Last updated 18 August 2023
This Pay.com services agreement (“Agreement”) is between the merchant that accepts this Agreement (“Merchant”) and Pay.Com Us, Inc., a Delaware corporation with offices at 8 The Green, Ste R, Dover DE, 19901 (“Pay.com”) governing Merchant use of certain services as defined in this Agreement. Each of Merchant and Pay.com are referred to as a “Party” throughout this Agreement, and together, the “Parties”.
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, 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’S RIGHT TO GO TO COURT to assert or defend Merchant’s 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.
1.1. In order to receive services, Merchant will need to complete an online merchant application as notified by Pay.com to Merchant from time to time (the “Merchant Application”).
1.2. Amongst other things, the Merchant will select certain of Pay.com’s services which Merchant wishes to receive, and, from the point when Pay.com accepts the Merchant Application, these will constitute the “Services” for the purposes of this Agreement, the scope of which may be varied by mutual agreement of the Parties from time to time.
1.3 Pay.com may, at its sole discretion and without providing Merchant with its reasons, decide whether or not to accept the Merchant Application. Pay.com shall notify Merchant if and when it accepts the Merchant Application.
2.1. If Pay.com accepts the Merchant Application, Pay.com will provide the Services to Merchant, subject to and in compliance with the terms of this Agreement.
2.2. Pay.com does not convey any right, title or interest in the Services or Portal to Merchant.
2.3. Merchant acknowledges and agrees that Pay.com is not responsible for:
2.3.1 the availability, accuracy, timeliness or completeness of any data transmitted to Pay.com by Merchant or any Buyer, or any output or results of the Services offered based in whole or in part on such data;
2.3.2 the results of any credit inquiry, the operation of websites, internet service providers or the Financial Services Provider, 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;
2.3.3 any consequences of any preferences and/or specifications expressed by Merchant to Pay.com, whether through the Portal or otherwise;
2.3.4 acts or omissions of the Financial Services Provider, including without limitation the Financial Services Provider ceasing to provide any Payment Methods from time to time; or
2.3.5 any losses, failures or errors attributable to Pay.com not having received correct and complete details required to make a Transaction (including without limitation where such non-receipt is attributable to telecommunication or internet failure).
2.4. Pay.com may set minimum and maximum monthly thresholds per Transaction and/or maximum daily, weekly or monthly limits for volumes of Transactions processed. Pay.com shall provide Merchant with reasonable notice of such thresholds.
2.5. Merchant acknowledges and agrees that any dispute regarding any Product is between Buyer and the Merchant. If the Buyer seeks to involve Pay.com in any such dispute for any reason, Merchant shall engage with the Buyer and make it clear that Pay.com should not be involved. Merchant shall indemnify Pay.com against any costs involved with dealing with any such dispute, provided that Pay.com takes reasonable steps to refer the dispute back to Merchant.
2.6. Pay.com does not perform Financial Services for Merchant under this Agreement. Financial Services 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.
2.7. Pay.com may set minimum and maximum monthly thresholds per Transaction, or maximum daily, weekly or monthly limits for volumes of Transactions processed. Pay.com shall provide Merchant with reasonable notice of such thresholds.
2.8. 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.
2.9. 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.
2.10. 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:
2.10.1 notify all relevant Merchant employees that calls with Pay.com may be monitored and
2.10.2 indemnify and hold harmless Pay.com from any claim arising as a result of Merchant’s failure to do so.
2.11. Pay.com may update the Services in its sole discretion which updates may alter, add or remove functionality of the Services.
3.1. 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.
4.1. Pay.com may suspend access to the Services in order to:
4.1.1 carry out maintenance work (including making changes required in order to continue to provide the Services at their current standard and/or to respond to changes made by any Financial Services Provider); and/or
4.1.2 prevent or mitigate any threat to the security of the Services or the Portal; and/or
4.1.3 comply with Law.
Pay.com shall use reasonable endeavours to provide reasonable notice of any such suspension which has a noticeable impact on the Merchant.
4.2. Pay.com may suspend processing of Transactions if is instructed by the Financial Services Provider to do so. A non-exhaustive example of when this may occur is where the level of Chargebacks or fraud exceeds the levels tolerated by the Financial Services Provider or a Scheme. Where this occurs:
4.2.1 Pay.com shall notify the Merchant of the suspension as soon as it is reasonably able to do so; and
4.2.2 both Parties agree to use reasonable endeavours to liaise with the Financial Services Provider to lift the suspension.
4.3. Pay.com may suspend this Agreement at any time on giving notice to Merchant with immediate effect if:
4.3.1 any Fees are outstanding, provided that Pay.com will promptly reinstate the Services once the Fees are paid; or
4.3.2 Pay.com believes that continuing to provide the Services during the period of suspension would violate any Laws or Financial Services Terms;
4.3.3 a Financial Services Provider or Scheme Owner requires or directs Pay.com to do so, or Pay.com, acting reasonably and in good faith, believes that the they would be likely to do so if they brought their attention to the relevant matter;
4.3.4 there is a material change of Merchant’s Business;
4.3.5 Merchant does not update in a timely manner its implementation of the Services to the latest production version Pay.com recommends or requires;
4.3.6 Merchant does not respond in a timely manner to any Pay.com request information, or provides false or misleading information;
4.3.7 Merchant breaches:
(a) this Agreement or any other agreement between the parties (whether or not such breach amounts to a material breach); or
(b) any Financial Services Terms, or does not have any Financial Services Terms in place at any time;
4.3.8 Merchant enters into insolvency, receivership, voluntary or involuntary bankruptcy, there is an 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; or
4.3.9 Pay.com believes that Merchant’s use of the Services:
(a) is or may be harmful to Pay.com or any third party;
(b) presents an unacceptable level of credit risk;
(c) increases, or may increase, the rate of chargebacks and/or fraud that Pay.com observes;
(d) degrades, or may degrade, the security, stability or reliability of the Services, the Portal or any other Pay.com or third party system;
(e) enables or facilitates, or may enable or facilitate, illegal or prohibited transactions; or
(f) is or may be unlawful.
5.1. The Merchant is responsible for the necessary implementation of/or adaptation to its ecommerce solution in order to enable communication with the Service.
5.2. The Merchant must carry out testing of the integration of its ecommerce solution with the Service in accordance with Pay.com’s instructions before the Service can be deployed.
5.3. The Merchant is responsible for any and all expenses incurred related to implementation and testing.
5.4. The Merchant’s equipment and ecommerce solution must at all times comply with the requirements and specifications specified by Pay.com for the use of the Service from time to time. Without limitation to this general obligation, Merchant agrees to update its API integration in accordance with Pay.com’s requirements within 3 months of receiving notification from Pay.com requiring it to do so.
5.5. The Merchant shall:
5.5.1 at all times have in place an appropriate agreement with any Financial Services Provider required by Pay.com. At the date of this Agreement, the Financial Services Provider’s terms are set out at https://pay.com/legal/us-cross-river-bank-service-agreement-terms. Merchant acknowledges and agrees that the Service is provided by Pay.com as an Independent Sales Organization of the Financial Services Provider;
5.5.2 comply with:
(a) all Laws applicable at the country or countries that it offers Products (including without limitation those governing, privacy, consumer and distant sales contracts);
(b) PCI DSS for each Card Scheme to which it is connected via the Services, and each payment type in respect of which the Financial Services Provider requires the Merchant to be PCI DSS compliant. The Merchant must provide Pay.com with its self assessment and certificate on request, and acknowledges and agrees that any PCI non-compliance fee levied by Pay.com shall not be Pay.com’s exclusive remedy for such non-compliance;
(c) all of the requirements communicated to it from time to time in connection with the Services by Pay.com (including without limitation user guides);
(d) the Rules; and
(e) the policies, procedures and guidelines of the Financial Services Provider.
5.5.3 always hold all necessary licenses required from time to time for it to operate Merchant’s Business;
5.5.4 keep all the information provided to Pay.com accurate and up to date at all times;
5.5.5 not submit a Transaction:
(a) which the Merchant knows or should have known are fraudulent or non-authorized by the Cardholder or have been authorized by the Cardholder in collusion with the Merchant for fraudulent purposes;
(b) 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; or
(c) which falls outside the scope of the Merchant’s Business, without Pay.com’s prior approval;
5.5.6 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;
5.5.7 not provide in any manner any misleading information or an impression that the supplier of goods/services is the Operator, the Payment Method and/or Service Provider;
5.5.8 not, in any manner, require the Cardholder to waive his/her own right to dispute a Transaction; and
5.5.9 keep and maintain accurate records of all Transactions and associated actions (including without limitation delivery records) for at least five (5) years after each Transaction, and provide all such records to Pay.com on request.
5.6. Merchant shall provide Pay.com with all reasonable co-operation in confirming that Merchant has complied with its obligations under this Agreement, including by providing Pay.com with:
5.6.1 a copy of its current PCI DSS Attestation of Compliance and/or Report on Compliance from time to time; and
5.6.2 access to all of its website (including, if relevant, areas to which access is restricted).
5.7. Merchant must take all reasonable steps to keep Portal access details secure, including ensuring that passwords are not shared between authorised individuals or disclosed to any individuals who are not authorised to access the Portal.
5.8. Merchant shall inform Pay.com immediately upon becoming aware or suspicious of unauthorized use of or access to any password.
6.Intellectual Property Rights
6.1. Pay.com expressly reserves all Intellectual Property Rights in the Services, Portal, all systems supporting or operating either and all materials provided by Pay.com hereunder. All right, title and interest in the Services, the Portal 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.
6.2. As part of the Services, Pay.com hereby grants to Merchant a non-exclusive, non-transferable, right to use the Portal and the Services in accordance with this Agreement. Merchant may not sub-license this right to any third party, or otherwise provide any third party with access to the Services or the Portal, provided that where (and only where) this is indicated on the Merchant Application and agreed with Pay.com, Merchant may process Transactions for third parties.
6.3. The Merchant will not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade and technological secrets of the services, software and technology of Pay.com.
6.4. The Merchant understands and agrees that it shall have no right to use the proprietary name and/or symbol of Pay.com, the Financial Services Provider or any Payment Method, except as provided herein and/or as otherwise being permitted to do so by relevant entity in writing, and only while both (a) this Agreement is in effect and (b) the Merchant has not been notified to cease usage.
6.5. Pay.com grants to the Merchant the right to display the trademarks of Pay.com as follows:
6.5.1 on Merchant’s website, indicating clearly that it reflects the Gateway; and
6.5.2 in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings in connection to the Services.
6.6 Merchant shall comply with all of Pay.com’s branding guidelines and other instructions in respect of Pay.com’s trademarks.
6.7. The Merchant hereby grants Pay.com, any of its Group companies and the applicable Operator from time to time, a non-exclusive, royalty-free, fully-paid up right to display the Merchant’s trademarks:
6.7.1 anywhere required in order to facilitate the performance of the Services; and
6.7.2 In promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings in connection to the Services.
6.8. Each Party shall comply with all branding guidelines and other instructions of the trademark owner with respect to its trademarks, and shall not create any combination mark consisting of one or more trademarks of the other Party. All uses of each Party’s trademarks shall inure to the benefit of the trademark owner.
6.9. If 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.
7.1. In this Section 7:
7.1.1 “Client Personal Information” is the Personal Information about, or submitted to the Service by, a Buyer, processed by Pay.com under or in connection with the Agreement;
7.1.2 “Data Protection Laws” are the laws and regulations applicable to the Processing of Personal Information by Pay.com pursuant to this Agreement including where relevant, but not limited to, the California Consumer Privacy Act and the California Privacy Rights Act;
7.1.3 “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;
7.1.4 “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;
7.1.5 “Process” means the collection, handling, use, storage, disclosure, transmission or any other operation performed on Personal Information;
7.1.6 “Subprocessor” is any third party who is engaged by Pay.com to carry out specific Processing activities with Client Personal Information.
7.2. The Parties agree that Merchant shall be the entity that determines the purposes and means of the Processing of Client Personal Information and has appointed Pay.com to Process the Client Personal Information.
7.3. Each party agrees to comply with Data Protection Laws and shall instruct its employees, agents and (in the case of Pay.com) Subprocessors to comply with Data Protection Laws with respect to Client Personal Information.
7.4. Pay.com will:
7.4.1 only Process Client Personal Information to the extent necessary for the performance of its obligations under the Agreement; and
7.4.2 comply with all written instructions from Merchant in relation to Client Personal Information.
7.5. Pay.com will not:
7.5.1 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)
7.5.2 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; or
7.5.3 retain, use, or disclose the Client Personal Information outside of the direct business relationship between Merchant and Pay.com.
7.6. Subject to any confidentiality obligations in the Agreement, Pay.com 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, Pay.com shall ensure that Pay.com personnel are subject to confidentiality obligations at least as restrictive as those contained in this Agreement or are subject to an appropriate statutory obligation of confidentiality.
7.7. Without prejudice to any other security obligations in the Agreement, Pay.com will implement and maintain appropriate technical and organizational measures consistent with those required by Data Protection Laws for the protection of the security, confidentiality, and integrity of the Personal Information. Pay.com will not materially decrease the overall security of the Services while this Agreement is in effect.
7.8. Pay.com shall promptly notify Merchant, and provide full details thereof, if it receives any communication from any individual or any representative of an individual Buyer requesting to exercise their rights under Data Protection Laws with regard to Client Personal Information. Pay.com shall provide reasonable assistance and cooperation as is necessary to enable Merchant to comply with the exercise of such rights by an individual.
7.9. Each Party shall notify the other Party without undue delay upon becoming aware of a Personal Information Breach and shall provide the other Party with sufficient information which allows that Party to meet any obligations to report a Personal Information breach under Data Protection Laws. Such notification shall at a minimum:
7.9.1 describe the nature of the Personal Information breach, the categories and numbers of individuals concerned, and the categories and numbers of records concerned;
7.9.2 describe the likely consequences of the Personal Information breach; and
7.9.3 describe the measures taken or proposed to be taken to address the Personal Information Breach.
7.10. Merchant consents to Pay.com:
7.10.1 Processing Client Personal Information collected from individuals located outside the United States;
7.10.2 Processing Client Personal Information inside or outside of the United States; and
7.10.3 engaging Subprocessors to Process Client Personal Information provided such engagements are consistent with the terms of this Section 7 and the remainder of this Agreement. Pay.com shall, upon request, provide Merchant a list of Subprocessors who process Client Personal Information.
7.11. Upon expiration or termination of the Agreement (or sooner if reasonably requested by Merchant), Pay.com 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 Data Protection Laws.
7.13. Where Merchant Data includes data concerning third parties (including Merchant’s directors and/or other staff members), Merchant states that it has appropriate legal grounds for providing Pay.com with such data to Process for such purposes.
7.14. The provisions of this Section 7 shall survive termination of this Agreement for as long as any Client Personal Information remains in Pay.com’s possession.
8.OptBlue for American Express®
8.1. 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, provided that if American Express considers Merchant to be a ‘high value’ merchant, American Express may require Merchant to enter into an agreement directly with American Express. Merchant agrees to comply with any such requirement and acknowledges that if it does not do so, Pay.com may no longer be able to provide Merchant with all or elements of the American Express Payment Method.
8.2. 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.
9.1. 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:
9.1.1 any breach of a Third Party Servicer Agreement;
9.1.2 any violation of any Laws applicable to Merchant’s use of the Services;
9.1.3 any breach by Merchant of Section 7.13 above; or
9.1.4 any claim or dispute raised by a Buyer directly against Pay.com.
10.Term and Termination
10.1. The term of this Agreement (“Term”) shall begin when Merchant submits the Merchant Application and shall, subject to the Parties’ other rights of termination under this Agreement, continue in force until terminated by:
10.1.1 Merchant giving Pay.com not less than fifteen (15) days’ prior written notice; or
10.1.2 Pay.com giving Merchant notice with immediate effect,
either of which may be given for any reason or for no reason. Neither Party shall be required to give reasons for termination to the other Party.
11.Effect of Termination of the Agreement
11.1. On any termination:
11.1.1 Merchant shall cease to have any right to use the Portal or the Services; and
11.1.2 all amounts owing by Merchant shall be immediately due and payable.
11.2. If Pay.com terminates this Agreement pursuant to Section 10.1, Pay.com shall provide Merchant with a refund of any pre-paid, but unused Fees related to such Services on the Repayment Date.
12.1. Access to the Services requires Merchant to pay fees (“Fees”). In the absence of specific agreement between the Parties, these are set out on the Website www.pay.com/pricing. Unless and to the extent the Parties have specifically agreed otherwise, Pay.com may amend the Fees from time to time in accordance with the provisions of Section 21.10. All Fees are in the Currency and are non-refundable, unless otherwise provided herein.
12.2. In accepting this Agreement, Merchant irrevocably:
12.2.1 authorizes Pay.com to collect payment of Fees from the Merchant Bank Account, credit card, debit card or other means of payment;
12.2.2 directs Pay.com to instruct each Financial Service Provider that makes settlements to Merchant to set-off from such settlements any Fees owing hereunder; and
12.2.3 authorizes Pay.com to retain a Reserve Amount in accordance with Pay.com’s internal policies. Merchant expressly acknowledges that Pay.com may collect payment of Fees simultaneously with retaining the Reserve Amount at the levels determined by Pay.com from time to time, until the Reserve Amount is returned to Merchant in accordance with Pay.com’s policies.
12.3. 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.
12.4. The Fees 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.
12.5. Merchant hereby releases, indemnifies and holds Pay.com, the Financial Services Provider and the Scheme Owners 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 Financial Services Provider or any Payment Method’s merchant monitoring lists.
13.1. In accepting this Agreement, Merchant hereby irrevocably 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) in order to effect settlement of credits and debits from Merchant Bank Account(s) by means of ACH and/or wire transfer (“ACH Transactions”) in connection with the Services.
13.2. Merchant shall maintain sufficient funds in Merchant Bank Account to cover all ACH Transactions.
13.3. Merchant represents and warrants that Merchant has the authority to agree to ACH Transactions and that Merchant Bank Account indicated is a valid and legitimate account for the handling of ACH Transactions.
13.4. If Merchant wishes to change the identification of Merchant Bank Account, it must give Pay.com not less than 30 days’ written notice, providing full details of the replacement account. 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.
14. Confidential Information
14.1. “Confidential Information” means information that is disclosed by a party to this Agreement (the “Discloser”) or on the Discloser’s behalf by its authorized representatives to the other party to this Agreement (the “Receiver”) which a reasonable person would believe to be confidential.
14.2. Confidential Information does not include information that is:
14.2.1 in the public domain not by breach of this Agreement,
14.2.2 known by the Receiver at the time of disclosure,
14.2.3 lawfully obtained by the Receiver from a third party other than through a breach of confidence,
14.2.4 independently developed by the Receiver, or
14.2.5 expressly indicated by the Discloser as not confidential.
14.3. The Receiver may share the Confidential Information with its “Permitted Receivers” (being the Receiver’s Affiliates and the Receiver’s or its Affiliates’ officers, employees, members, representatives, professional advisors, agents and subcontractors), but only if they:
14.3.1 need to know it, and only use it, for the Purpose, and
14.3.2 have agreed to keep it confidential and restrict its use to the same extent that the Receiver has.
14.4. The Receiver is liable for its breach of this Section 14 and any act or omission by a Permitted Receiver which would constitute a breach of this Agreement if it were a party to it.
14.5. The Receiver may share the Confidential Information if required by law or regulation but must promptly notify the Discloser of the requirement if allowed by law or regulation.
14.6. The Receiver must:
14.6.1 only use the Confidential Information for the purpose of performing its obligations under, or receiving the benefit of, this Agreement; and
14.6.2 keep the Confidential Information secure and confidential and only disclose it as allowed by this Agreement; and
14.6.3 promptly notify the Discloser if it becomes aware of a breach of this Section 14.
15.Merchant Representations and Warranties
15.1. Merchant represents and warrants to Pay.com that Merchant:
15.1.1 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;
15.1.2 has the legal capacity to enter into this Agreement and perform Merchant obligations hereunder; and
15.1.3 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.
16.Disclaimers and limitations on liability
16.1. Content from Third Party Servicers, other users, suppliers, advertisers, and other third parties may be made available to Merchant through the Services, including without limitation via links to third party websites. Pay.com does not control such content; Merchant agrees that Pay.com is not responsible for any such content.
16.2. 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.
16.3. The Services, the Portal and any other services provided by Pay.com are provided “AS IS” and “AS AVAILABLE”. Except as expressly stated as a “warranty” in this Agreement, and to the maximum extent permitted by Laws, Pay.com does not make any, and expressly disclaims all, express and implied warranties and statutory guarantees with respect to its performance under this Agreement, the Services, the Portal and the Financial Services Providers, including as related to availability, the implied warranties of fitness for a particular purpose, merchantability and non-infringement, and the implied warranties arising out of any course of dealing, course of performance or usage in trade.
16.4. Pay.com is not liable for any losses, damages, or costs that Merchant, the Buyer or others may suffer arising out of or relating to:
16.4.1 hacking, tampering, or other unauthorized access or use of the Services, the Portal or Merchant’s failure to use or implement anti-fraud or data security measures; or
16.4.2 any access to, or use of, the Services in a way that is inconsistent with this Agreement;
16.5. To the maximum extent permitted by Laws Pay.com will not be liable in relation to this Agreement or the Services, whether in contract, negligence, strict liability, tort or other legal or equitable theory, for:
16.5.1 any lost profits, personal injury, property damage, loss of data, business interruption, indirect, incidental, consequential, exemplary, special, reliance, or punitive damages, even if these losses, damages, or costs are foreseeable, and whether or not the person claiming them, or Pay.com, have been advised of their possibility; or
16.5.2 losses, damages, or costs exceeding in the aggregate the greater of (i) the total amount of Fees paid by Merchant to Pay.com (excluding all pass-through fees levied by Financial Services Providers) during the 3-month period immediately preceding the event giving rise to the liability; and (ii) $500 USD.
16.6. 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.
17.1. 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:
17.1.1 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].
17.1.2 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).
17.2. 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 Portal. For contractual purposes, Merchant consents to receive communications from Pay.com in an electronic form; and agrees 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.
17.3 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.
17.4 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
18.1. PLEASE READ THIS SECTION CAREFULLY, AS IT LIMITS THE MANNER IN WHICH MERCHANT MAY SEEK RELIEF, AND REQUIRES MERCHANT TO ARBITRATE DISPUTES WITH PAY.COM.
18.2. If Merchant has a dispute with Pay.com or any of its third party providers, Pay.com will first seek to resolve such a dispute through Pay.com’s support team.
18.3. All disputes arising under or in connection with the Agreement, including disputes with Pay.com’s third party providers (in particular, but without limitation, Pay.com’s third party identity verification provider Onfido Limited) (each a “Dispute”) 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 out below.
18.4. 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.
18.5. 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.
18.6. 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 that their agreement to this arbitration provision is voluntary. Merchant agrees that Onfido Limited may enforce the benefit of this clause.
19. Electronic Signature
19.1. 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 Merchant or its representative ticks a box on the Pay.com Website indicating that it accepts such documents. In doing so, Merchant’s representative represents and warrants on behalf of Merchant that:
19.1.1 Merchant consents and intends to be bound by this Agreement and related documents; and
19.1.2 this 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). Merchant acknowledges and agrees that it has the ability to print or otherwise store the Agreement and related documents.
20.1. 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 a copy of Merchant’s payment method (e.g. credit card information) used to pay Fees hereunder as well as other Merchant Data and Buyer Data on the Portal.
21.1. 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.
21.2. 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.
21.3. 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.
21.4. Merchant acknowledges and understands that if Pay.com is unable to provide Services as a result of any event beyond Pay.com’s control, Pay.com will not be in breach of this Agreement and will not be liable for delays caused by such event.
21.5. 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 Laws and the validity, legality, and enforceability of all other provisions shall remain in full force and effect.
21.6. 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.
21.7. 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.
21.8. If there is any conflict or inconsistency between:
21.8.2 this Agreement and any other resource or document, including the information provided during Merchant Application, the Portal, or otherwise, this Agreement shall control.
21.9. 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.
21.10. Pay.com may 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 its Website and/or the Portal. Continued use of the Services after Pay.com has taken reasonable steps to notify Merchant (including by including a notification on the Portal) 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 Portal.
21.11. Upon termination of this Agreement for any reason, 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.
21.12. The following Sections will survive termination of this Agreement for any reason:
21.12.1 the introductory paragraph;
21.12.2 Section 2 (Services) (apart from 2.1 and 2.11);
21.12.3 Sections 5.5.6 to 5.5.8 (subsections of Merchant Obligations) inclusive;
21.12.4 Section 6 (Intellectual Property Rights.) except for Section 6.2
21.12.5 Section 9 (Indemnification.)
21.12.6 Section 11 (Effect of Termination of the Agreement)
21.12.7 Sections 12 (Fees.) and 13 (ACH Consent) for as long as any sums or liabilities remain outstanding between Merchant and Pay.com
21.12.8 Section 14 (Confidential Information.)
21.12.9 Section 16 (Disclaimers and limitations on liability)
21.12.10 Section 17 (Notices.)
21.12.11 Section 18 (Governing Law and Arbitration)
21.12.12 Sections 21.5 to 21.9 (inclusive),21.11 and 21.12 (subsections of General)
21.12.13 Any relevant definitions in Section 22 (Glossary.)
The following words used in this Agreement are defined as follows:
Affiliate in relation to a Person, means 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
Alternative Payment Method means any means of paying for goods or services which are not made via cash or Card Scheme, including but not limited to prepaid cards, mobile payments, e-wallets, bank transfers and cash-based vouchers
API means the application programming interface made available by Pay.com to Merchant for the purposes of accessing the Services
Business Day means any day except any Saturday, any Sunday, or any day which is a legal holiday or any day on which banking institutions in New Jersey are authorized or required by law or other governmental action to close
Buyer means a real or corporate person who attempts to pay for the Product(s) using a Payment Method
Buyer Data means any and all personal information of Buyers related to Transactions, such as for example, Card information
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 Card Scheme and that has authorized the Card for use on such Card Scheme
Card Information means information related to a Buyer or the Buyer’s Card, that is obtained by Merchant from the Buyer’s Card, or from the Buyer in connection with his or her use of a Card (for example a security code, a PIN number, or the Buyer’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 Buyer’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
Card Scheme means Visa, Mastercard, American Express, Diners / Discover and any other card scheme with which Pay.com collaborates
Card Scheme Owner means each organisation which issues a Card to a Buyer, in respect of which Pay.com provides the Services (together, the “Card Scheme Owners”)
Currency means U.S. dollars or such other currency as may be agreed between the Parties from time to time
Fees means has the meaning given in Section 12.1
Financial Services means 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 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
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 any and all intellectual property rights of any nature anywhere in the world whether registered, registrable or otherwise, including patents, utility models, trade marks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the "look and feel" of any websites
Laws means 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
MasterCard means MasterCard International, Inc. and any of its Affiliates or licensees
Merchant Application means a paper or electronic form which contains information on the Merchant, its websites, the types of goods and services provided, the acceptable Payment Methods, details of the Merchant Bank Account, together with any other information requested on the form
Merchant Bank Account means the Merchant's account with Pay.com under which the Merchant's entitlement to Transaction Amounts collected by Pay.com is recorded, as set out in the Merchant Application or otherwise amended pursuant to Section 13.4
Merchant Data means any data, including personal data, communicated by Merchant to Pay.com
Merchant Device means any computer system, tablet or phone used by Merchant to access the Services or manage Data or Merchant business
Merchant’s Business means the business set out on the Merchant Application, or as otherwise agreed by Pay.com from time to time
Pay.com Account means an account made available to Merchant by Pay.com through which Merchant can transmit instructions or receive information in relation to the Services
Payment Method means any Card Scheme or Alternative Payment Method
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
Portal means any Web- or app-based portal supplied by Pay.com for use by Merchant for administration of the Services
Product means any product or service for sale or provided by Merchant which is paid for using the Service
Program Guide means documentation provided by Pay.com from time to time setting out certain specifications applicable to the Services
Repayment Date means the date which is 180 days (or such other period as may be notified by Pay.com to Merchant from time to time, acting reasonably) from the date of termination of this Agreement
Reserve Amount means a cash reserve of an amount specified by Pay.com from time to time which is held in favor of Pay.com in accordance with this Agreement to guarantee the fulfilment of the Merchant's obligations to Pay.com under this Agreement
Rules means the rules and regulations applicable to Payment Methods, 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/about-mastercard/what-we-do/rules.html and other payment associations or brands as well as other industry as well as the Program Guide
Scheme Owner means in respect of Cards, the relevant Card Scheme Owner, and in respect of Alternative Payment Methods, the owner or operator of the relevant Rules
Security Standards means all rules, regulations, standards or guidelines adopted or required by the Rules or Scheme Owners 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: www.americanexpress.com/merchantopguide
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. The Financial Services Provider is a Third Party Servicer
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 agreement between Merchant and the Financial Services Provider is a Third Party Servicer Agreement
Third Party Servicer Services means the services of a Third Party Servicer provided pursuant to Third Party Servicer Agreement
Transaction means the actual or attempted payment of funds or other value by a Buyer or Merchant occurring through use of the Services
Transaction Data means Data contained in, or relating to, a Transaction
Visa means Visa U.S.A., Inc. or Visa International, Inc. or any of its Affiliates or licensees
Website means the website from which the Products are provided, as set out on the Merchant Application or otherwise agreed by Pay.com from time to time