THIS END USER AGREEMENT (the “Agreement”) is made and entered into as of the date last executed on the signature page hereto (the “Effective Date”) indicated below by and between Pay Theory, Inc., with an address of 10549 Reading Road, Cincinnati, Ohio 45241 (“Pay Theory”), and the party identified on the signature page hereto (“End User”). Pay Theory and End User may be referred to herein individually as a “Party” and collectively as the “Parties.”
Pay Theory is in the business of providing e-commerce card payment processing services and ACH disbursements and payment services, cash acceptance and payment services, as well as other related services and software for use by merchants through relationships with one or more processors, suppliers, service providers and other vendors (collectively, the “Vendors”).
End User, pursuant to this Agreement, desires for its customers (collectively, “Customers”) to be able to make payments to the End User via utilization of the card payment processing services and, if selected herein, the ACH disbursement and payment services and cash acceptance and payment services provided by Pay Theory through the Vendors (collectively, the “Services”).
NOW THEREFORE, in consideration of the foregoing recitals, the Parties agree as follows:
Application to Use Services. Before using the Services, End User must complete this Agreement and provide all necessary information to Pay Theory to demonstrate satisfaction of the underwriting standards applicable to use of the Services, which may include information required by the Associations (as defined below), Vendors, and various U.S. Federal Government agencies. End User hereby authorizes Pay Theory and, where required, Vendors to obtain credit reports, to perform identity verification and any other necessary inquiries (including, but not limited to, credit reports for End User’s directors, officers, and principals), to review financial statements, and to conduct transaction-verification inquiries and any other inquiries considered necessary relating to this Agreement. During the Term, Pay Theory may request additional information from End User if required by the Associations or any Vendor. Further, if End User’s processing volume exceeds certain limits established by the Associations, End User may be required to enter into a direct agreement with one or more Vendors to continue receiving the Services.
License to Use Services. Subject to the provisions of this Agreement, Pay Theory hereby grants End User a revocable, nontransferable, limited license to use the Services. End User acknowledges that portions of the Services may not be available to End User due to restrictions imposed by any Vendor, fraud risks, or other circumstances as solely determined by Pay Theory.
Credentials. End User is responsible for maintaining the confidentiality of any credentials provided by Pay Theory to End User. End User will be fully responsible for all activities that occur through the use of such credentials. End User must notify Pay Theory immediately if End User believes the confidentiality of such credentials has been compromised or if End User suspects unauthorized use of such credentials. Pay Theory will not be liable for any loss or damage arising from the compromise or misuse of End User’s credentials.
Vendors. All or a portion of the Services may be provided by one or more Vendors. End User acknowledges and agrees that Pay Theory may provide any information about End User, whether directly provided by End User or collected through use of the Services by End User, to any Vendor for the purpose of facilitating provision of the Services to End User.
Service Levels. Pay Theory will, directly or indirectly, provide ongoing training and technical support to End User (including error determination and resolution, assistance with installation, access, and use of the Services, and assistance with software and hardware issues) and use commercially reasonable efforts to remedy any customer service problems encountered by End User with regard to the Services. If such support services will be provided by a Vendor, then Pay Theory will provide such Vendor’s contact information to End User.
Card Acceptance. End User must honor, without discrimination, any valid payment card properly tendered by a Customer asserting to be the person in whose name the payment card is issued (“Cardholder”). End User may elect not to accept VISA or Mastercard branded payment cards or both but must provide Pay Theory with prior written notice of such election. If Discover or Diners Club network payment card (“Discover Cards”) acceptance or American Express network payment card (“Amex Cards”) acceptance is selected by End User (and, in each case, approved by Pay Theory and its Vendors), then the attached Discover Card Acceptance Addendum and American Express Card Acceptance Addendum, respectively, as may be supplemented or modified from time to time, is expressly incorporated herein and will apply to transactions involving such cards. End User must properly disclose to the Cardholder, at the time of the transaction, End User’s name, return policy, and, if applicable, other limitations End User may have on accepting returned merchandise. End User’s refund polices for purchases made with a payment card must be at least as favorable as End User’s refund policy for purchases made with any other form of payment. End User will not accept any payments from a Cardholder relating to previous charges for merchandise or services, and if End User receives such payments, End User must promptly remit them to Pay Theory. End User may set a minimum transaction amount to accept a card, provided the minimum transaction amount does not differentiate between card issuers or Associations and the minimum amount does not exceed ten dollars.
Card Authorization. Within 72 hours after initiating a transaction, but prior to completing it, End User must request an authorization for the transaction using equipment that meets the specifications Pay Theory requires. This authorization request must include End User’s name and account identifier, the payment card expiration date, the zip-code of the Cardholder’s billing address, and the total amount of the transaction, including taxes. Pay Theory may also require additional information in any such request, such as: (i) CVV2 code or the equivalent; (ii) a brief description of the goods or services involved; (iii) the transaction authorization number; and, (iv) if applicable, adjacent to the signature line, a notation that all sales are final. When authorization is obtained, End User will be deemed to warrant the identity of the Customer as the Cardholder. Authorizations are not a guarantee of acceptance or payment of a transaction and do not waive any provision of this Agreement, or otherwise validate a fraudulent transaction or a transaction involving the use of an expired payment card. For the avoidance of doubt, Pay Theory may refuse to authorize any transaction.
Sales Transmittals. End User will retain a copy of the sales transmittal for the completed transaction in accordance with the Rules for 25 months or such longer period as the Rules may require. End User will provide copies of sales transmittals and other transaction evidence to Pay Theory within three business days of any request or Pay Theory will have chargeback rights with respect to such transactions.
Recurring Transactions. End User must obtain the Cardholder’s prior written consent for recurring transactions, including a description of the services or other product and the frequency and duration of the recurring charge, and notify the Cardholder that recurring billing charges may be cancelled at any time. End User must retain evidence of such written consent for 24 months from the date End User submits the last recurring billing charge. End User will honor any Cardholder cancellation, and if End User’s access to the Services is terminated for any reason, End User will, at its cost, advise all Cardholders to whom it submits recurring billing charges that it no longer accept the payment card(s) for amounts owed.
End User will not present for processing or credit, directly or indirectly, any transaction not originated as a result of a transaction directly between End User and a Cardholder or any transaction End User knows or should know to be fraudulent or not authorized by the Cardholder. Further, End User shall not present sales transactions which are produced as a result of sale made by any person or entity other than End User, or for any purposes related to any illegal or prohibited activity. Pay Theory will refer perpetrators of fraudulent transactions, in its discretion, to the appropriate law enforcement agency. End User must not honor any payment card that is expired.
End User may not split transactions into multiple payment card transactions except where: (A) partial payment is entered on the transaction record and the balance of the transaction amount is paid in cash or by check at the time of transaction; or (B) the amount represents an advance deposit in a payment card transaction completed in accordance with this Agreement and the Rules.
End User will not use the Services to accept amounts representing the refinancing of an existing uncollectible obligation, debt or dishonored check of a Cardholder. End User may not process transactions for, receive payments on behalf of, or (unless required by applicable law) redirect payments to a third party. End User must not use the Services for high risk transactions or illegal activities.
ACH Processing. The Services enable End User to make and accept ACH payments (“ACH Services”), subject to the following, which terms control with respect to the ACH Services to the extent of any conflict with other provisions of this Agreement:
Entries. End User authorizes Pay Theory to originate ACH credit or debit entries to a bank account (“Entries”). End User shall not have the right to cancel or amend an Entry after its receipt by Pay Theory or the Vendors, except to void the transaction prior to settlement. End User must only submit Entries for bona fide transactions with Customers made in the ordinary course of business in accordance with this Agreement, the Rules, and applicable laws. End User must not request an Entry that violates the Rules or applicable laws. End User agrees not to initiate any Entries to or from a savings account or a foreign bank or the branch of a foreign bank in a U.S. territory. The term “foreign bank” does not include a U.S. agency or branch of a foreign bank, or an insured bank organized under the laws of a U.S. territory. End User warrants that no Entry delivered to Pay Theory or the Vendors will cause Pay Theory or the Vendors to be in violation of any law or regulation of the federal or applicable state governments. If an Entry describes a financial institution or the receiver of an Entry inconsistently by name and account or other identifying number, the account or other identifying number may be relied upon, and the name disregarded.
Authorization. End User shall obtain and maintain appropriate authorizations in accordance with the Rules from each Customer for each ACH transaction. End User shall provide Pay Theory or the Vendors with evidence of authorization upon request. End User shall maintain data sufficient to reconstruct the transaction authorization and maintain such authorization in accordance with all applicable laws, rules and regulations. End User agrees to provide upon request and to allow Pay Theory and the Vendors to document and store ACH authorization, including timestamp, End User logo and applicable ACH credentials.
Transaction Limits. End User shall operate and use the ACH Services in accordance with the limits approved by Pay Theory or the Vendors.
ACH Settlement. End User acknowledges that ACH rules make provisional any credit given for an Entry until final settlement. If final settlement does not occur or if a reversal occurs, End User agrees that it shall be responsible for any related refunds or associated costs and Pay Theory and the Vendors shall be reimbursed by End User to the extent they are charged or pay such amounts. Pay Theory and the Vendors may deduct such amounts from any payout to End User.
Other Documents. End User agrees to complete and enter into all applicable documents required by Pay Theory in connection with the ACH Services.
Termination of ACH Services. End User may opt out of the ACH Services at any time upon written request by End User without directly or indirectly affecting End User’s ability to use other components of the Services. Following any termination of this Agreement or the provision of ACH Services, Pay Theory and the Vendors will retain access to each of End User’s bank accounts provided in connection with ACH Services for one calendar year to process chargebacks as may be required by NACHA.
Cash Payments. The Services enable End User to make and accept cash payment (“Cash Services”), subject to the following, which terms control with respect to the Cash Services to the extent of any conflict with other provisions of this Agreement:
Transactions. When a Customer makes a payment to a Provider, the Customer will be given a receipt for such payment. End User will receive documentation of the aggregate payments made by its Customers with respect to bona fide invoices on a given business day. End User shall maintain data sufficient to reconstruct transactions made to End User in accordance with all applicable laws, rules and regulations.
Transaction Limits. End User shall operate and use the Cash Services in accordance with the limits approved by Pay Theory or the Vendors.
Settlement. Payments made to End User will be transferred to End User’s designated bank account within three days of the date of the transaction.
Errors and Disputes. End User shall not seek recourse against Customers for payments actually made to Provider but not received by End User. End User must carefully review each statement of payments made to End User and must report any errors therein or disputes therewith to Pay Theory within 30 days of receipt thereof. Any error or dispute that End User fails to report to Pay Theory within such 30-day period shall be waived, and End User will be prohibited from making any claim with respect to errors thereafter.
Other Documents. End User agrees to complete and enter into all applicable documents required by Pay Theory in connection with the Cash Services.
Termination of Cash Services. End User may opt out of the Cash Services at any time upon written request by End User without directly or indirectly affecting End User’s ability to use other components of the Services.
Fees for Use of Services. In consideration for use of the Services, End User shall pay to Pay Theory the fees set forth on Exhibit A hereto.
Fees for Use of Equipment. End User may purchase or lease equipment from Pay Theory to facilitate use of the Services. The cost of any such equipment will be amortized over the Initial Term and will be payable together with the monthly fees paid to Pay Theory by End User for use of the Services. If this Agreement terminates while equipment is being amortized, the full amount of such equipment is due and payable on termination.
Errors and Disputes. End User must carefully review each payment made hereunder and must report any errors therein or disputes therewith to Pay Theory within 30 days of receipt of any invoice for such payment. Any error or dispute that End User fails to report to Pay Theory within such 30-day period shall be waived, and End User will be prohibited from making any claim with respect to errors in payment or overpayment of such fees thereafter.
Compliance Obligations. End User shall and shall cause the principals, officers, directors, representatives, employees, agents, and contractors (collectively, “Representatives”) of End User, as well as the Customers using the Services, to comply with (a) all laws, policies, guidelines, regulations, ordinances, rules, and orders of any governmental authority or regulatory body applicable to End User or its business; (b) current policies, procedures, and guidelines of Pay Theory regarding the Services; and (c) all rules promulgated from time to time by any of VISA, Mastercard, Discover, American Express or any other card network (each, an “Association”) including the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program, third-party agent registration requirements, the Payment Card Industry Data Security Standards (“PCI DSS”), and the Payment Application Data Security Standard (PA-DSS) and, if ACH Services are selected or provided, the National Automated Clearing House Association rules (“NACHA”) (collectively, the “Rules”). If any terms of this Agreement conflict with the Rules, the Rules will govern.
Payment Cards. End User represents and warrants that it does not have access to Customer payment card information and will not retain any such information if provided to End User by Customers. If End User believes that any payment card information has been compromised, End User must notify Pay Theory promptly and assist in providing notification to the proper parties. Additionally, all costs of mitigation or notification associated with the compromise of payment card information will be borne by Customer. Pay Theory may reverse payment card transactions deemed to violate this Agreement, and End User will reimburse Pay Theory for any costs or fees associated with such reversal.
PCI DSS. End User may be required to be PCI DSS compliant to use the Services. If so required, End User must provide Pay Theory with annual certification of End User’s compliance with the then-current PCI DSS standards, which may be provided via an online PCI DSS reporting tool, a paper or PDF version of the appropriate Self-Assessment Questionnaire, or through another mutually agreed upon method. Further, End User will assist Pay Theory in maintaining its PCI DSS compliance, to the extent such PCI DSS compliance relates to End User.
Intellectual Property. The provision of access to the Services by Pay Theory does not convey any other license, expressly or by implication, estoppel or otherwise, under any intellectual property rights owned or controlled by Pay Theory, all of which is and shall remain the exclusive property of Pay Theory or its Vendors, as applicable. The Parties agree that Pay Theory retains all right, title, and interest in and to the Services, and all worldwide patents and patent rights, copyrights, trademarks, and trademark rights (including all associated goodwill), trade secrets, and trade secret right, and other intellectual property rights or proprietary rights, comprising, incorporated into, or associated with the Services, or other Pay Theory technology in connection with this Agreement or the Services, whether created, designed, developed, licensed from Vendors, or reduced to practice by or for Pay Theory before, during, or after the Term (collectively, the “Pay Theory IP”).
Additional Restrictions on License. End User shall not, and shall not permit any of its affiliates to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Pay Theory IP (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to law); remove any proprietary notices related to the Pay Theory IP; circumvent any technological measure that controls access to the Pay Theory IP; modify, translate, or create derivative works based on the Pay Theory IP, except with the prior written approval of Pay Theory; use the Services for any purpose other than for the benefit of End Users pursuant to this Agreement; or use the Services other than in accordance with this Agreement and in compliance with the Rules and all applicable laws. End User shall be responsible for the exercise and performance of its rights, duties, and obligations taken by its employees, agents, and contractors to the same extent as if such actions had been taken by End User directly.
Term. The initial term of this Agreement shall be two years commencing on the Effective Date (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive one-year terms (any such renewal, a “Renewal Term” and with the Initial Term, the “Term”) unless either Pay Theory or End User provides at least 90 days’ written notice of non-renewal prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable, or unless earlier terminated as provided herein.
Event of Default. The occurrence of any one or more of the following will constitute an “Event of Default” hereunder:
Any act or omission by End User that may damage the reputation, business, or goodwill of Pay Theory or any Vendor or any fraud or intentional misconduct by End User.
Any representation or warranty made by End User or any of its employees, principals, officers, or directors is or becomes false or misleading.
Any violation by End User of Sections 4, 5 or 8 of this Agreement.
Any failure by End User to perform any other obligation herein if such failure is not cured within 30 days of receipt of written notice thereof from Pay Theory.
The institution by or against End User of insolvency, receivership, or bankruptcy proceedings, or End User’s making an assignment for the benefit of creditors.
Automatic Termination. Notwithstanding anything in this Agreement to the contrary, this Agreement will automatically terminate if: (A) any Association prohibits Pay Theory from providing, or prohibits any Vendor from allowing Pay Theory to provide, the Services; (B) any Vendor necessary for the provision of Services ceases to be registered with any applicable Association; or (C) any governmental authority having jurisdiction over Pay Theory or a Vendor directs that this Agreement be terminated.
Termination for Cause. Pay Theory may terminate this Agreement immediately and without advance notice upon the occurrence of an Event of Default hereunder. End User may terminate this Agreement if Pay Theory fails to observe any material obligation specified in this Agreement, and such failure is not cured within 30 days of receipt of written notice thereof from End User.
Injunctive Relief. If End User violates Sections 5 or 8 of this Agreement, Pay Theory will suffer irreparable harm and the total amount of monetary damages for any injury to Pay Theory will be impossible to calculate and therefore an inadequate remedy. Accordingly, End User agrees and understands that upon its actual or threatened breach of any of the provisions contained in Sections 5 or 8 of this Agreement, Pay Theory shall be entitled to the immediate grant of injunctive relief without the requirement of posting a bond enjoining such actual or threatened violation by End User, its Representatives, affiliates, or any person acting in concert with End User; and that Pay Theory may exercise any other rights and seek any other remedies to which Pay Theory may be entitled to at law, in equity and under this Agreement for any violation of such obligations.
Termination of License. Upon the expiration of the Term or termination of this Agreement, at the expiration of the last End User Agreement without giving effect to any renewal clause therein: (i) all rights, licenses, sublicenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate; and (ii) End User shall immediately cease all use of the Pay Theory IP, and return, deactivate, destroy, permanently erase, or otherwise remove the same from End User’s systems and equipment, and provide written confirmation of the same to Pay Theory.
Each Party represents and warrants to the other that (i) it has full power and legal right to execute and deliver this Agreement and to perform its obligations herein; (ii) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; (iii) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms, and (iv) it has all right, title or interest, or valid license to use, its respective intellectual property, and that its grant of rights associated therewith do not violate any proprietary rights of any third party.
End User represents and warrants to Pay Theory that: (i) End User is an entity validly existing and in good standing under the laws its state of formation and in any state where it conducts operations; (ii) End User is in compliance with the terms of this Agreement, the Rules, and applicable law; and (iii) all representations and statements made by End User in this Agreement, or in any other related document by End User, are true, accurate, and complete in all material respects.
Confidentiality Obligations. Each Party (as “Disclosing Party”) acknowledges that it may directly or indirectly, whether orally or in writing, disclose Confidential Information (as defined below) to the other Party (as “Receiving Party”) in the course of negotiation of and performance of this Agreement. Receiving Party will not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party’s prior written consent. Receiving Party will protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own Confidential Information of like kind (but in no event using less than reasonable care). Each Party represents and warrants that it will collect, maintain and handle all personal data in compliance with all applicable data privacy and protection laws. Receiving Party will promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
Confidential Information. For the purposes of this Agreement, “Confidential Information” means all non-public, proprietary, secret or confidential information or data, whether designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, relating to a Party (and to Vendors in the case of Pay Theory) and any of its or their, as applicable, respective Representatives, affiliates, operations, products, services, clients, customers, potential customers, End Users, including without limitation intellectual property, trade secrets, pricing, business and marketing plans, technology and technical information, product designs, and business processes, customer lists, financial or other data in any format, and the terms and conditions of this Agreement. Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
Permitted Disclosure. Each Party may confidentially disclose the terms and conditions of this Agreement to its accountants or legal counsel or to any actual or potential bona fide investors, acquirers or lenders. If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it will provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
Return of Confidential Information. Upon any termination of this Agreement, Receiving Party will, upon request, return to Disclosing Party or destroy (at Disclosing Party’s election) all materials containing such Confidential Information. Notwithstanding anything in this Agreement to the contrary, nothing herein shall prohibit or limit Pay Theory’s right to use or share any deidentified, aggregated data during or after the Term.
Indemnification by Pay Theory. Pay Theory shall indemnify, defend, and hold harmless End User and its Representatives from any and all third-party claims, damages, liabilities, losses, or expenses (including attorneys’ fees and costs of defense) (collectively, “Claims”) arising out of or resulting from (i) Pay Theory’s breach of this Agreement, or (ii) acts or omissions of Pay Theory.
Indemnification by End User. End User shall indemnify, defend, and hold harmless Pay Theory, Vendors and their respective affiliates and Representatives from and against all Claims or fees or fines imposed by any Association arising out of or resulting from (i) End User’s breach of this Agreement, or (ii) acts or omissions of End User, its Representatives, or its Customers.
Procedure. The Party providing indemnification under this Section 9 shall pay the defense of a Claim as well as all costs and damages finally awarded by a court of competent jurisdiction as a result of such Claim; provided, however, the Party seeking indemnification must (i) promptly give written notice of the Claim to the other Party; (ii) give the other Party sole control of the defense and settlement of the Claim (provided that the other Party may not settle any Claim unless it unconditionally releases the Party seeking indemnification of all liability); and (iii) provide to the other Party, at the Party seeking indemnification’s cost, all reasonable assistance.
THE SERVICES ARE PROVIDED ON AN “AS-IS,” “AS AVAILABLE” BASIS. PAY THEORY SHALL HAVE NO LIABILITY TO END USER WITH RESPECT TO ANY FAILURE OR INTERRUPTION IN THE SERVICES ARISING FROM THE ACTS OR OMISSIONS OF ANY VENDOR. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAY THEORY AND EACH VENDOR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE SERVICES WILL BE INTERRUPTION OR ERROR FREE.
EXCEPT AS PROVIDED BELOW, (I) IN NO EVENT WILL THE LIABILITY OF EITHER PARTY FOR DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE FEES PAID BY END USER TO PAY THEORY DURING THE THREE-MONTH PERIOD DIRECTLY PRIOR TO THE CLAIM, (II) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (III) IN NO EVENT WILL END USER HAVE ANY CLAIM FOR DAMAGES DIRECTLY AGAINST ANY VENDOR, WHETHER DIRECT OR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL ARISING FROM THE END USER AGREEMENT OR THE PROVISION OF SERVICES BY THE VENDOR.
Notwithstanding the foregoing, no limitation on or exclusion of liability applies to: (i) damages arising from a breach of Sections 5 or 8, (ii) End User’s misappropriation or infringement of Pay Theory’s rights in the Pay Theory IP, or (iii) any liability that, by law, cannot be excluded by agreement of the Parties.
Notice. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand; (ii) when received by the addressee as reflected on the records of a nationally recognized overnight courier; (iii) on the date sent by e-mail if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed with postage prepaid by certified mail, return receipt requested. Such communications must be sent to Pay Theory at the address set forth in the preamble to this Agreement and to End User at the address set forth on the signature page hereto (or at such other address for a Party as specified in a notice given in accordance with this Section 11(a)), provided that a notice may be given on behalf of a Party by its attorney.
Interpretation. The headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation hereof. For all purposes of this Agreement, unless otherwise specified herein, (i) “or” shall mean “and/or”; (ii) words in the singular shall be construed to include the plural and vice versa; (iii) the words “hereof” and “herein” and words of similar import shall be construed to refer to this Agreement as a whole; and (iv) the words “including” and “includes” and words of similar import shall be deemed to be followed by the words “without limitation” in all instances.
Independent Contractor. The relationship of Pay Theory and End User established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to: (i) give either Party the power to direct and control the day-to-day activities of the other; (ii) constitute the Parties as partners, co-owners or otherwise as participants in a joint or common undertaking; or (iii) allow End User to create or assume any obligation on behalf of Pay Theory for any purpose whatsoever.
Entire Agreement; Amendment. Both Parties agree that this Agreement, along with any addenda, exhibits or schedules attached hereto or referenced herein, is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. Notwithstanding the foregoing, Pay Theory may (i) amend Exhibit A by e-mail to End User and (ii) amend this Agreement to the extent required by any Vendor on 20 days’ written notice.
Severability; Waiver. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. No waiver by any Party of any of the provisions of this Agreement shall be effective unless set forth in writing and signed by such Party. The failure by either Party to enforce against the other Party any term or provision of this Agreement will not be deemed to be a waiver of such Party’s right to enforce against the other Party the same or any other such term or provision in the future.
Force Majeure. Neither Party will be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to an event outside of the reasonable control of a Party, including a natural disaster, action or decree of a governmental body or communications line failure.
Third-Party Beneficiaries. Vendors shall be deemed third-party beneficiaries of this Agreement. The Parties do not confer any rights or remedies upon any person other than the Parties, Vendors, and their respective permitted successors and permitted assigns.
Successors and Assigns. End User may not assign this Agreement or any of its rights hereunder, whether by operation of law, change of control, or otherwise, without the prior written consent of Pay Theory, which consent shall not be unreasonably delayed or withheld. Pay Theory may assign its rights and obligations hereunder to a third party provided Pay Theory shall require the assignee to assume Pay Theory’s obligations and liabilities hereunder. This Agreement shall be binding upon each Party’s permitted successors and assigns.
Survival. Sections 5, 6(e), and 8 through 11 shall survive termination of this Agreement.
Governing Law, Choice of Law and Forum. This Agreement will be governed by the internal laws of the State of Ohio, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply. The federal and state courts located in Hamilton County, Ohio, will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.
WAIVER OF JURY TRIAL. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY, FROM WHATEVER SOURCE ARISING, IN CONNECTION WITH ANY LITIGATION OR PROCEEDING ARISING OUT OF RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.
Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, and all of such counterparts will constitute one Agreement. To facilitate execution of this Agreement, the Parties may execute and exchange counterpart signature pages of this Agreement by electronic signature, DocuSign (or a similar application), facsimile or e-mail.
Upon End User’s election to accept Discover Cards (and approval by Discover, Pay Theory and its Vendors), the Parties expressly agree to the following:
Discover Terms and Conditions
End User must comply with the terms of the Discover Operating Regulations, including the Technical Specifications and Dispute Rules Manual and Operating Guide, as amended from time to time (collectively, “Discover Rules”), each of which are incorporated herein by reference.
Pay Theory or its Vendors are responsible for providing settlement funds for Discover Card transactions directly to End User’s designated bank account (“Settlement Account”).
End User agrees to provide transaction data and other information as requested to Discover and any entities required by Discover, including information required for the Consortium Merchant Negative File (commonly referred to as MATCH).
End User may not use, store or disclose transaction data or Customer information except as permitted under the Discover Rules.
End User agrees to accept Discover Card checks consistent with card checks of other card types and similar to End User’s policies concerning personal checks.
The Discover Rules may be obtained by contacting Pay Theory customer service. End User will not receive separate terms and conditions from Discover.
Discover Program Marks. End User may not use any Discover Program Marks, as defined below, except as expressly authorized in writing by Pay Theory. The “Program Marks” mean the brands, emblems, trademarks, and logos that identify Discover Cards, including, without limitation, Diners Club International Cards. Additionally, End User may only use Program Marks provided to End User by Pay Theory to display decals, indoor and outdoor signage, websites advertising materials, marketing materials, and other forms depicting the Program Marks as expressly authorized by Pay Theory. End User shall not use the Program Marks a way that could lead Customers to believe that the products or services offered by End User are sponsored or guaranteed by the owners of the Program Marks. End User recognizes that it has no ownership rights in the Program Marks. End User shall not assign to any third party any of the rights to use the Program Marks.
Authorization. With respect to Discover Card transactions, Pay Theory is authorized to initiate or transmit automatic debit and/or credit entries and/or check entries to the Settlement Account, including through the ACH Services, for all services contemplated under this addendum. End User agrees that Pay Theory may charge the Settlement Account for any chargeback, credit voucher, reimbursement, or other fee to which Pay Theory or its Vendors may be entitled.
Settlement. End User acknowledges that the Discover Rules make provisional any credit given for an entry until final settlement. Pay Theory or its Vendors will provide provisional credit to End User for each valid Discover Card transaction submitted by End User by crediting the Settlement Account, provided Pay Theory or such Vendor has received settlement for the valid transaction through the interchange procedures specified by Discover. However, Pay Theory may suspend or discontinue any provisional credit in its sole and absolute discretion. If final settlement does not occur or if a reversal occurs, End User agrees that it shall be responsible for any related refunds or associated costs, and Pay Theory and the Vendors shall be reimbursed by End User to the extent they are charged or pay such amounts. Pay Theory and the Vendors may deduct such amounts from the Settlement Account and from any payout to End User.
Security. As a condition to Pay Theory and its Vendors providing Discover Card processing services under this addendum, End User may be required to provide additional collateral security, beyond the amounts provided for under the Agreement, for End User’s obligations under this addendum. The additional collateral security shall be of a kind, and in amounts, satisfactory to Pay Theory and may include delaying payments to End User on Discover Card transaction settlements.
Fees. End User shall pay the fees set forth on Exhibit A to the Agreement, as well as any amounts charged to Pay Theory or the Vendors by any other Vendor in relation to Discover Card transactions. All fees and other amounts due pursuant to this addendum shall be subject to the terms and conditions applicable to fees generally in the Agreement.
Termination. If the Agreement is terminated for any reason, this addendum will immediately terminate. Any of Pay Theory or Discover may terminate this addendum at any time without cause upon 30 days’ advance written notice and may terminate this addendum for cause in either’s sole discretion, effectively immediately. Pay Theory must terminate this addendum if directed by a Vendor or Association.
End User agrees to complete and enter into all applicable documents required by Pay Theory in connection with End User’s acceptance of Discover Cards.
To the extent that this addendum conflicts with the terms of the Agreement, the terms set forth in this addendum shall control with respect to End User’s acceptance of Discover Cards to the extent of such conflict. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in the Agreement.
Upon End User’s election to accept Amex Cards (and approval by American Express, Pay Theory and its Vendors), the Parties expressly agree to the following:
American Express General Terms and Conditions.
End User must comply with the terms of the American Express Operating Guide, as amended from time to time, which are incorporated herein by reference. End User will not receive separate terms and conditions from American Express.
End User authorizes Pay Theory and its Vendors to submit Amex Card transactions to, and receive settlement from, American Express on behalf of End User.
End User may opt out of Amex Card acceptance at any time upon written request by End User, at which point this addendum will terminate, without directly or indirectly affecting its rights to accept other Association payment cards.
End User is prohibited from billing or collecting from any Customer for any purchase or payment on an Amex Card unless a chargeback has been exercised, End User has fully paid for such Amex Card transaction, and End User otherwise has the right to do so.
End User must remove American Express program marks from End User’s website and wherever else they are displayed upon termination of the Agreement or Amex Card acceptance under this addendum
Transaction and End User Information. End User consents to American Express’s use of Amex Card transaction data and other information related to End User to perform its responsibilities in connection with processing an Amex Card transaction, promote the American Express network, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communication purposes within the parameters of its agreement with one or more of Pay Theory or its Vendors, and important transactional or relationship communications from American Express. End User acknowledges and agrees that American Express may monitor End User in connection with Amex Card marketing and administrative purposes.
High Charge Volume Conversion. End User acknowledges and agrees that it may be converted from Amex Card acceptance pursuant to this addendum to a direct Amex Card acceptance relationship with American Express if and when it becomes a “High CV Merchant.” A “High CV Merchant” means a merchant with either (a) greater than $1,000,000 in Amex Card transaction volume (including all volume from all locations) in a rolling 12-month period or (b) greater than $100,000 in Amex Card transaction volume (including all volume from all locations) in any three consecutive months. Upon any such conversion, End User acknowledges and agrees that (i) End User will be bound by American Express’s then-current Card Acceptance Agreement, and (ii) American Express will set pricing and other fees payable by End User for Amex Card acceptance.
Transaction Encumbrances. End User acknowledges and agrees that its shall not assign to any third party any payments due to it under the Agreement arising from Amex Card transactions, and all indebtedness arising from Amex Card Transactions will be for bona fide sales of goods and services (or both) at its place of business and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that End User may sell and assign future Amex Card transaction receivables to Pay Theory or its Vendors or their affiliated entities, without consent of American Express.
Refund Policies. Except as may otherwise be required or permitted by the American Express Merchant Operating Guide or applicable law, End User agrees to have a refund policy for purchases on an Amex Card that is at least as favorable as its refund policy for purchases on any other Association payment cards, and to disclose the refund policy to Customers at the time of purchase. Moreover, End User agrees that its refund policy for purchases on an Amex Card is compliant with applicable law.
Fees. End User shall pay the fees set forth on Exhibit A to the Agreement, as well as any amounts charged to Pay Theory or the Vendors by any other Vendor in relation to Amex Card transactions. All fees and other amounts due pursuant to this addendum shall be subject to the terms and conditions applicable to fees generally in the Agreement.
Third-Party Beneficiary. American Express shall be a third-party beneficiary of the Agreement for purposes of Amex Card acceptance. As a third-party beneficiary, American Express shall have the right to enforce directly against End User the terms of the Agreement and this addendum as related to Amex Card acceptance. End User acknowledges and agrees that American Express shall have no responsibility or liability with regard to Pay Theory’s or any Vendor’s obligations to End User under the Agreement and this addendum.
End User agrees to complete and enter into all applicable documents required by Pay Theory in connection with End User’s acceptance of Amex Cards.
To the extent that this addendum conflicts with the terms of the Agreement, the terms set forth in this addendum shall control with respect to End User’s acceptance of Amex Cards to the extent of such conflict. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in the Agreement.
The following business are disallowed:
Any product, service or activity that is deceptive, unfair, predatory or prohibited by one or more Card Brands
Any sub-merchant selling goods or services that represent a violation of any law, statute or regulation
Any sub-merchant operating outside the United States.
Any sub-merchant submitting sales for payment that resulted from another commercial entity providing goods or services to the sub-merchant, including those businesses that may otherwise qualify themselves as a Payment Service Company or Payment Facilitator or Payments Processor.
Any sub-merchant selling products that infringe on the intellectual property rights of others, including counterfeit goods or any product or service that infringes on the copyright, trademark or trade secrets of any third party, such as many Cyberlockers.
Any sub-merchant accepting a card as payment for a dishonored check or for an item deemed uncollectible by another merchant
Any sub-merchant that accepts a card at a scrip-dispensing terminal
Adult entertainment and/or adult content websites including Electronic Commerce adult content (videotext) merchants that would include MCC’s 5967, 7273 and 7841
Airlines including Charter Airlines
Bidding Fee Auctions including Penny Auctions
Brand or Reputational damaging, potential or otherwise, activities including Child Pornography, Escort Services, Mail Order Brides, Occult
Commodity Trading or Security Trading
Credit Counseling or Credit Repair Services
Credit Protection or Identity Theft Protection Services
Currency Exchanges or Dealers
Debt Elimination, Debt Reduction or Debt Consulting Services
Direct Marketing: Continuity or Subscription services or merchants including MCC 5968 and 5969
Direct Marketing-Travel Related Arrangement Services including MCC 5962
Direct Marketing-Inbound Telemarketing including videotext services and MCC 5967
Discount Buying Memberships/Clubs
Discount Coupon Merchants or Online Sites
Distressed Property Sales and/or Marketing
Firearms and weapons including Ammunition
Gambling Activities and Establishments including MCC 7995, lotteries, internet gaming, daily fantasy sports, contests, sweepstakes, “special incentives,” or offering of prizes as an inducement to purchase goods or services
High interest rate non-bank consumer lending including, but not limited to, payday lending and title loans
Investment or “get rich quick” merchants, businesses or programs
Loan payments conducted on a Visa-branded credit card
Money Transfer, Wire Transfers, Money Orders, Transmitters, and Check Cashing including merchants required to be registered as Money Service Business Multi-Level Marketing Businesses
“Negative option” marketing, renewal, or continuity subscription practices; marketing activities involving low-dollar trails, “pay only for shipping,” and/or “free trial” periods after which a credit card is charged periodically and/or a significantly larger amount
Outbound Telemarketers and Telecom merchants including MCC’s 4814, 4816, and 5966
Prepaid Phone Cards
Prepaid Phone Services
Psychics and “occult” businesses
Quasi-Cash or Stored Value
Real Estate Flipping
Sale of Mobile Minutes
Selling or Sales of Social Media Activity
Sports Forecasting or Odds Making
Substances designed to mimic illegal drugs
Timeshares, including resale’s and related marketing
By clicking to SUBMIT this application, I represent and warrant that the execution, delivery and performance of this Merchant Application and the consummation of the transactions provided hereunder have been duly authorized by all necessary action. Further, by executing below, I hereby warrant that I have full and legal authority to execute the Merchant Agreement for and on behalf of the respective parties, and no further approval or consent of any other person is necessary in connection therewith and that I have the full authorization and capacity to bind the legal entity listed herein. I further represent and warrant that I had the opportunity to be represented by independent counsel of my choice in connection with the negotiation and execution of this Merchant Agreement.
Each of the undersigned authorizes Pay Theory and its third-party partners to use credit bureau/reporting agencies and/or their own agents to verify the accuracy of all information provided herein and to assess and monitor each of the undersigned’s credit status. Each of the undersigned authorizes all such credit bureau/reporting agencies to release any information they may have pertaining to him/her to Pay Theory and its third-party partners. No sales agent of Pay Theory is authorized to make any verbal or written modification to this Merchant Application, Merchant Agreement, or any appendices, attachments, exhibits, and/or third-party agreements related thereto.
I hereby agree to comply with the Merchant Agreement, and all appendices, attachments, exhibits, and/or third-party agreements related thereto. I understand that I also may request a copy of the Merchant Agreement from Pay Theory at any time. I further understand that no strikeouts, interlineations, additions or modifications to this preprinted Merchant Application or Merchant Agreement may be made and that this Merchant Application and Merchant Agreement may be transmitted to or from Pay Theory and/or retained electronically by Pay Theory, which will constitute an original. I understand that this Merchant Application and Merchant Agreement is subject to approval by Pay Theory. I further acknowledge and agree that I will not use my merchant account and/or the services for illegal transactions, for example, those prohibited by the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq, as may be amended from time to time.