which selections are incorporated into this Agreement. The definitive set of Services provided shall be those indicated as selected on the Application and any subsequent selections made within the Account or as otherwise agreed in writing.
Pay.com will provide the Services to Merchant for the term of this Agreement, subject to the payment of applicable Fees and compliance with the terms of this Agreement. As part of the Services, Pay.com hereby grants to Merchant a non-exclusive, non-transferable, non-assignable right to use the Services, as per the terms of this Agreement. Merchant acknowledges that the Services are cloud-based and hosted services and no copies of the Services or Platform will be delivered to Merchant, other than, where available, the App subject to the EULA. The Services shall be used by Merchant solely for Merchant own purposes and Pay.com does not convey any right, title or interest in the Services or Platform to Merchant. Merchant’s right to use the Services shall terminate on termination of this Agreement or suspension of the supply of the Services to Merchant.
Supply of Services
In supplying the Services, Pay.com shall be responsible only for providing data transmission to effect or direct certain payment authorizations for the Merchant and is not responsible for the results of any credit inquiry, the operation of web sites of internet service providers Financial Services Providers or other Third Party Servicers, the availability or performance of the internet, or for any damages or costs the Merchant suffers or incurs as a result of any instructions given, actions taken or omissions made by the Merchant or any third party.
In supplying the Services, Pay.com is presenting data and information collected from the Merchant and makes no representations and warranties regarding the availability, accuracy, timeliness or completeness of such data and information or any output or results of the Services offered based in whole or in part on such data and information. The Merchant shall be solely responsible for the accuracy and completeness of the Merchant Data or Customer Data it supplies to Pay.com or any Third Party Servicer and for any losses that Pay.com or a third party or the Merchant itself incur in connection to such Merchant Data or Customer Data.
Pay.com may change the method of access to Services from time to time, for purposes of maintaining a secure and stable environment or for any other reason it deems fit.
In the event of degradation or instability of any Services or an emergency, Pay.com may temporarily suspend the Merchant’s access to any Services in order to minimize threats and to protect operational stability and security.
Pay.com does not guarantee the security of Transaction Data and shall not be responsible in the event of any Data breach if it has used commercially reasonable efforts to prevent any such breach.
Financial Services
Pay.com does not perform Financial Services for Merchant under this Agreement. Financial Services, such as Payment Transactions are provided by Financial Services Providers under Financial Services Terms. For example, where a Merchant wishes to procure payment processing via Pay.com, Pay.com shall invite the Merchant to enter into a payment processing services agreement with an acquiring financial institution which shall be, for the purposes of this Agreement, a Financial Services Provider.
Merchant may, however, use the Services to communicate Merchant instructions to a Third Party Servicer of Merchant.
Errors
Merchant shall immediately notify Pay.com of any errors by Pay.com or Merchant in the supply or use of the Services. Where practicable, Pay.com shall use commercially reasonable efforts to investigate errors, but makes no representation as to its ability to correct the error. Merchant shall provide Pay.com with any information necessary to investigate an error in a Transaction. Some payment Transactions, such as wire transfers, are irreversible, so Merchant agrees to exercise extreme caution when initiating any Payment Transaction by way of instructions delivered through the Services.
2. Pay.com Account.
Pay.com may provide Merchant with a unique and private data Account accessible through the Services. The Account shall be a record of Merchant Data Transactions, Fees and some Payment Transactions. Pay.com shall provide Merchant with access codes for the Account. Merchant shall not disclose such codes or permit any third party to use them. Merchant has exclusive responsibility for the use of its Account. Pay.com may permit Merchant to grant certain of its employees or agents (“Merchant Personnel”) access to the Account or parts thereof. Merchant shall cause that Merchant Personnel comply with the terms of this Agreement when accessing the Account or otherwise and the Merchant shall be liable for any acts or omissions of the Merchant Personnel as such acts or omissions are, without limitation, deemed to be those of the Merchant. Pay.com will invite Merchant to enter certain preferences and specifications within the Application or the Account that will apply to the Services; Merchant assumes exclusive responsibility for such selections even if they contain errors by Merchant or result in losses to Merchant. Any additional terms and conditions posted to the Platform with respect to the Account or specific Services preferences selected by Merchant are incorporated herein by reference.
Except as required to deliver the Services or as otherwise required by law, Pay.com shall not grant any third party access to Merchant Account.
Merchant shall notify Pay.com by email to [email protected] immediately of any loss or disclosure, whether voluntary or otherwise, of any Account password or access code to a third party.
Merchant shall provide, at its own expense, all necessary hardware, applications or other Merchant Devices and internet connectivity necessary to access the Services. Merchant acknowledges that the internet can be unpredictable in performance, unsecure and may, from time to time, impede access to the Services or performance hereunder. Merchant agrees that Pay.com is not responsible for any internet outages, unsecure WIFI or other connections or any other interference with Merchant’s use of or access to the Services or security breaches arising from any Merchant Device and Merchant waives any and all claims against Pay.com in connection therewith.
3. API
Where indicated in the Application or the Account, Merchant will be provided with access to an API through which it may access some Services. Merchant shall, where required by the Rules or if requested by Pay.com: (i) provide to Pay.com an Attestation of Compliance (“AoC”), a Report on Compliance (“RoC”) and an Approved Scanning Vendor (“ASV”), each of which must be valid, as determined by Pay.com; (ii) ensure and remain compliant with Security Standards; (iii) renew their certification of PCI DSS annually and submit the newly issued AoC; and (iv) comply with all the user guides and any other instructions of Pay.com in connection with the integration and use of APIs.
The method of communication and technology applicable to the API shall be disclosed by Pay.com from time to time and more particularly defined in the API specifications and manuals, as well as in accordance with Pay.com’s requirements as communicated from time to time shall be the one exclusively used in the whole process of all Transactions (including, but not limited to the content of the Data to be delivered, Data format, etc.).
Unless otherwise required by Applicable Law, the Rules or a Financial Services Provider, Pay.com shall notify the Merchant of alterations and modifications of specifications with respect to the API within a reasonable time before they are to take effect. The Merchant shall ensure that such changes are implemented by the Merchant in a timely manner, but no longer than (i) three (3) months for API and technical documentation updates; and (ii) one (1) month for any other modifications. Fulfillment of such requirements by the Merchant is a necessary condition for Merchant to access the Services.
When using the Gateway Services, Merchant must deliver Transaction details to Pay.com. The Merchant is also obligated to ensure that the Transaction details delivered by it are correct and complete and are in a format that is readable and can be further processed. Pay.com is not liable for any loss of Transaction Data or for other malfunctions and damage to the extent they are due to the failure of the Merchant or it caused by a third party or due to Force Majeure. Pay.com shall not be held liable in cases where Data is lost following delivery by the Merchant and upon delivery to the Pay.com due to the fact that no proper backup was made by the Merchant on the Merchant’s own systems prior to transmission, subject only to Applicable Law, the Rules and requirements of Financial Services Providers.
Pay.com shall not be held liable for any faults due to telecommunication or internet connection or for any failure or disruption in the technical infrastructure outside Pay.com’s sphere of responsibility and in more specific, for the proper functioning of the technical transmission procedure, devices, routes and other technical equipment, which the Merchant uses to connect and exchange Data under this Agreement.
4. Limitations.
Prohibited Merchants
The following Persons are prohibited from using the Services: (i) Persons who appear on any U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN); (ii) Persons who are less than 18 years of age; (iii) Persons, or their Affiliates who have procured services from Pay.com and have been terminated for cause by Pay.com or any of its Affiliates; and (iv) individual consumers. The Services may not be used for individual consumer use. Merchant must be a business, charitable organization or not-for-profit organization to use the Services. Pay.com reserves the right to decline to provide Services or terminate Services to one or another type of business; Pay.com shall notify Merchant of prohibited business types through the Platform, the Account or the App. In any case, any business that is illegal or operates in support of illegal activity is prohibited from using the Services. Acceptance by Pay.com of Merchant for the Services shall not be interpreted as an advice or opinion as to the legality of the Merchant, its Products or Merchant’s intended use of the Services in relation to the same.
Limitations on Use
Merchant shall not itself and shall not permit any Merchant Personnel or any other third party to: (i) permit any party to access or use the Services other than the Merchant Personnel authorized under this Agreement; (ii) modify, adapt, alter or translate any software of the Platform underlying the Services; (iii) license, lease, rent, loan, distribute, or otherwise transfer the Services to any third party; (iv) except if, and solely to the extent that, such a restriction is impermissible under Applicable Law, reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or algorithms, structure or organization) of any software or systems underlying the Services; (v) use or copy the any software or systems underlying the Services; (vi) conduct or promote any illegal activities while using the Services; (vii) use the Services to generate unsolicited email advertisements or spam; (viii) use the Services to stalk, harass or harm another individual; (ix) use any high volume automatic, electronic or manual process to access, search or harvest information from the Services (including without limitation robots, spiders or scripts); (x) except if, and solely to the extent that, such a restriction is impermissible under Applicable Law, interfere in any way with the proper functioning of the Services or interfere with or disrupt any servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (xi) attempt to gain access to secured portions of the Services to which it does not possess access rights; (xii) upload or transmit any form of virus, worm, Trojan horse, or other malicious code; (xiii) use any robot, spider, other automatic device, or manual process to extract, “screen scrape”, monitor, “mine”, or copy any static or dynamic web page on the Services or the content contained on any such web page for commercial use without our prior express written permission; (xiv) impersonate any Person or entity, or otherwise misrepresent its affiliation with a Person or entity; (xv) mirror or frame the Services or any content, place pop-up windows over its pages, or otherwise affect the display of its pages; or (xvi) publicly display or publicly perform any part of the Services. Merchant may not use the Services for any purpose other than a purpose for which the Services are expressly designed. If Merchant is prohibited under Applicable Laws from using the Services, Merchant may not use them and Pay.com reserves the right to terminate this Agreement without penalty. Upon such termination, Merchant shall nonetheless be liable for all Fees or other liabilities incurred hereunder.
5. Pay.com Intellectual Property Rights.
Pay.com expressly reserves all Intellectual Property Rights in the Services, Platform, all systems supporting or operating either and all materials provided by Pay.com hereunder. All right, title and interest in the Services, the Platform and all other materials provided by Pay.com hereunder, any update, adaptation, translation, customization or derivative work thereof, and all Intellectual Property Rights therein will remain with Pay.com or its licensors. Pay.com reserves the right, in its sole discretion, to change, modify, add, or remove portions of the Services without prior notice to Merchant or consent of Merchant. Certain of Pay.com Intellectual Property Rights in the form of its the names, logos, trademarks, trade names, service marks, content, visual interfaces, interactive features, information, compilation, computer code, products, services, and other materials displayed on the Services (“Pay.com Materials”) are protected by Intellectual Property Rights Applicable Laws of the United States, Cyprus, and other jurisdictions. Merchant shall not use any names, trademarks, trade names of Pay.com without prior express written consent of Pay.com.
6. Merchant Data Consent.
Merchant hereby authorizes Pay.com to, directly or through third parties, make any inquiries and conduct any investigation to verify Merchant identity.
The Services requires certain information concerning Merchant, including but not limited to Merchant name, address, phone number, email address, date of birth, social security number, occupation, Bank Account information and other Third Party Servicer account information. Merchant agrees that all information it provides to Pay.com shall be complete and accurate and Merchant shall promptly correct any errors in the information provided to Pay.com.
Subject to the Pay.com Privacy Policy posted here https://pay.com/legal/privacy-policy and incorporated into this Agreement by reference, Merchant and each of Merchant Personnel hereby grant Pay.com the right to collect, store, use and disclose Merchant Data for the purpose of providing the Services and its integration with Third Party Servicer Services selected by Merchant. Where Merchant Data includes data concerning third parties, Merchant states that it has obtained the necessary consents for Pay.com to collect, process, store such data hereunder from the relevant data subjects. Data collected by Pay.com is subject to the Pay.com Privacy Policy. Subject to Applicable Laws to the contrary, if Pay.com is subject to a subpoena request, court or administrative tribunal order requesting disclosure of Merchant Data, Pay.com shall use commercially efforts to grant Merchant an opportunity to contest the request or order. If the request or order is uncontested, Pay.com shall cooperate with the request and release Merchant Data according to the terms thereof.
Merchant hereby authorizes Pay.com, each Financial Services Provider and each other Third Party Servicer to each obtain from the others and disclose to the others Merchant Data in so far as is necessary to supply their respective services either hereunder or under their respective Third Party Servicer Agreements. Third Party Servicers are third party beneficiaries under this Agreement.
Where required by Applicable Law, Pay.com will disclose Transaction Data to law enforcement agencies or regulatory agencies. Pay.com reserves the right to keep Merchant Data and other Transaction Data for the term of this Agreement and for five (5) years after the termination of this Agreement.
If Merchant is eligible and chooses to participate in Financial Service Provider’s OptBlue program for American Express®, Financial Service Provider will settle Merchant’s American Express transactions and (a) Merchant will receive one consolidated statement from Financial Service Provider that will reflect Merchant’s Visa, MasterCard, American Express, and Discover transactions; (b) Merchant’s American Express and Discover settlement funds will be paid at the same time and in the same manner as Merchant’s Visa and MasterCard settlement; and (c) Merchant will not have a direct relationship with American Express and the terms set forth in Exhibit B for American Express transactions will apply. Merchant consents to the disclosure of Transaction Data, Merchant Data and other information about the Merchant to American Express and to the use by American Express of such information to perform its responsibilities in connection with the provision of its services, to promote the American Express Network, perform analytics and create reports, and for any other lawful business purposes including marketing purposes. Merchant agrees American Express may use any information in this Agreement to screen and/or monitor Merchant in connection with American Express card marketing and administrative purposes.
7. Pay.com Protection of Merchant Data.
Accuracy
Merchant has sole responsibility for the accuracy, appropriateness and completeness of all Merchant Data. Pay.com will use the Merchant Data it is provided in performing the Services and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Merchant Data.
Data Protection
The provisions of Exhibit A – US Data Protection Addendum to this Agreement (set out below) shall apply and form part of this Agreement.
Security
Pay.com shall comply with applicable Security Standards.
Pay.com will take reasonable steps to help protect Merchant Data. However, Merchant understands and agrees that such steps do not guarantee that the Services are invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities. Pay.com reserves the right to cooperate with local, state and federal authorities in investigations of improper or unlawful activities and this may require the disclosure of Merchant’s personal information. Pay.com may also report to other organizations about improper or unlawful user activities and this reporting may include disclosure of personal information relating to those individuals conducting such improper or unlawful activities.
Merchant shall secure Merchant Data in its possession or under its control. Merchant assumes exclusive responsibility for ensuring the security of each Merchant Device and the Data on it. Pay.com is not liable for the operation or failure of Merchant Devices or those of any third party, including but not limited to processors, hosting services, internet service providers and other Third Party Servicers. Merchant shall not operate Merchant Device in a manner that does not meet the applicable security requirements of Pay.com, indicated in the Account or on the Platform, or those of Third Party Servicers.
Pay.com is not responsible for performing, and is not liable for any failure to perform, any back-up of any Merchant Data or other data provided, transmitted, processed, or stored by Merchant.
Sharing
Pay.com shall disclose Merchant Data to those representatives of Merchant identified by Merchant for such purposes and also to such Third Party Servicers as Merchant has selected. Pay.com has no liability for any collection, processing, storage, use or disclosure of Merchant Data by any Third Party Servicer or any other third party. Pay.com reserves the right to decline to share Merchant Data with any third party where Pay.com believes that such sharing may expose Merchant, Pay.com or a Third Party Servicer to excessive security, financial or reputational risk, provided however that Pay.com shall never be liable for any act or omission of any third party with respect to Merchant Data or otherwise. Pay.com may collect, store and use copies of Merchant Data and Customer Data on an anonymized basis for statistical purposes and in order to reduce the risk of fraud to Merchant and other users of the Pay.com Services. Pay.com makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility or liability for, the quality, content, nature, veracity or reliability of any Merchant Data.
Feedback
In the event that Merchant provides Pay.com any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Services (collectively, “Feedback”), Merchant agrees that Pay.com may use the Feedback to modify the Services and that Merchant will not be due any compensation, including any royalty related to the product or service that incorporates the Feedback. Merchant hereby grants Pay.com a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether Merchant provides the Feedback on the Services or through any other method of communication with Pay.com.
Limitations
Merchant shall not take possession of or enter into the Account any Data: (i) that Merchant does not have the lawful right to copy, transmit, distribute, and display (including any Merchant Data that would violate any confidentiality or fiduciary obligations that Merchant might have); (ii) for which Merchant does not have the consent or permission from the owner of any personally identifiable information contained in the Merchant Data; (iii) that infringes, misappropriates or otherwise violates any Intellectual Property Rights or violates any privacy rights of any third party; (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; (vi) that violates, or encourages any conduct that would violate, any Applicable Laws or regulation or would give rise to civil or criminal liability; or (vii) that contains any viruses, trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
Financial Data Storage, Not Advice
The Services do not include the supply of any accounting, financial, investment, legal or other professional advice. Pay.com is not an accounting or other professional services firm. Pay.com does not hold any licenses for the supply of any accounting, financial, investment, legal or other professional advice and none of the Services shall be construed as including any such services. Data presented in the Services, such as financial information, for example, shall not be construed as reflective of the financial status of Merchant or any third party nor are they necessarily compatible with any specific accounting standards, such as GAAP (generally accepted accounting principles). Merchant shall be exclusively responsible for retaining third party any accounting, financial, investment, legal and other professional advice.
Merchant Call Monitoring
Pay.com may monitor and record support-related and other outbound calls to Merchant, as well as inbound calls to Pay.com by Merchant or Merchant’s representatives, for compliance, support, training and other purposes. Merchant agrees that Pay.com may record any call between Merchant and Pay.com relating to the Services, and agrees to (i) notify all relevant Merchant employees that calls with Pay.com may be monitored and (ii) indemnify and hold harmless Pay.com from any claim arising as a result of Pay.com’s monitoring or recording of calls between Pay.com and Merchant’s representatives.
8. Merchant Protection of Data
If Merchant collects, stores, uses or discloses any Card Information, Merchant shall comply with applicable Security Standards, including but not limited to, the Payment Card Industry Data Security Standards (“PCI DSS”) and shall provide a qualified third party certification of such compliance, when requested by Pay.com. Merchant shall use only Third Party Servicers that are compliant with Security Standards in connection with the storage, processing, or transmission of Card Information.
Merchant shall not request or use Card Information for any purpose except in respect of payment for its goods or services or to provide a refund for goods or services previously sold, unless required by the Rules. Merchant agrees that: (i) it will not use the Card Information for any purpose that it knows or should know to be fraudulent or in violation of any Rules; (ii) it will not sell, purchase, provide or exchange in any manner or disclose Card Information to anyone other than Pay.com, Financial Services Provider, any Payment Network, or in response to a government request; and (iii) it will be compliant with the Security Standards and will cooperate in a forensic investigation if so required.
Merchant has exclusive responsibility for security of Data and other information on Merchant systems or those under its control. Merchant shall comply with all applicable laws, Rules, and rules in connection with Merchant collection, storage and disclosure of any personal, financial, or Transaction information.
Merchant shall maintain adequate security so as to prevent a breach of Data. In the event of any actual or suspected breach of data in possession or control of Merchant or one of its Third Party Servicers, Merchant shall immediately notify Pay.com thereof and also comply with all applicable laws and Rules concerning the breach.
Merchant shall obtain from each Customer all consents required under the Rules and applicable law for the collection, use, storage and disclosure of any and all information provided by Customers or obtained by Merchant or its agents or Third Party Servicers under the Merchant relationship with its Customers or otherwise. Merchant shall indemnify and hold Pay.com and Financial Services Provider harmless from and against any liability arising on account of or in relation to the failure by Merchant to obtain such consents from Customers.
Merchant grants Pay.com and Financial Services Provider the right to collect, store, use and disclose all Transaction Data in order to provide the Payment Processing Service, which shall occur subject to the Pay.com Privacy Policy.
9. Indemnification.
Merchant shall defend, indemnify, and hold harmless Pay.com, its employees, officers, directors Affiliates, suppliers, licensors, Financial Services Providers and other Third Party Servicers and other customers against any and all liability including damages, recoveries, deficiencies, interest, penalties, losses and reasonable attorney’s fees arising out of or relating to: (i) any breach of the terms hereof; (ii) any breach of a Third Party Servicer Agreement; (iii) any violation of any Applicable Laws; (iv) any use of Merchant Data by Merchant or a Third Party Servicer or other third party; (v) Merchant use of the Services, including in combination with any third party service; (vi) any Transaction; (vii) any Payment Transaction occurring as a result of data communicated via the Services; (viii) any act or omission of any Third Party Servicer or Client; (ix) costs incurred by Pay.com enforcing the terms hereof or responding to any subpoena relating to Merchant, Merchant Data or a Third Party Servicer; (x) any claim by a governmental taxing authority; or (xi) any dispute between Merchant and any third party or Merchant Personnel.
10. Term, Termination and Suspension
Term
1. The term of this Agreement (“Term”) shall begin as of when this Agreement is accepted by Merchant or when the Merchant first uses the Services and shall continue for thirty (30) days after which it shall be automatically renewed for additional and successive thirty (30) day periods. Either party may terminate this Agreement on fifteen (15) days prior notice to the other party for any reason or for no reason.
Termination
2. In order to protect Third Party Servicers, Payment Networks and Pay.com, Pay.com may terminate this Agreement effective immediately without prior notice for any of the following reasons:
a. insolvency, receivership, voluntary or involuntary bankruptcy, assignment of any of Merchant’s assets for the benefit of Merchant’s property creditors, or if any part of Merchant’s property is or becomes subject to any levy, seizure, assignment or sale for or by any creditor or governmental agency without being released within thirty (30) days thereafter;
b. if Merchant fails to pay any Fees when due;
c. if a Financial Services Provider (e.g. acquiring bank) terminates Merchant or does no permit Pay.com to supply Services to the Merchant;
d. if a Payment Network instructs Pay.com to terminate this Agreement;
e. if Merchant has misrepresented or omitted any information provided to Pay.com;
f. if Merchant is in breach of the Agreement, a Third Party Servicer Agreement , any Applicable Laws or the Rules;
g. if Pay.com believes, in its sole discretion, that the Merchant is or the relationship with the Merchant breaches or is likely to breach any Applicable Laws, or the Rules or a Third Party Servicer Agreement, in which case Pay.com shall have no obligation to explain the risks to the Merchant;
h. if Merchant, after Pay.com’s request, fails to send copies of proof of Payment Transactions to Pay.com;
i. if Merchant submits for processing Payment Transactions that were not originated as a result of a direct sale transaction between a Cardholder and Merchant in the normal course of business (“Laundering”);
j. in the event of a material change of Merchant’s business as described in the Application;
k. in the event the Payment Networks identify Merchant, its principal, or associated parties under any program designed to monitor merchants, or Merchant creates circumstances that cause harm or loss of goodwill to any Payment Network system; or
l. if Merchant is inactive for ninety (90) days and is not a seasonal Merchant.
3. Effect of Termination of the Agreement:
On any termination, all amounts owing by Merchant shall be immediately due and payable.
In the event that this Agreement is terminated for cause and Merchant is obligated to Pay.com for sums due and the principals of Merchant are liable for such debts, a negative credit report may be submitted to a credit-reporting agency. Merchant hereby releases, indemnifies and holds Pay.com and the Payment Networks harmless to the fullest extent permitted by applicable law for any loss or damage it may incur as a result of reporting Merchant or its principals to a credit reporting agency hereunder or as a consequence of Merchant or its principals being placed by Pay.com or its agents on the Payment Networks merchant monitoring lists.
In the event of termination of the Services for any reason, except for Merchant’s breach of this Agreement or Merchant termination without cause, prior to the end of the then current Term, Pay.com may provide Merchant with a refund of any pre-paid, but unused Fees related to such Services, subject to the following: (i) no refund shall be paid for the current month’s Services, regardless of the day on which Merchant cancels the Services; (ii) Pay.com will retain and not be obligated to refund any prepaid Fees up to and including the amount of Fees Merchant would have been required under this Agreement to pay for Merchant’s use of the Services for the two month period following the effective date of the termination of the Services. Merchant is not entitled to any refund for Pay.com’s termination of the Services based upon Merchant’s breach. If Merchant purchased access to the Services at a discounted price, any refund will lose the benefit of that discount.
Suspension
Pay.com may, at its discretion, suspend Merchant access to or otherwise modify, the Services and any component thereof, without notice in order to: (i) prevent damages to, or degradation of the integrity of, Pay.com’s internet network; (ii) comply with any Law; (iii) otherwise protect Pay.com from potential legal liability or harm to its reputation or business; or (iv) because Pay.com has opted to change the Services. Pay.com will use commercially reasonable efforts to notify Merchant of the reason(s) for such suspension or termination action as soon as reasonably practicable. Nothing contained in this Agreement will be construed to limit Pay.com’s actions or remedies or act as a waiver of Pay.com’s rights in any way with respect to any of the foregoing activities. Pay.com will not be responsible for any loss or damages incurred by Merchant as a result of any termination or suspension of access to or use of the Services.
11. Merchant Support.
Pay.com will use commercially reasonable efforts to provide Merchant with technical support services relating to the Services via its technical support website, email, or telephone. Pay.com shall, in no case, send any technical staff on site. Pay.com’s instruction and advice with the purpose of analyzing any issues arising and consequently determining the fault shall be complied by the Merchant under an explicit obligation in which case, he shall be available to the necessary extent and at the necessary times for rectifying the faults. Any settlements and other enquiries shall be sent by the Merchant to its dedicated relationship manager.
Pay.com may update the Services in its sole discretion which updates may alter, add or remove functionality of the Services. Except in the event of emergency or security-related maintenance where prior notice may not be practicable, on prior notice to Merchant, Pay.com may also, from time to time, schedule downtime for maintenance and upgrades to the Services.
12. Fees.
Fees
Access to the Services requires Merchant to pay Fees, as may be further described in the Application or otherwise on the Platform, the App or in the Account. All Fees are in Applicable Currency and are non-refundable, unless otherwise provided herein. Pay.com reserves the right to amend the Fees by posting new Fees on the Platform, in the App or in the Account; such changes shall take effect within thirty (30) days unless accepted by Merchant earlier or if Merchant does not close their Account within such delay. If Merchant has agreed to Fees in an Application that are different from those posted to the Site, the Fees in the Application shall prevail, however, Pay.com reserves the right to amend such Fees in order to pass through increases in third party costs, such as Payment Network interchange fees.
Payment
Merchant shall authorize Pay.com to collect payment of Fees from the Merchant Bank Account, credit card, debit card or other means of payment; Merchant authorizes Pay.com to charge all Fees and other amounts owing hereunder from such payment method. Merchant hereby directs Pay.com to instruct each Financial Service Provider that makes settlements to Merchant to set-off from such settlements any Fees owing hereunder.
The Services may include functionality for activating, updating, or canceling recurring payments for periodic charges. If Merchant activates or updates recurring payments through the Services, Merchant authorizes Pay.com to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Merchant’s account, all accrued sums on or before the payment due date for the accrued sums. If Merchant uses the Services to update or cancel any existing authorized one-time or recurring payment, it may take up to 10 business days for the update or cancellation to take effect.
Without limitation, Pay.com reserves the right to suspend the Services until all Fees or other amounts owing hereunder are paid in full or terminate this Agreement for late payment.
Fees quoted do not include, and Merchant shall hold Pay.com harmless from all sales, use, gross receipts, value-added, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transaction contemplated herein, other than taxes based on the net income or profits of Pay.com.
ACH Consent
Merchant desires to effect settlement of credits and debits from Merchant Bank Account(s) by means of ACH and/or wire transfer in conjunction with the Services for Merchant by Pay.com. In accordance with this desire, Merchant authorizes Pay.com and/or its affiliates to initiate debit and credit entries to Merchant Bank Account (the details of which are provided by Merchant through the Account or by other means acceptable to Pay.com). Merchant shall maintain sufficient funds in Merchant Bank Account to cover such debit transactions. Merchant states that Merchant has the authority to agree to such transactions and that Merchant Bank Account indicated is a valid and legitimate account for the handling of these transactions. This authority is to remain in effect until Pay.com receives written notice from Merchant revoking it. This authorization is for the payment of Fees or any other sums owed to Pay.com. Merchant certifies that the appropriate authorizations are in place to allow Merchant to authorize this method of settlement. All changes to the identification of Merchant Bank Account under this authorization must be made in writing in accordance with the Agreement. Merchant understands that if the information supplied as to the ABA Routing Number and Account Number of the Merchant Bank Account is incorrect, and funds are incorrectly deposited, Pay.com will attempt to assist Merchant in the recovery of such funds but has no liability as to restitution of the same. Merchant acknowledges that the origination of ACH transactions to the Merchant Bank Account must comply with the provisions of U.S. law.
13. Confidential Information.
Each party acknowledges that it may directly or indirectly disclose Confidential Information to the other party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each party agrees to treat such Confidential Information with the same degree of care and security as it treats its most confidential information. Each party may disclose such Confidential Information to employees and agents who require such knowledge to perform services under this Agreement. Except as otherwise contemplated by this Agreement, neither party shall disclose the Confidential Information of the other party to any third party without the prior written consent of the disclosing party, and the duty of confidentiality created by this section shall survive any termination of the Agreement. Merchant Data shall, without limitation, be Merchant Confidential Information. Pay.com Data and this Agreement, shall, without limitation, be Pay.com Confidential Information.
14. Merchant Representations and Warranties.
Merchant represents and warrants to Pay.com that Merchant:
1. has the legal authority to bind Merchant organization to this Agreement and to perform hereunder and under each Third Party Servicer Agreement to which Merchant is a party. Merchant is the exclusive owner of the Account and is not operating the Account on behalf of any third party;
2. has the legal capacity to enter into this Agreement and perform Merchant obligations hereunder;
3. is a business, charitable organization or not-for-profit organization and shall use the Services for only business purposes and not for individual consumer purposes;
4. shall immediately advise Pay.com of defects in the Services or any claim or threatened claim against Pay.com. Merchant shall immediately notify Pay.com of any defects in a Product for which a Third Party Servicer has been used as a payment method;
5. shall use of the Services in compliance with all Applicable Laws and the terms of this Agreement, the Rules and all applicable Financial Services Terms;
6. always hold all necessary licenses required from time to time for it to operate its business and be qualified to exercise its business in the areas it exercises it including but not limited to Applicable Laws concerning the registration of marketplaces and third party sellers with state departments of revenue and state banking departments;
7. proceed with all the updates and/or any other patches available in connection to the Services from time to time;
8. keep all the information requested on the website and/or the Software of the Pay.com updated immediately after the information included therein is not accurate and/or is false, untrue, inaccurate, incomplete and/or misleading;
9. not submit any Transaction on behalf or for the benefit of any other party. The Services are restricted only to the Merchant;
10. not submit a Transaction, which the Merchant knows or should have known are fraudulent or non-authorized by the Cardholder or have been authorized by the Cardholder in collision with the Merchant for fraudulent purposes;
11. not submit or undertake any Transaction falling outside the scope of the Merchant's business (as described to the Pay.com any time during the term of this Agreement), without Pay.com's prior approval. The Pay.com upon its discretion may inspect the activities of the Merchant from time to time;
12. not submit any Transaction which has previously been declined by the Financial Services Provider it entered a Financial Services Terms with, unless such retry attempt is permitted by the Financial Services Provider, and in any case, the Merchant must follow the instructions set by the respective Financial Services Provider, as to how, when, in which frequency and maximum number of attempts, it should make, in the attempt to retry a Transaction;
13. ensure that Cardholder is informed of the identity of the Merchant in a prominent place at every stage of interaction with the Cardholder so as the Merchant to be easily distinguished from any other party;
14. not use the Services in any manner, or in furtherance of any activity that may cause the Pay.com to be subject to investigation, prosecution, or legal action;
15. inform the Cardholder of all Merchant's responsibilities related to the Transaction, including delivery of goods (whether physical or digital) or the provision of services subject to the Transaction, customer services and dispute resolution and more particularly all of these in accordance with the terms and conditions applicable to the Transaction;
16. not provide in any manner any misleading information or an impression that the supplier of goods/services is the Financial Services Provider, the Card or Pay.com;
17. not require or encourage the Cardholder to waive their right to dispute a Transaction;
18. be solely responsible for all customer service issues relating to the Merchant's Products, including, inter alia, pricing, quality, fulfillment of the Merchant's obligations, cancellation order, returns, refunds, adjustments, warranty and customer support; the Pay.com shall not be responsible for and shall participate in any customer complaint resolution process;
19. refrain from offering any goods or services which are illegal or unethical, as deemed by Pay.com or Financial Services Provider, and/or is not compatible with the Pay.com’s and/or Financial Services Provider's requirements, such as they may be from time to time;
20. ensure that each Transaction is related only to the payment for the Product that Merchant provides in accordance with the terms of this Agreement and no request to the contrary shall be authorized;
21. deliver its Products to its Cardholders without undue delay;
22. ensure that no funds are received in connection with any illegal, fraudulent, deceptive or manipulative act or practice and that it is not sending or receiving funds to or from an illegal source;
23. provide with evidence to the Pay.com and/or the Financial Services Provider, if so requested by the Pay.com or the Financial Services Provider, of the sales records in any form, showing a proper ordering, sale and delivery of products and services. A system of storage and maintenance of copies of sales and proofs of delivery shall be established by the Merchant, in such a manner so as, to forward the said information within 24 hours of request. The Merchant understands that it is essential to provide sales records, which duly evidences a particular Transaction, sale, delivery and associated events and actions, immediately and within a required time frame as communicated to the Merchant in a particular case in order to meet deadlines and other requirements applicable to a particular case solving. The Merchant understands that failure to respond to such a retrieval request constitutes a violation of this Agreement. The Merchant must and does hereby agree to preserve all records pertaining to the Sales Records for at least five (5) years;
24. ensure that no content on its website (i.e including a reference to the Merchant's mobile application) violates any applicable laws and/or is not compatible with the Financial Services Providers' requirements and/or has been prohibited by Pay.com or the Financial Services Provider according to its equitable discretion. The Merchant shall have full liability and responsibility for the content and accuracy of its website; and
25. ensure that its website shall include any information and/or contents which are required by any applicable laws and/or as may be required from time to time with the Payment Networks and/or the PCI DSS and/or the Financial Services Provider and/or the Pay.com, including but not limited to, the following information which should be updated at all times and be easily accessible and with understandable manner, in accordance with all the above mentioned requirements:
a. legal information of the Merchant (i.e. company name, registered address, registration number);
b. principal place of business and any other location it operates (i.e. street address, city, state/province and postal code) on the same webpage as the checkout page used to present the final Transaction amount and within the sequence of webpages, the Cardholder accesses during the checkout process. A link to a separate web page operated by the Pay.com, does not meet this requirement;
c. contact information of customer service (i.e. telephone number, email address)
d. requesting Cardholder's correspondence address during checkout;
e. the Financial Services Providers word/picture marks to indicate which Card are accepted on the Merchant's website;
f. the logos of the Payment Networks accepted in the way they are indicated by the Payment Networks and any other information required by the Payment Networks;
g. complete and clear description of Products offered;
h. terms and conditions;
i. consumer data privacy policy including information about security capabilities and payment Card Data encryption, information about not retaining customers' card details and a statement as to whom it discloses Transaction data and Card Data;
j. return/refund/cancellation policy;
k. delivery policy describing how clients will receive the service and / or products;
l. Card description or a deposit and withdrawal policy;
m. checkout page;
n. payment currency;
o. all charges to be paid when making a purchase/order, including delivery, packaging, taxes and other charges;
p. applicable export or legal restrictions, warnings (if any); and
q. cookie policy.
Pay.com shall not be responsible for any costs incurred by the Merchant for its compliance with this clause or any other clauses of this Agreement.
15. No Warranties by Pay.com.
Content, Third Party Servicers
Content from Third Party Servicers, other users, suppliers, advertisers, and other third parties may be made available to Merchant through the Services. Pay.com does not control such content; Merchant agrees that Pay.com is not responsible for any such content. Pay.com does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content and Pay.com assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users, advertisers, and other third parties or violation of any third party rights related to such content. The Services may contain links to websites not operated by Pay.com. Pay.com is not responsible for the content, products, materials, or practices (including privacy practices) of such websites. Merchant understands that by using the Services, Merchant may be exposed to third-party websites that Merchant finds offensive, indecent or otherwise objectionable. Pay.com makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites, products or services accessible by hyperlink or otherwise from the Site or Services including but not limited to Third Party Servicer Services. Pay.com provides these links for Merchant’s convenience only and does not control such third parties. Pay.com’s inclusion of links to such links or integrations does not imply any endorsement of the materials on such third party services or any association with their operators. The Services may contain links to sites that are operated by Pay.com but which operate under different terms. It is Merchant’s responsibility to review the privacy policies and terms and conditions of any other site Merchant visits. MERCHANT AGREES THAT IN NO EVENT WILL Pay.com BE LIABLE TO Merchant IN CONNECTION WITH ANY WEBSITES, CONTENT, MATERIALS, OR PRACTICES OF ANY THIRD PARTY.
Services
THE SERVICES AND ALL MATERIAL OR CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAY.COM HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PAY.COM DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MERCHANT FROM THE SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE PAY.COM ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. MERCHANT ASSUMES ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM MERCHANT’S USE OF OR ACCESS TO THE SERVICES, MERCHANT’S DEALING WITH ANY THIRD PARTY SERVICER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. MERCHANT UNDERSTANDS AND AGREES THAT MERCHANT USES THE SERVICES, AND USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS MATERIALS OR CONTENT THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES, AT MERCHANT’S OWN DISCRETION AND RISK, AND THAT MERCHANT IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO MERCHANT’S PROPERTY (INCLUDING MERCHANT’S DEVICES USED IN CONNECTION WITH THE SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND MERCHANT MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION
16. Limitation of Liability.
IN NO EVENT WILL PAY.COM BE LIABLE FOR DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT EXCEEDING FEES PAID IN RESPECT OF THE SERVICES DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL PAY.COM’S SUPPLIERS, AFFILIATES, LICENSORS OR ANY THIRD PARTY SERVICERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
IN NO EVENT SHALL PAY.COM BE LIABLE TO MERCHANT FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFITS, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL PAY.COM BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
TO THE EXTENT THAT PAY.COM MAY NOT, AS A MATTER OF LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF PAY.COM’S LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
Pay.com shall not be liable for any claims, losses or liabilities related to any Product, Client or Third Party Servicer.
17. Notices.
Notices sent to either Party shall be effective when delivered in person or by email, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the official contact designated below and immediately after being received by the other party’s server. Notices must be in writing and addressed as follows:
For Pay.com, addressed to Merchant Care at: PayCom Us, Inc. dba Pay.com, a Delaware corporation with offices at 8 The Green, Ste R, Dover DE, 19901; or (ii) [email protected]
For Merchant, to the addresses or email address provided by Merchant on Application (as such address or email address may be updated by Merchant from time to time in accordance with this Agreement).
Pay.com may change its contact information by giving notice of such change to the Merchant. Merchant may change its contact information by using the currently available interfaces on the Platform, Account or App. For contractual purposes, Merchant (i) consents to receive communications from Pay.com in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that Pay.com provides to Merchant electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Merchant’s consent to receive Communications and do business electronically, and Pay.com’s agreement to do so, applies to all of Merchant’s interactions and transactions with Pay.com. The foregoing does not affect Merchant’s non-waivable rights. If Merchant withdraws such consent, from that time forward, Merchant must stop using the Services. The withdrawal of Merchant’s consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between Pay.com prior to the time Merchant withdraws its consent.
By providing Pay.com with Merchant’s mobile telephone number, Merchant consents to receiving text messages at that number as requested for account verification, invitations, and other purposes related to the Services. While Pay.com does not charge a fee for text messages, Merchant’s carrier may charge standard messaging, data, and other fees. Merchant is responsible for these charges. Pay.com may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. Pay.com is not responsible for the timeliness or final delivery of the message, as this is out of our control and is the responsibility of the cellular telephone operator or other networks.
18. Governing Law and Arbitration
Governing Law and Arbitration US Merchants
The following shall apply with respect to U.S. Merchants:
PLEASE READ THIS SECTION CAREFULLY, AS IT LIMITS THE MANNER IN WHICH Merchant MAY SEEK RELIEF, AND REQUIRES YOU ARBITRATE DISPUTES WITH Pay.com. If Merchant has a dispute with Pay.com, Pay.com will first seek to resolve such a dispute through our support team.
All disputes arising under or in connection with the Agreement will be submitted to binding arbitration in Bergen County, New Jersey, USA pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and the procedures set forth below.
Arbitration. All disputes that cannot be resolved pursuant to the internal issue resolution process identified above will be submitted to and settled by final and binding arbitration. The arbitration will take place in Bergen County, New Jersey, USA and will apply the governing law of this Agreement. The final and binding arbitration will be performed by a single arbitrator who is a practicing commercial lawyer in English and in accordance with and subject to the Commercial Arbitration Rules of the AAA then in effect. The decision of the arbitrator will be final and binding, and judgment on the award may be entered in any court of competent jurisdiction. The arbitrator will be bound by the warranties, limitations of liability, and other provisions of this Agreement. Notwithstanding the foregoing, each party may seek injunctive relief in a court of competent jurisdiction, where appropriate, to protect its rights pending the outcome of the arbitration.
Jurisdiction/Venue; Governing Law. With respect to Merchants located in the U.S., this Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey (irrespective of its choice of law principles). The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in federal or state court in Bergen County, New Jersey, USA. Subject to the arbitration provision set out above, each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party, and each party hereby submits to the exclusive personal jurisdiction and venue of such courts.
NOTICE: BOTH MERCHANT AND PAY.COM AGREE TO HAVE ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT DECIDED BY NEUTRAL BINDING ARBITRATION AND ARE GIVING UP ANY RIGHTS IT MIGHT POSSESS TO HAVE THOSE MATTERS LITIGATED IN A COURT OR JURY TRIAL. BY AGREEING TO THIS AGREEMENT, BOTH MERCHANT AND PAY.COM ARE GIVING UP THEIR RESPECTIVE JUDICIAL RIGHTS TO DISCOVERY AND APPEAL EXCEPT TO THE EXTENT THAT THEY ARE SPECIFICALLY PROVIDED FOR UNDER THIS AGREEMENT. IF ANY PARTY REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, THAT PARTY MAY BE COMPELLED TO ARBITRATE UNDER FEDERAL OR STATE LAW. BOTH MERCHANT AND PAY.COM CONFIRM THEIR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
19.General Provisions.
1. E-SIGN CONSENT. Under the Electronic Signatures in Global and National Commerce Act (“E-Sign”), this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when (1) your electronic signature is associated with the Agreement and related documents, (2) you consent and intend to be bound by the Agreement and related documents, and (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). This Agreement and all related electronic documents shall be governed by the provisions of E-Sign. You agree (i) that the Agreement and related documents shall be effective by electronic means (ii) to be bound by the terms and conditions of this Agreement and related documents and (iii) that you have the ability to print or otherwise store the Agreement and related documents.
2. Assignment. Merchant may not assign this Agreement or any of its rights or obligations hereunder to any third party without prior written consent of Pay.com. Any assignment in violation of this section shall be void. Pay.com may assign this Agreement without restriction and without any notice to Merchant. The terms of this Agreement shall be binding upon permitted successors and assigns. Merchant agrees that on a sale of all or substantially all of the assets of Pay.com, Pay.com may include in the sale the copy of Merchant’s payment method (e.g. credit card information) used to pay Fees hereunder as well as other Merchant Data and Customer Data on the Platform.
3. Right to List as a Merchant. Merchant agrees that Pay.com may utilize Merchant’s entity name in listings of current customers. Use of Merchant’s name in any other marketing materials or press announcements will be submitted to Merchant in advance for approval, and such approval will not be unreasonably withheld.
4. Compliance with Export Regulations. Merchant has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold Pay.com harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. Merchant shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.
5. European Union Residents. If Merchant resides in the European Union (EU) or if any transfer of information between Merchant and the Services is governed by the European Union Data Protection Directive or national laws implementing that Directive, then Merchant consents to the transfer of such information outside of the European Union to its country and to such other countries as may be contemplated by the features and activities provided by the Services.
6. Construction. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The term “including” means “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
7. Force Majeure. Merchant acknowledges and understands that if Pay.com is unable to provide Services as a result of a force majeure event Pay.com will not be in breach of this Agreement and will not be liable for delays caused by such event. A force majeure event means any event beyond the control of Pay.com.
8. Severable. NOTHING IN THIS AGREEMENT WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO MERCHANT. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of Applicable Law and the validity, legality, and enforceability of all other provisions shall remain in full force and effect.
9. Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law in one instance shall not preclude enforcement thereof on future occasions.
10. Independent Contractors. Merchant’s relationship to Pay.com is that of an independent contractor, and neither Party is an agent or partner of the other. Merchant will not have, and will not represent to any third party that it has, any authority to act on behalf of Pay.com. Pay.com retains the right to perform some of all of its services hereunder itself or through another member of the Pay.com Group or another third party retained by Pay.com for such purpose.
11. Entire Agreement. In the event of any conflict between this Agreement and the information provided during Application or otherwise on the Platform, Account, in the App or the EULA, this Agreement shall control. In the event of any inconsistency between the body of this Agreement and the Pay.com Privacy Policy, the former shall prevail. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior agreements, negotiations, or other communications, whether written or oral. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
12. Amendments. Pay.com reserves the right to change this Agreement at any time and from time to time upon notice by posting revisions to this Agreement (including the description of the Services) on the Platform. Continued use of the Services after Merchant become aware of any such changes shall constitute Merchant’s consent to such changes. Merchant is responsible for regularly reviewing the most current version of this Agreement which is available on the Platform.
13. English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English.
14. Survival. Upon termination or expiration of this Agreement for any reason: (i) all rights and obligations of both Parties (except for Merchant’s payment of all sums then owing), including all licenses granted hereunder, shall immediately terminate except as provided below; (ii) within thirty (30) days after the effective date of termination, each Party shall comply with the obligations to return or destroy all Confidential Information. The following Sections will also survive expiration or termination of this Agreement for any reason: the introductory paragraph, Sections 3 Limitations, 5 Pay.com Intellectual Property Rights, 6 Merchant Data Consent, 8 Indemnity, 12 Fees, 13 Confidential Information, 14 Merchant Warranties, 15 No Warranties by Pay.com, 16 Limitation of Liability, 17 Notices, 18 Governing Law and Arbitration, 19 General Provisions and 0 Glossary.
20. Glossary.
The following words used in this Agreement are defined as follows:
Account means an account made available to Merchant through which Merchant can transmit instructions or receive information in relation to the Services.
ACH Consent means the consent of a U.S. Merchant to carry out debits and credits on the Merchant Bank Account set out above.
ACH means Automated Clearing House payment transaction.
Affiliate means, in relation to a Person, another Person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Person, or a Person's principal partners, shareholders, or owners of some other ownership interest.
AoC shall mean attestation of compliance.
API means application programming interface.
App means an application (if any) available for download to certain mobile devices through which Merchant can access the Services, subject to the EULA.
Applicable Currency means U.S. dollars or such other currency as may be indicated in the Application, App or Account.
Applicable Laws shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction.
Application means the paper or online application completed by Merchant when applying for the Services all of which is incorporated herein by reference.
Card means a credit card, debit card, prepaid card or other payment card or representation thereof that is issued by a bank or financial intuition that is a member of a Payment Network and that has authorized the Card for use on such Payment Network.
Card Information is information related to an Customer or the Customer’s Card, that is obtained by Merchant from the Customer’s Card, or from the Customer in connection with his or her use of a Card (for example a security code, a PIN number, or the Customer’s zip code when provided as part of an address verification system). Without limiting the foregoing, such information may include the Card account number and expiration date, the Customer’s name or date of birth, PIN data, security code data (such as CVV2 and CVC2) and any data read, scanned, imprinted, or otherwise obtained from the Card, whether printed thereon, or magnetically, electronically or otherwise stored thereon.
Cardholder or Customer means a Person who wishes to carry out a Card payment Transaction with Merchant for which Merchant wishes to use the Services.
Confidential Information means all proprietary, secret or confidential information or data relating to either party and its affiliates, operations, employees, products or services, clients, customers or potential customers. Confidential Information shall include customer lists, cardholder account numbers, pricing information, computer access codes, instruction and/or procedural manuals, and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by Law.
Customer Data means any and all non-public personal information of Customers related to Transactions, such as for example, Card information.
Customer Relationship means the agreement or other relationship between a Merchant and a Customer where either wishes to make use of the Services in relation thereto.
Data means Merchant Data, Pay.com Data or Customer Data.
Data Transaction means sending or attempted sending of Data, by way of the Services, between any of Merchant, Pay.com and a Third Party Servicer.
EULA means an end-user license agreement pursuant to which the App is licensed to the Merchant for the limited purpose of accessing the Services.
Fees means the fees for which Merchant is liable for use of the Services, as disclosed in the Application or otherwise on the Platform, the App or in the Account, such as they may be from time to time.
Financial Services are services of Financial Services Providers supplied under Financial Services Terms and may include payment processing of Card Payment Transactions and other Payment Transactions specified therein.
Financial Services Provider means a bank or financial institution that has a relationships with a Processor that has agreed to evaluate and provide merchant account and payment authorization services to Merchant.
Financial Services Terms means an agreement between Merchant and a Financial Services Provider pursuant to which the Financial Services Provider processes Payment Transactions for the Merchant.
Force Majeure means any circumstance not within a Party's reasonable control including, without limitation: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition; (f) collapse of buildings, fire, explosion or accident; (g) any labour or trade dispute, strikes, industrial action or lockouts; or (h) interruption or failure of utility service.
Gateway Services means the service of a real-time, secure data transmission and data processing for multiple business-to-customer payment methods including Cards.
Intellectual Property Rights means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress, works of authorship, inventions, discoveries and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Invoice means an electronic document that represents an amount owing from a Customer to a Merchant for which the Merchant wishes to receive payment by way of the Services.
Issuer means a member of a Payment Network that is in the business of issuing Cards.
MasterCard means MasterCard International, Inc. or any of its Affiliates or licensees.
Merchant Bank Account means a bank account of the Merchant designated by the Merchant in the Application or otherwise via the Platform, App or Account as the account into which Payment Transaction amounts should be deposited and from which Fees shall be debited.
Merchant Data means any and all non-public identifiable personal information of Merchants.
Merchant Device means computer system, tablet or phone used by Merchant to access the Services or manage Data or Merchant business.
Merchant means the merchant that is identified in the Application or otherwise via the Platform, App or Account as accepting this Agreement.
Merchant Site means the web site(s), applications or other platforms used by the Merchant to solicit Customers or accept Payment Transactions.
Party means either Merchant or Pay.com and “Parties” means both Merchant and Pay.com.
Pay.com Data means information concerning Services or provided to Merchant by Pay.com through the Account or otherwise.
Pay.com Group means Pay.com and its Affiliates.
Pay.com means PayCom Us, Inc. dba Pay.com, a Delaware corporation with offices at 8 The Green, Ste R, Dover DE, 19901.
Pay.com Privacy Policy means the privacy policy of Pay.com posted at https://pay.com/legal/privacy-policy such as it is from time to time.
Payment Network means Visa U.S.A., Inc., Visa International, Inc., MasterCard International, Inc., and any other credit or debit card issuing company whose cards are processed by Financial Services Provider, such as they may be from time to time.
Payment Transaction means the actual or attempted payment of funds or other value by a Customer or Merchant occurring through use of the Services.
Person is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity.
Processor means an entity with which Merchant, Pay.com or Financial Services Provider has established a relationship that performs the back-end authorization and processing of Payment Transactions between your Financial Services Provider and the Cardholder's bank.
Product means any product or service for sale or provided by Merchant.
Program Guide means documentation provided by Pay.com from time to time setting out certain specifications applicable to the Services.
Prohibited Activity means the operation of or the direct or indirect facilitation of any of: (i) any activity that is illegal under Applicable Laws where any of Merchant, Customer or Pay.com are located; (ii) any activity the is indicated as a Prohibited Activity in the Application, the App, the Platform, Account or Program Guide; (iii) sale of drugs, alcohol and tobacco products; (iv) any service providing peripheral support of illegal activities (i.e. drugs); (v) adult related to bestiality, child pornography, necrophilia, rape and other sexually oriented material; (vi) online pharmacies, pharmaceutical products and prescription drugs; (vii) goods/services/content without mandatory acceptance of 18+ statement by the Cardholder before providing access to such 18+ goods/services/content; (viii) facilitation of gambling in jurisdictions where it is illegal; (ix) sale of counterfeit merchandise; (x) sale of goods, digital downloads or other services in violation of intellectual property rights; sale of illegal electronic devices (such as modification chips and jammers); (xi) multilevel marketing schemes (pyramid, “get rich quick” or Ponzi schemes); (xii) weapons, firearms, munitions of any sort; (xiii) collection of donations, charities and fundraising networks; (xiv) promotion of violence, terrorism, ethnic strife, extremisms; (xv) long-term investment and insurance companies; (xvi) anything that relates to corruption and bribery; (xvii) provision of services, goods and content without a license where such license is required; (xviii) any Merchant (or one with Affiliates) that has been subject of a criminal investigation or is in a sanctions database; (xix) any Merchant (or one with Affiliates) that is currently in business bankruptcy or has been the subject of bankruptcy or receivership proceeding in the last 3 years.
Rules means the rules and regulations of Payment Networks, such as they may be from time to time, including but not limited to those of Visa available here https://usa.visa.com/dam/VCOM/download/about-visa/visa-rules-public.pdf) and MasterCard available here https://www.mastercard.us/en-us/business/overview/support/rules.html/l and other payment card associations or brands as well as other industry as well as the Program Guide.
Security Standards means all rules, regulations, standards or guidelines adopted or required by the Payment Networks or the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Card Information, including but not limited to the Payment Card Industry Data Security Standards (“PCI DSS”), Visa’s Cardholder Information Security Program (“CISP”), Discover’s Information Security & Compliance Program (“DISC”), American Express’s Data Security Operating Policy, MasterCard’s Site Data Protection Program (“SDP”), Visa’s Payment Application Best Practices (“PABP”), the Payment Card Industry’s Payment Application Data Security Standard (“PA DSS”), MasterCard’s POS Terminal Security program and the Payment Card Industry PIN Entry Device Standard, in each case as they may be amended from time to time. Detailed information about PCI DSS, can be found at the PCI DSS Counsel’s website: www.pcisecuritystandards.org. Detailed information about Visa’s CISP program can be found at Visa’s CISP website: www.visa.com/cisp. Detailed information about Mastercard’s SDP program can be found at the Mastercard SDP website: www.mastercard.com/sdp. Detailed information about DISC can be found at Discover DISC website: http://www.discovernetwork.com/fraudsecurity/disc.html. Detailed information can be found at American Express’ website: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf
Services means the services provided by Pay.com as described in section 1 of this Agreement.
Site means www.pay.com together with all other sites and portals through which Services.
Term has the meaning set out in section 10.1.
Third Party Servicer Agreement means an agreement between Merchant and a Third Party Servicer concerning the supply of Third Party Servicer Services to Merchant. The BANK Agreement is a Third Party Servicer Agreement.
Third Party Servicer means a third party that has entered into Third Party Servicer Agreement with Merchant pursuant to which the Third Party Servicer provides Third Party Servicer Services to Merchant. For each Merchant that has entered Third Party Servicer Agreement with a Financial Services Provider, such Financial Services Provider is a Third Party Servicer.
Third Party Servicer Services means the services of a Third Party Servicer provided pursuant to Third Party Servicer Agreement.
Transaction means a Data Transaction or a Payment Transaction.
Visa means Visa U.S.A., Inc. or Visa International, Inc. or any of its Affiliates or licensees.
Exhibit A – US Data Protection Addendum
This Addendum is added to and incorporated as part of the Pay.com Services Agreement between the parties.
To the extent that the Services require the Processing of Client Personal Information, the Parties agree to the following:
DEFINITIONS
Capitalized terms used but not defined in this Addendum shall have the meaning set forth in the Agreement. The following terms shall have the meanings set out below:
A. “Client Personal Information” is the Personal Information processed by Processor under or in connection with the Agreement;
B. “Data Protection Laws” are the laws and regulations applicable to the Processing of Personal Information including but not limited to the California Consumer Privacy Act (“CCPA”) and the California Privacy Rights Act (“CPRA”);
C. “Personal Information” is information that identifies, relates to, describes, is reasonably capable of being associated with or could reasonably be linked, directly or indirectly, with a particular identifiable person or household;
D. “Personal Information Breach” is a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to, Client Personal Information;
E. “Process” means the collection, handling, use, storage, disclosure, transmission or any other operation performed on Personal Information;
F. “Processor” means PayCom Us, Inc. dba Pay.com, a Delaware corporation with offices at 8 The Green, Ste R, Dover DE, 19901.
G. “Services” means the services, work, tasks or other activities, including Processing that Processor will perform for Merchant, as described in the Agreement; and
H. “Subprocessor” is any third party who is engaged by Processor to carry out specific Processing activities with Client Personal Information.
ROLES OF THE PARTIES
The Parties agree that, except as otherwise expressly set forth in the Agreement, Merchant shall be the entity that determines the purposes and means of the Processing of Client Personal Information and has appointed Processor to Process the Client Personal Information.
SERVICE PROVIDER OBLIGATIONS
A. Processor agrees to comply with applicable Data Protection Laws and shall instruct its employees, agents and Subprocessors comply with the Applicable Data Protection Laws as well as the terms of the Agreement with respect to Client Personal Information.
B. Processor will: (a) only Process Client Personal Information to the extent strictly necessary for the performance of its obligations under the Agreement, (b) comply with all written instructions from Merchant in relation to Client Personal Information.
C. Processor will not: (a) use, distribute, sell, rent, release, disclose, disseminate, make available, transfer or otherwise communicate Client Personal Information to another party for monetary or other valuable consideration, (b) retain, use or disclose Client Personal Information for any purpose other than the specific purpose of performing the Services specified in the Agreement, including retaining, using or disclosing the Client Personal Information for a commercial purpose other than providing the services specified in the Agreement, (c) retain, use, or disclose the Client Personal Information outside of the direct business relationship between Merchant and Processor.
CONFIDENTIALITY
Subject to any confidentiality obligations in the Agreement, Processor shall take reasonable steps to ensure the reliability of any of its employees, agents and Subcontractors who may have access to Client Personal Information, ensuring in each case that access is limited to those individuals who need to access such data as strictly necessary to deliver the Services. Further, Processor shall ensure that Processor personnel are subject to confidentiality obligations at least as restrictive as those contained in this Addendum or are subject to an appropriate statutory obligation of confidentiality.
DATA SECURITY
Subject to any other security obligations in the Agreement, Service Provider will implement and maintain appropriate technical and organizational measures consistent with those required by Applicable Data Protection Laws for the protection of the security, confidentiality, and integrity of the Personal Information. Service Provider will not materially decrease the overall security of the Services while the Agreement is in effect.
INDIVIDUAL RIGHTS
Processor shall promptly notify Merchant, and provide full details thereof, if it receives any communication from any individual or any representative of an individual requesting to exercise their rights under Applicable Data Protection Laws with regard to Client Personal Information. Processor shall provide reasonable assistance and cooperation as is necessary to enable Merchant to comply with the exercise of such rights by an individual.
PERSONAL INFORMATION BREACH
Processor shall notify Merchant without undue delay upon becoming aware of a Personal Information Breach and shall provide Merchant with sufficient information which allows Merchant to meet any obligations to report a Personal Information breach under Applicable Data Protection Laws. Such notification shall at a minimum: (i) describe the nature of the Personal Information breach, the categories and numbers of individuals concerned, and the categories and numbers of records concerned; (ii) describe the likely consequences of the Personal Information breach; and (iii) describe the measures taken or proposed to be taken to address the Personal Information Breach.
SUBPROCESSORS
Merchant consents to Processor engaging Subprocessors to Process Client Personal Information provided such engagements are consistent with the terms of this Addendum and the Agreement. Processor shall, upon request, provide Merchant a list of Subprocessors who process Client Personal Information.
RETURN OR DISPOSAL OF DATA
Upon expiration or termination of the Agreement (or sooner if reasonably requested by Merchant), Processor shall securely delete or return all Client Personal Information, including any automatically created archival copies of such data, in its possession or under its control (including all Client Personal Information Processed by any Subprocessor), in accordance with the terms and timelines of the Agreement, or if not stated, within thirty (30) days of the Agreement’s termination or expiration, unless otherwise required by Applicable Data Protection Laws.
ADDITIONAL TERMS
A. The obligations in this Addendum shall continue for as long as any Client Personal Information remains in Processor’ custody or control.
B. All other terms the Agreement not expressly modified by this Addendum shall remain in full force and effect.
C. The provisions of this Addendum are supplemental to the provisions of the Agreement. In the event of inconsistencies between the provisions of this Addendum and the provisions of the Agreement, the provisions of this Addendum shall prevail.
D. Processor is authorized to Process Client Personal Information collected from individuals located outside the United States and may Process Client Personal Information inside or outside of the United States.