Terms & Conditions
Last updated April 7th, 2018.
About our terms of service
Welcome to epay3. We developed this payment service (the “Service”) to make it easy for you to accept credit card, debit card, and ACH payments online (“Online Payments”) from your customers so you can focus on growing your business.
The epay3 Service
We provide you with software and a service to process Online Payments; we will respect and protect the privacy of our clients and users, data and personal information. You will also do all you can to protect consumer data including but not limited to contact information.
Registering for epay3
We require information about your company and run background checks to ensure that your company is in good standing with the department of insurance in your state as well as the Better Business Bureau. You give us authorization to run these checks initially and periodically in an effort to maintain a service that customers can trust. We reserve the right to decline your business and settle all balances with you.
We will fund your bank account for the transactions within days of the transactions being settled by our underlying payment processor. Typically you will receive funds in approximately 2 business days for credit card, debit card, and ACH transactions. At a regularly scheduled interval (typically monthly) we will debit your account for the fees associated with those transactions plus any recurring fees for using our service unless you opt for “Net Funding” where we only fund you the net amount of each transaction minus the fee. We may need to hold a reserve of your funds for an additional period of time if your account shows a history of chargebacks or risky patterns. If a chargeback occurs, we will do our best to help you and the customer resolve the dispute. If the chargeback is finalized, we will automatically debit your account for the chargeback amount in addition to a chargeback fee.
Either you or us can terminate this agreement at anytime and that termination is effective immediately. Even if this agreement is terminated, any balances that we owe you or you owe us will need to be settled.
Terms of Service
The Terms and Conditions described here constitute a legal agreement (“Agreement”) between the business organization listed as the “Merchant” on the Service registration page (sometimes referred to as “you,” “your”, “user”), epay3, Inc. (“epay3”), and ProPay, LLC (“ProPay”, collectively with epay3 referred as “we”, “our” or “us”).
Section A: The epay3 Service
1. Our Role
Our Service helps you accept and process credit card, debit card and ACH payments from your customers who want to pay you for insurance policies. epay3’s card processing service supports cards including US-issued and some non-US issued cards with a Visa, MasterCard, Discover, JCB, or American Express logo (collectively “the Card Networks”) including credit, debit, pre-paid, or gift cards. epay3 is not a bank or a financial institution and epay3 does not offer banking services as defined by the United States Department of Treasury. In addition, we do not assume any liability for the insurance policies sold using our Service. You will be required to register with epay3 to use the Service (see Registering for epay3).
2. Our Software
We provide the epay3 application to enable you and your customers to use the Service.
3. Authorization for Handling of Funds
By accepting this agreement, you authorize us to receive, disburse, and hold funds on your behalf when such funds from your card transactions settle from the Card Networks. You further authorize epay3 to instruct ProPay on how your card transaction settlement funds should be disbursed to you (such as by ACH credit transaction or sending you a paper check payable to you) and the timing of such disbursements. Settlement funds will be held in a deposit account at ProPay pending disbursement of the funds to you in accordance with the terms of this contract. You agree that you are not entitled to any interest or other compensation associated with the settlement funds held by ProPay pending settlement to your designated bank settlement account, that you have no right to direct that deposit account, and that you may not assign any interest in the deposit account at ProPay. We may periodically make available to you information in the epay3 management dashboard regarding anticipated settlement amounts received on your behalf from the Card Networks and are being held pending settlement. This settlement information does not constitute a deposit or other obligation of epay3 or ProPay to you. This settlement information reflected in the epay3 management dashboard is for reporting and informational purposes only, and you are not entitled to, and have no ownership or other rights in settlement funds, until such funds are credited to your designated bank settlement account. Your authorizations set forth herein will remain in full force and effect until your epay3 Account is closed or terminated.
4. Payment Methods
epay3 will only process card transactions that have been authorized by the applicable Card Network or card issuer. epay3 does not guarantee or assume any liability for transactions authorized and completed which may later be reversed or chargedback (see Chargebacks below). You are responsible for all reversed or chargedback transactions, regardless of the reason for, or timing of, the reversal or chargeback. epay3 may add or remove one or more types of cards as supported payment card any time. If we do so we will use reasonable efforts to give you prior notice of the removal.
5. Customer Service
We will provide you with customer service to resolve any issues relating to your epay3 Account, your card payment processing and use of our software, and the distribution of funds to your designated bank settlement account. You, and you alone, are responsible for providing service to your customers for any and all issues related to your products and services, including but not limited to issues arising from the processing of customers’ cards through the Service.
It is your responsibility to determine what, if any, taxes apply to the sale of your products and services and/or the payments you receive in connection with your use of the Service (“Taxes”). It is solely your responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. You acknowledge that we may make certain reports to tax authorities regarding transactions that we process and merchants to which we provide card payment services.
Pursuant to the Internal Revenue Code, merchant acquiring entities and third-party settlement organizations are required to file an information return with the IRS for each calendar year, reporting all payment card transactions and third-party network transactions with merchants occurring in that calendar year. You acknowledge that we will report to the Internal Revenue Service the total amount of the payments you receive each calendar year as required by law.
7. Your Data Security Obligations
You are fully responsible for the security of data on your site or otherwise in your possession. You agree to comply with all applicable state and federal laws and rules in connection with your collection, security and dissemination of any personal, financial, Card, or transaction information (defined as “Data”) on your site. You agree that at all times you shall be compliant with the Payment Card Industry Data Security Standards (PCI-DSS) and the Payment Application Data Security Standards (PA-DSS), as applicable. The steps you will need to take to comply with PCI-DSS and PA-DSS when using epay3 will vary based on your implementation. For more information about implementing epay3, please refer to our documentation. If we believe it is necessary based on your implementation and request it of you, you will promptly provide us with documentation evidencing your compliance with PCI DSS and/or PA DSS if requested by us. You also agree that you will use only PCI compliant service providers in connection with the storage, or transmission of Data defined as a cardholder’s account number, expiration date, and CVV2. You must not store CVV2 data at any time. Information on the PCI DSS can be found on the PCI Council’s website. It is your responsibility to comply with these standards.
8. Security and Fraud Controls
epay3 may provide or suggest security procedures and controls intended to reduce the risk to you of fraud (“Security Controls”). These Security Controls may include processes or applications that are developed by epay3 or by third parties. You agree to review all Security Controls and choose those that are appropriate for your business to protect against unauthorized transactions and, if necessary, use other procedures and controls not provided by us. Disabling or failing to properly use Security Controls increases your exposure to unauthorized Card transactions. Keep in mind that you are responsible for the use of lost or stolen data that is used to purchase products or services from your business. epay3 will not be liable for losses resulting from use of lost or stolen data with the Service.
9. Audit Right
If we believe that a security breach or compromise of data has occurred, we may require you to have a third-party auditor that is approved by us conduct a security audit of your systems and facilities and issue a report to be provided to us, our banking partners, and the Card Networks.
10. Your Privacy
11. Privacy of Others
You represent to epay3 that you are and will continue to be in compliance with all applicable privacy laws. You further represent that you have obtained all necessary rights and consents under applicable law to disclose to epay3 – or allow epay3 to collect, use, retain, and disclose – any Data that you provide to us or authorize us to collect, including information that we may collect directly from your end users via cookies or other means. As between you and epay3, you are solely responsible for disclosing to your customers that epay3 is processing credit card transactions for you and obtaining Data from such customers.
If you receive information about others, including cardholders, through the use of the Service, you must keep such information confidential and may only use it in connection with the Service. You may not disclose or distribute any such information to a third party or use any such information for marketing purposes unless you receive the express consent of the user to do so. You may not disclose card information to any third party, other than in connection with processing a card transaction requested by your customer under the Service and in a manner consistent with PCI DSS and applicable law.
12. Restricted Use
You are required to obey all laws, rules, and regulations applicable to your use of the Service (for example, those governing financial services, consumer protections, unfair competition, anti-discrimination, or false advertising). In addition to any other requirements or restrictions set forth in this Agreement, you shall not: (i) utilize the credit available on any Card to provide cash advances to cardholders, (ii) submit any card transaction for processing that does not arise from your sale of products or services to a buyer customer, or acceptance of a bona fide charitable donation, (iii) act as a payment intermediary or aggregator or otherwise resell our services on behalf of any third party, (iv) send what you believe to be potentially fraudulent authorizations or fraudulent card transaction, or (v) use epay3 in a manner that Visa, MasterCard, American Express, Discover, or any other Card Network or other payment network reasonably believes to be an abuse of such network or a violation of its applicable rules.
You further agree not to, nor to permit any third party to, do any of the following: (i) access or attempt to access epay3 systems, programs, or data that are not made available for public use; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way material from epay3; (iii) permit any third party to use and benefit from the Service via a rental, lease, timesharing, service bureau, or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service – or decompile, disassemble, or otherwise reverse engineer the Service – except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the normal operation of the Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Service except as expressly allowed under this section.
13. Suspicion of Unauthorized or Illegal Use
We reserve the right to not authorize or settle any transaction you submit which we believe is in violation of this Agreement, any other epay3 agreement, or exposes you, other epay3 users, our processors or epay3 to harm, including but not limited to fraud and other criminal acts. You are hereby granting us authorization to share information with law enforcement about you, your transactions, or your epay3 Account if we reasonably suspect that your use of epay3 has been for an unauthorized, illegal, or criminal purpose.
14. Card Network Rules
The Card Networks have established guidelines, bylaws, rules, and regulations (“Network Rules”). You are required to comply with all applicable Network Rules that are applicable to merchants. You can review portions of the Network Rules at Visa and MasterCard. The Card Networks reserve the right to amend the Network Rules. epay3 reserves the right to amend the Agreement at any time with notice to you as necessary to comply with Network Rules or otherwise address changes in the Service.
You agree to be bound by the Merchant Services Agreement set forth in Exhibit A to this Agreement if it applies to you. The Merchant Services Agreement applies to you if, for example, you receive payments from any Network exceeding the threshold specified by that network. By agreement to this Agreement (by “click through” or otherwise), you also agree to the terms and conditions of the Merchant Services Agreement, which constitutes a legal binding contract between you, on the one hand, and ProPay and its designated Member Bank, on the other hand, effective as of the date you receive the specified amount of payments from the Network.
15. Disclosures and Notices
You agree that epay3 can provide disclosures and notices regarding the Service to you by posting such disclosures and notices on our website, emailing them to the email address listed in your epay3 Account, or mailing them to the address listed in your epay3 Account. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy. Such disclosures and notices shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered.
16. References to Our Relationship
You agree that, from the time you begin processing payment with epay3 until you terminate your account with us, we may identify you as a customer of epay3. Neither you nor we will imply any untrue sponsorship, endorsement or affiliation between you and epay3.
17. Other epay3 Services
From time to time we may offer you additional features or services (“Additional Services”), which may be subject to additional or different terms of service. As with this Service, you may not use these Additional Services unless you agree to the applicable terms of service. Except where expressly stated otherwise, your use of Additional Services will have no impact on the applicability of this Agreement to the Service.
Section B: Registering for epay3
The epay3 Service is only made available under this Agreement to persons in the United States that operate a business selling products or services, or to accept donations for a bona fide charitable organization, and the epay3 Service is not made available to persons to accept card payments for personal, family, or household purposes. To use epay3 to receive payments, you will first have to register. When you register for epay3, we will collect basic information including your name, company name, location, email address, tax identification number, and phone number. If you have not already done so, you will also be required to provide an email address and password for your epay3 Account.
You may only register as a business organization. You must also provide information about an owner or principal of the business and you must be authorized to act on behalf of the business and have the authority to bind the business to this Agreement. To sign up a business to use the Service, you must agree to this Agreement on behalf of the business. If you have so agreed, the term “you” will mean you, the natural person, as well as the business organization that you represent.
2. Company Descriptions and Site URL
As part of your registration, you must provide your site URL and the name under which you do business, which may be the business’s legal name or a DBA. These two fields may appear in your customers’ credit or debit card statements. To avoid customer confusion and transaction disputes, you must enter a description that clearly identifies your business as well as an accurate site URL.
3. Verification and Underwriting
To verify your identity, we will require additional information including your business EIN or Tax ID, social security number, and date of birth. We may also ask for additional information to help verify your identity and assess your business risk including business invoices, a driver’s license or other government issued identification, or a business license. We may ask you for financial statements. We may request for your permission to do a physical inspection at your place of business and to examine books and records that pertain to your compliance with this Agreement. Your failure to comply with any of these requests within five (5) days may result in suspension or termination of your epay3 Account.
epay3 may use your information to apply for card merchant acquiring accounts on your behalf with certain Networks (such as American Express), and you hereby authorize us to do so. If we or American Express request that you do so, you will also be required to enter into a direct agreement with American Express in addition to this Agreement. In that case, unless you expressly inform us in writing otherwise, you hereby authorize epay3 to continue to manage your American Express account on your behalf and to cause funds settled from American Express transactions to be deposited to an omnibus bank account designated by epay3 for your benefit.
After we have collected and verified all your information, epay3 will review your account and determine if you are eligible to use the Service. epay3 may also share your information with our payment processors (such as ProPay), each of which may also make a determination regarding your eligibility. We will notify you once your account has been either approved or deemed ineligible for use of the Service.
By accepting the terms of this Agreement, you authorize us to retrieve information about you by using third parties, including credit bureaus and other information providers. You acknowledge that such information retrieved may include your name, address history, credit history, and other data about you. epay3 may periodically update this information to determine whether you continue to meet our eligibility requirements.
You agree that epay3 is permitted to contact and share information about you and your application (including whether you are approved or declined), and your use of epay3 with the payment processor, including ProPay. This includes sharing information (a) about your transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the program, (c) to create and update their customer records about you and to assist them in better serving you, and (d) to conduct epay3’s risk management process.
4. epay3 Service – US only
By registering for epay3, you confirm that you are either a legal resident of the United States, a United States citizen, or a business entity authorized to conduct business by the state in which you operate. epay3 may only be used to process payment for businesses in the fifty states of the United States of America and the District of Columbia. You may not export the Service directly or indirectly, and you acknowledge that the Service may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII).
By accepting this Agreement you confirm that you will satisfy these requirements.
5. Prohibited Businesses
There are certain categories of businesses and business practices for which the epay3 Service cannot be used (“Prohibited Businesses”). Most, although not all, of these Prohibited Business categories are imposed by Card Network rules or the requirements of our banking providers or processors. By registering for epay3, you confirm that you will not use the Service to accept payments in connection with any of the Prohibited Businesses. If you are uncertain as to whether your business is a Prohibited Business, or have questions about how these requirements apply to you, please contact us.
Section C: Processing Card Transactions and Receiving Your Funds
1. Processing Card Transactions
As used herein, “Chargeback” means a request that a buyer customer files directly with his or her card company or card issuing bank to invalidate a processed payment. “Claim” means a challenge to a payment that you or a buyer customer files directly with epay3. “Reversal” means epay3 reverses the settlement of funds from a processed card transaction that you received because (a) the card transaction is invalidated by the card issuer, (b) the settlement funds were sent to you in error by (i) epay3 or ProPay; (ii) the processors, suppliers or licensors of epay3 or ProPay; or (iii) any of the respective affiliates, agents, directors and employees of any of the entities listed in (i) or (ii) above, (c) the sender of the payment did not have authorization to send the payment (for example: the buyer used a card that did not belong to the buyer), (d) you received the payment for activities that violated this Agreement or any other epay3 agreement, or (e) epay3 decided a Claim against you.
You agree that you will honor all eligible cards presented for payment by your customers for your products and services in accordance with the Network Rules, this Agreement and any operating guides that we may provide you from time to time. You agree that you will obtain an authorization from the Card Networks for each card transaction, as required under the Network Rules, and will not submit a card transaction for settlement where there is a negative authorization or the card is otherwise expired. You acknowledge that the existence of an affirmative authorization from us or the Card Networks does not mean that a particular card transaction will not be subject to Chargeback, Reversal or Claim at a later date.
epay3 will provide a receipt to the customer at the conclusion of the purchase transaction that includes all information required under Card Network rules and applicable law.
We may offer you the ability to have funds settled to your bank account in a currency different from the one in which you accepted payment from a customer (“Multi-Currency Processing”). To use this service, you must provide us with a valid bank account for each currency for which you request settlement, based on our list of available settlement currencies. We may add or remove currencies from our list of available settlement currencies at any time. If you use Multi-Currency Processing, we will identify at the time of charge, the conversion rate that will apply to the charge. If you refund a charge, the conversion rate that will apply will be the rate in effect at the time of the refund, not the charge. By submitting a charge or refund for processing you will be deemed to have accepted the rate. You may choose not to use the Multi-Currency Processing service at any time. You may also change the bank account information or other settings associated with your use of Multi-Currency Processing, but any such changes will only affect subsequent charges.
2. Payouts and Transaction History
We will pay out funds settling from the Card Networks to your designated bank settlement account (“Bank Account”) you provided when establishing your epay3 Account in the amounts actually received (less our Fees, as defined below) for card transactions submitted to our Service. Alternatively, we may deposit the full amount in your Bank Account and then debit your Bank Account for an aggregate of transaction and service fees on a periodic basis. The payouts and debits will be made to and from this Bank Account. This Bank Account must be located at bank branch in the United States and held in the name of the business. You are responsible for the accuracy and correctness of information regarding your Bank Account. Funds for any given transaction will not be transferred to your Bank Account until the transaction is deemed complete. Transactions will be deemed complete when we have received funds settling from the Card Networks and when we or our processing financial institutions have accepted such funds. The actual timing of the transfers to your Bank Account of the settling funds will be subject to the Payout Schedule (as defined below).
After each payout of card settlement funds to your Bank Account, we will update information in your epay3 Account to reflect settlement. Information regarding your card transactions processed and settled with the Services (“Transaction History”) will be available to you when you login to our website using your epay3 Account. We provide a minimum of one year of Transaction History on our website. Except as required by law, you are solely responsible for compiling and retaining permanent records of all transactions and other data associated with your epay3 Account, your Transaction History and your use of the Service. epay3 is not responsible for maintaining Transaction History or other records in a manner consistent with your record retention obligations.
3. Payout Schedule
Payout schedule refers to the time it takes for us to initiate a transfer to your designated Bank Account of settlement funds arising from card transactions processed through the Service (“Payout Schedule”). Once your Bank Account information has been reviewed, epay3 will initiate transfer of settlement funds (net of Fees, Chargebacks, and other funds owed to us for any reason) in accordance with the Payout Schedule, the terms of which will be made available to you when you login to your epay3 management dashboard. The settlement funds should normally be credited to your Bank Account within 1-2 days of us initiating the payout. We are not responsible for any action taken by the institution holding your Bank Account that may result in some or all of the funds not being credited to your Bank Account or not being made available to you. You can contact epay3 to inquire about changing the timing of your Payout Schedule. Upon submitting a request, you will be informed of the process and requirements for epay3 to review your Payout Schedule.
We reserve the right to change the Payout Schedule or suspend payouts to your Bank Account should we determine it is necessary due to pending disputes, excessive or anticipated excessive Chargebacks or refunds, or other suspicious activity associated with your use of the Service, or if required by law or court order.
4. Reconciliations and Errors
Your Transaction History will be available to you when you login to the epay3 management dashboard. Except as required by law, you are solely responsible for reconciling your Transaction History with your actual card payment transactions. You agree to notify us of any discrepancies arising from such reconciliation and verification. We will investigate any reported discrepancies and attempt to rectify any errors that you or we discover. In the event you are owed money as a result of the discrepancy, we will transfer funds to your Bank Account in the next scheduled payout. Your failure to notify us of a error or discrepancy in your Transaction History within sixty (60) days of when it first appears on your Transaction History will be deemed a waiver of any right to amounts owed to you in connection with any such error or discrepancy in processing your card payments.
If you submit or cause us to process transactions erroneously, you agree to contact us immediately. We will investigate any reported errors and attempt to rectify any errors that you or we discover by crediting or debiting your Bank Account as appropriate. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
5. Refunds and Returns
By accepting these terms of service, you agree to submit any and all refunds and adjustments for returns of your products and services through the epay3 Service to the cardholders card in accordance with the terms of this Agreement and Network Rules. Network Rules require that you will (i) maintain a fair return, cancellation or adjustment policy; (ii) disclose your return or cancellation policy to customers at the time of purchase, (iii) not give cash refunds to a customer in connection with a Card sale, unless required by law, and (iv) not accept cash or any other item of value for preparing a Card sale refund.
Full refunds must be for the exact dollar amount of the original transaction including tax, handling charges, and other. The refund amount may not exceed the original sale amount except by an amount equal to any reimbursements to customer for postage costs incurred for product returns. You will use best efforts to process all refunds within sixty (60) days after the original transaction date, and you acknowledge that refunds processed after that time may not be capable of being processed.
For processed refunds, epay3 will deduct the refund amount (including any applicable Fees) from (i) settlement funds owed to you from processing of other card transactions, or (ii) funds in any Reserve Account. If these funds are not sufficient, you authorize epay3 to initiate an ACH debit entry to your Bank Account in the amount necessary to complete the refund transaction to the cardholder’s card. In the event epay3 cannot access your Bank Account by means of ACH debit, you agree to pay all funds owed to epay3 upon demand. You are solely responsible for accepting and processing returns of your products and services; epay3 has no responsibility or obligation for processing such returns.
A Chargeback is typically caused when a customer disputes a charge that appears on their bill. A Chargeback may result in the reversal of a transaction, with the amount charged back to you. You can be assessed Chargebacks for: (i) customer disputes, or (ii) unauthorized or improperly authorized transactions, or (iii) transactions that do not comply with Network Rules or the terms of this Agreement or are allegedly unlawful or suspicious, or (iv) any reversals for any reason by the Card Network, our processor or acquiring bank, or the cardholder bank.
When a Chargeback is issued, you are immediately liable to epay3 for the full amount of payment of the Chargeback plus any associated Fees, fines, expenses or penalties (including those assessed by the Card Networks or our payment processors). You agree that epay3 may recover these amounts by debiting by means of ACH debit of your Bank Account associated with your epay3 Account, debiting your Reserve Account, or setting off any amounts owed to you by us. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of any unpaid Chargebacks unpaid by you.
Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a customer’s complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur.
7. Contesting your Chargebacks
You or epay3 may elect to contest Chargebacks assessed to your account. epay3 may provide you with assistance including notifications and software to help contest your Chargebacks. We do not assume any liability for our role or assistance in contesting Chargebacks.
You agree to provide us with the necessary information, in a timely manner and at your expense, to investigate or help resolve any Chargeback. You also grant us permission to share records or other information required with the cardholder, the cardholder’s financial institution, and your financial institution to help resolve any disputes. You acknowledge that your failure to provide us with complete and accurate information in a timely manner may result in an irreversible Chargeback being assessed.
If the cardholder’s issuing bank or the Card Network does not resolve a dispute in your favor, we may recover the Chargeback amount and any associated fees from you as described in this Agreement.
We reserve the right, upon notice to you, to charge a fee for mediating or investigating Chargeback disputes.
8. Excessive Chargebacks
At any point, epay3, ProPay, the Card Networks, or our payment processors may determine that you are incurring excessive Chargebacks. Excessive Chargebacks may result in additional fees, penalties, or fines. Excessive Chargebacks may also result in (a) additional controls and restrictions to your use of the epay3 Service, including without limitation, (i) changes to the terms of your Reserve Account, (ii) increases to your applicable Fees, or (iii) delays in your Payout Schedule; or (b) possible suspension or termination of your epay3 Account and access to the Service. The Card Networks may also place additional controls or restrictions as part of their own monitoring programs for merchants with excessive Chargebacks.
9. epay3 Fees
You agree to pay the Fees (“Fees”) assessed by us to you for providing the payment services described in this Agreement. These fees will be calculated pursuant to the Fee Schedule linked to here and incorporated into this Agreement by reference. We reserve the right to revise our Fees at any time, subject to a thirty (30) day notice period to you.
You acknowledge that you are also responsible for any penalties or fines imposed on epay3 or directly to you by any Card Network or financial institution as a result of your activities.
10. Our Collection Rights
To the extent permitted by law, we may collect any obligations you owe us under this Agreement by deducting the corresponding amounts from the Reserve Account or from funds payable to you arising from the settlement of card transactions. Fees may be assessed at the time a transaction is processed and will be first deducted from the funds received for such transactions. If the settlement amounts or Reserve Account are not sufficient to meet your obligations to us, we may charge or debit the Bank Account or credit card registered in your epay3 Account for any amounts owed to us. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.
Additionally, we may require a personal guarantee from a principal of a business for funds owed under this Agreement. If we require a personal guarantee we will specifically inform you in advance.
In certain circumstances, we may determine that a Reserve Account is necessary to provide the Services to you. Where needed, epay3 may, in its sole discretion, set the terms of your Reserve Account and notify you of such terms, which may require that a certain amount (including the full amount) of the funds received for your transaction is held for a period of time or that additional amounts are held in a Reserve Account. epay3, in its sole discretion, may elect to change the terms of the Reserve Account at any time for any reason based on your payment processing history or as requested by our payment processors.
epay3 may fund the Reserve Account by means of: (i) any funds payouts made or due to you for card transactions submitted to the service, or, or (ii) amounts available in your Bank Account by means of ACH debit to that Bank Account, or (iv) other sources of funds associated with your epay3 Account; or (iv) requesting that you provide funds to epay3 for deposit to the Reserve Account.
12. Security Interest
You grant us a lien and security interest in the Reserve Account, all Card transactions (including future Card transactions), any rights to receive credits or payments under this Agreement, and all deposits and other property of yours possessed or maintained by us on your behalf. You will execute, deliver, and pay the fees for any documents we request to create, perfect, maintain and enforce this security interest.
Section D: License, Termination, and Other General Legal Terms
1. Your License to Use the Service; Our Trademarks
epay3 grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Service solely to accept and receive payments and to manage the funds you so receive in a manner consistent with this Agreement and documentation provided to you. The Service includes our website, any software, programs, documentation, tools, Internet-based services, components, images, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you by epay3. You will be entitled to download updates to the Service, subject to any additional terms made known to you at that time, when epay3 makes these updates available. epay3 may terminate this license at any time in the event that you use the Service in a manner inconsistent with this License.
We may also periodically make available certain epay3 logos, trademarks or other identifiers for your use (“epay3 Marks”). If we do so, you will use them subject to and in accordance with epay3’s then current epay3 Marks Usage Agreement. epay3 may limit or revoke your ability to use epay3 Marks at any point.
The Service is licensed and not sold. We reserve all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. We own all interest, title, and other worldwide IP Rights (as defined below) in the Service and all copies of the Service.
For the purposes of this Agreement, “IP Rights” means all patent rights; copyright, including rights in derivative works; moral rights; rights of publicity; trademark, trade dress and service mark rights; goodwill; trade secret rights; and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place epay3 under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, epay3 does not waive any rights to use similar or related ideas previously known to epay3, or developed by its employees, or obtained from sources other than you.
The Agreement is effective upon the date you agree to it (by indicating acceptance electronically or in writing) and continues so long as you use the Service or until terminated by you, epay3, or ProPay.
You may terminate this Agreement by closing your epay3 Account at any time by following the instructions on our website in your epay3 Account profile. We may terminate this Agreement and close your epay3 Account at any time for any reason effective upon providing you notice in accordance with Section A.15 above. We may suspend your epay3 Account and your access to the Service and any funds in your epay3 Account, or terminate this Agreement, if (i) we determine in our sole discretion that you are ineligible for the Service because of the risk associated with your epay3 Account, including without limitation significant credit or fraud risk, or for any other reason; (ii) you do not comply with any of the provisions of this Agreement; or (iii) upon request of a Card Network or the a card issuer.
5. Effects of Termination
Upon termination and closing of your epay3 Account, we will immediately discontinue your access to the Service. You agree to complete all pending transactions, stop accepting new transactions through the Service, and immediately remove all Card Network logos from your site (unless otherwise permitted to do so under a separate license from the Card Networks). You will not be refunded the remainder of any Fees that you have paid for the Service if your access to or use of the Service is terminated or suspended. Any funds in our custody will be paid out to you subject to the terms of your Payout Schedule.
Termination does not relieve you of your obligations as defined in this Agreement and epay3 may elect to continue to hold any funds deemed necessary pending resolution of any other terms or obligations defined in this Agreement, including but not limited to Chargebacks, Fees, Refunds, or other investigations or proceedings.
Upon termination you agree (i) immediately cease your use of the Service, (ii) discontinue use of any epay3 or other trademarks licensed under this Agreement, and (iii) immediately remove any epay3 references and logos from your site. In addition, upon termination you understand and agree that (iv) the license granted under this Agreement shall end, (v) we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, (vi) we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Service, or any termination or suspension of the Service or deletion of your information or account data, and (vii) you are still liable to us for any Chargebacks, Fees, Refunds, or other amounts incurred by you or through your use of the Service prior to termination.
6. Your Liability
You are responsible for all Reversals, Chargebacks, Claims, fines, fees, penalties and other liability arising out of or relating to your use of the Service and your breach of this Agreement. You are responsible for the use of lost or stolen cards to purchase products or services from your business, and selected and implementing Security Controls that are appropriate for your business. You agree to reimburse your customer, epay3, ProPay, and any third party designated by epay3 or ProPay for any and all such liability.
epay3 will have the final decision-making authority with respect to Claims, including without limitation claims for refunds for purchased items that are filed with epay3 by you or your customers. You will be required to reimburse epay3 for your liability. Your liability will include the full purchase price of the item plus the original shipping cost (and in some cases you may not receive the item back). You will not receive a refund of any fees paid to epay3.
Without limiting the foregoing, you agree to defend, indemnify, and hold harmless epay3, ProPay, and their respective employees and agents (collectively “Disclaiming Entities”) from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to (i) your breach of any provision of this Agreement; (ii) your use of the Service, including without limitation any Reversals, Chargebacks, Claims, fines, fees, penalties and attorneys’ fees; (iii) negligence or willful misconduct of your employees, contractors, or agents; and (iv) all third-party indemnity obligations we incur as a direct or indirect result of your acts or omissions (including indemnification of any Card Network or card issuer).
If you are liable for any amounts owed to epay3, epay3 may immediately remove such amounts from your Reserve Account and deduct the amounts owed to epay3 from such Reserve Account funds. If you do not have sufficient funds in the Reserve Account to cover your liability, you will be required to immediately add funds additional funds to your Reserve Account to cover funds owed to epay3. If you do not do so, epay3 may engage in collections efforts to recover such amounts from you at your cost and expense.
7. Representation and Warranties
You represent and warrant to us that: (a) if you are a natural person, you are at least eighteen (18) years of age or, if you are under eighteen (18) years of age, you’ve obtained the consent of your parent or legal guardian to your execution of this Agreement and use of the epay3 Services in the manner prescribed by epay3; (b) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name under which you sell products and services; (d) any transaction submitted by you will represent a bona fide transaction for permitted products or services, or a charitable donation; (e) any transactions submitted by you will accurately describe the products or services sold and delivered to a purchaser, or a donation received for the purpose accurately described on your site; (f) you will fulfill all of your obligations to each customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the purchaser; (g) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; and (i) you will not use the Service, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner so as to interfere with the normal operation of the Service.
8. No Warranties
THE SERVICE AND ALL ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. USE OF THE SERVICE IS AT YOUR OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE SERVICE OR FROM (I) epay3 OR ProPay; (II) THE PROCESSORS, SUPPLIERS OR LICENSORS OF epay3 OR ProPay; OR (III) ANY OF THE RESPECTIVE AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES OF ANY OF THE ENTITIES LISTED IN (I) OR (II) ABOVE (COLLECTIVELY, THE “DISCLAIMING ENTITIES” AND INDIVIDUALLY A “DISCLAIMING ENTITY”) WILL CREATE ANY WARRANTY FROM ANY DISCLAIMING ENTITY TO YOU. YOU SPECIFICALLY ACKNOWLEDGE THAT NEITHER epay3 NOR ProPay HAVE ANY CONTROL OVER THE PRODUCTS OR SERVICES THAT ARE PAID FOR WITH THE SERVICES, AND NEITHER epay3 NOR ProPay CAN ENSURE THAT YOUR CUSTOMERS WILL COMPLETE A TRANSACTION OR IS AUTHORIZED TO DO SO.
WITHOUT LIMITING THE FOREGOING, THE DISCLAIMING ENTITIES DO NOT WARRANT THAT THE INFORMATION THEY PROVIDE OR THAT IS PROVIDED THROUGH THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT THE SERVICE WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY SUBJECT MATTER DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK – YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. THE DISCLAIMING ENTITIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT HOW LONG WILL BE NEEDED TO COMPLETE THE PROCESSING OF A TRANSACTION.
THE DISCLAIMING ENTITIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND NEITHER epay3 NOR ProPay WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
9. Limitation of Liability and Damages
IN NO EVENT SHALL A DISCLAIMING ENTITY (AS DEFINED IN SECTION 8 ABOVE) BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO THIS AGREEMENT OR THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL ANY OF THE DISCLAIMING ENTITIES (AS DEFINED IN SECTION 8 ABOVE) BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR epay3 ACCOUNT OR THE INFORMATION CONTAINED THEREIN, OR YOUR FAILURE TO USE OR IMPLEMENT SECURITY CONTROLS THAT ARE APPROPRIATE FOR YOUR BUSINESS.
THE DISCLAIMING ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF SERVERS USED IN CONNECTION WITH THE SERVICES AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (C) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (D) ANY SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE; (E) ANY ERRORS, INACCURACIES OR OMISSIONS IN ANY CONTENT OR INFORMATION, FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR INFORMATION, IN EACH CASE POSTED, EMAILED, STORED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (F) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THS SECTION 9, THE DISCLAIMING ENTITIES’ CUMULATIVE LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES AND IN ALL EVENTS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID BY YOU TO epay3 DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF epay3 OR ProPay HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE PROVISIONS OF THIS SECTION 9 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Service is controlled and operated from facilities in the United States. epay3 makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States, foreign and local laws and regulations, including but not limited to export and import regulations. You may not use the Service from a country embargoed by the United States, or if you are a person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
10. Disputes; Choice of Law; Jurisdiction and Venue
You agree that any disputes arising out of or relating to this Agreement or the Service shall be resolved in accordance with this Section 10.
This Agreement is governed by the laws of the State of Texas (without regard to its choice of law provisions). The exclusive venue for any actions or claims arising under or related to this Agreement shall be in the appropriate state or federal court located in Travis County, Texas. ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that we may have under trade secret, copyright, patent, or other laws. Our delay or failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
11. Right to Amend
We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Service or software with notice that we in our sole discretion deem to be reasonable in the circumstances, such as on our website or any other website maintained or owned by us. Any use of the Service or software after our publication of any such changes shall constitute your acceptance of this Agreement as modified.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without consent or other restriction.
13. Change of Business
You agree to give us at least thirty (30) days prior notification of your intent to change your current product or services types, your trade name, or the manner or types of payments you accept. You agree to provide us with prompt notification if you are the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. You also agree to promptly notify us of any adverse change in your financial condition, any planned or anticipated liquidation or substantial change in the basic nature of your business, any transfer or sale of 25% or more of your total assets or any change in the control or ownership of you or your parent entity. You will also notify us of any judgment, writ or warrant of attachment or execution, or levy against 25% or more of your total assets not later than three (3) days after you obtain knowledge of it.
This Agreement binds you and your respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or any permitted assigns.
15. Third-Party Services and Links to Other Web Sites
16. Force Majeure
No party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this section will affect or excuse your liabilities and obligations under Section 10, including without limitation for Reversals, Chargebacks, Claims, fines, fees, refunds or unfulfilled products and services.
17. Responding to Legal Process
18. Entire Agreement
This Agreement and all policies and procedures that are incorporated herein by reference constitute the entire agreement between you, epay3, and ProPay with respect to the provision of the Service. In the event of a conflict between this Agreement and any other epay3 agreement or policy relating to the subject matter herein, this Agreement shall prevail. Except as expressly provided herein, these terms and conditions describe the entire liability of epay3, ProPay, and our vendors and suppliers (including processors), set forth your exclusive remedies with respect to the Service, and define your access and use of the Service. If any provision of this Agreement (or portion thereof) is held to be invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following sections of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: Sections A(3) (“Authorization for Handling of Funds”), A(6) (“Taxes”), A(7) (“Your Data Security Obligations”), A(8) (“Security and Fraud Controls”), A(11) (“Privacy of Others”), C(4) (“Transfer API”), C(5) (“Reconciliations and Errors”), C(6) (“Refunds and Returns”), C(7) (“Chargebacks”), C(9) (“Excessive Chargebacks”), C(10) (“epay3 Fees”), C(11) (“Our Collection Rights”), C(13) (“Security Interest”), D(2) (“Ownership”), D(5) (“Effects of Termination”), D(6) (“Your Liability”), D(8) (“No Warranties”), D(9) (“Limitation of Liability and Damages”), D(10) (“Disputes; Choice of Law; Jurisdiction and Venue”), D(14) (“Parties”), D(17) (“Responding to Legal Process”), D(18) (“Entire Agreement”), D(19) (“Survival”), and D(19) (“Card Network Disclosure”).
20. Card Network Disclosure
The ProPay mailing address is ProPay Inc., 3400 N. Ashton Blvd, Suite 200, Lehi, UT 84043 and its phone number is 866.622.2390. ProPay discloses that: (a) it is the only entity approved to extend acceptance of Visa and MasterCard products directly to you; (b) it must be a principal to this Agreement; (c) it is responsible for educating you on pertinent Visa and MasterCard rules with which you must comply, but this information may be provided to you by epay3; (d) it is responsible for and must provide settlement funds to you; and (e) it is responsible for all funds held in reserve that are derived from settlement.
Exhibit A: Merchant Services Agreement
This Merchant Services Agreement for Sub-Merchants (“Merchant Agreement”) is made among ProPay, Inc, having its principal office at 3400 N. Ashton Blvd, Suite 200, Lehi, UT 84043 and its designated Member Bank (collectively “Acquirer”) and the “User” as defined in, and in connection with, the Terms of Service between epay3, Inc. and the User (herein referred to as “Sub-merchant”). Capitalized terms not otherwise defined herein have the respective meanings given them in the epay3 Terms of Service. Acquirer will provide Sub-merchant with certain payment processing (the “Services”) in accordance with the terms of this Merchant Agreement. In consideration of Sub-merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with Visa, MasterCard, Discover, and certain similar entities (collectively, “Associations”), Sub-merchant is required to comply with the Operating Regulations as they pertain to applicable credit and debit card payments. In addition, if Sub-merchant meets certain requirements under the Operation Regulations or an Association or the Operating Regulations otherwise require, Sub-merchant may be required to enter into a direct relationship with an entity that is a member of the Associations. By agreeing to the epay3 Terms of Service to which this Merchant Agreement is an exhibit (by “click through” agreement or otherwise), Sub-merchant has fulfilled this requirement, if and when applicable. However, Acquirer understands that Sub-merchant may have contracted with epay3 to obtain certain processing services and that epay3 may have agreed to be responsible to Sub-merchant for all or part of Sub-merchant’s obligations contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:
1. Certain Sub-merchant Responsibilities. Sub-merchant agrees to comply, and to cause third parties acting as Sub-merchant’s agent (“Agents”) to comply, with the Associations’ and other payment networks’ by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks (collectively, “Operating Regulations”). Sub-merchant may review the VISA, MasterCard, and Discover websites for a copy of the Visa, MasterCard and Discover regulations. The websites are: http://usa.visa.com/merchants; and http://www.mastercard.com/us/merchant/ and http://www.discovernetwork.com/merchants/. Without limiting the foregoing, Sub-merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the Bank Secrecy Act, the US Treasury’s Office of Foreign Assets Control (OFAC) and the Federal Trade Commission. For purposes of this section, Agents include, but are not limited to, Sub-merchant’s software providers and/or equipment providers.
If so indicated in the epay3 Terms of Service, Sub-merchant may be a limited-acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and MasterCard card types (i.e., consumer credit, consumer debit, and commercial cards) and must display appropriate signage to indicated the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.
Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sales made by Sub-merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities.
Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Sub-merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Sub-merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 – Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand.
2. Sub-merchant Prohibitions. Sub-merchant must not i) require a cardholder to complete a postcard or similar device that includes the cardholder’s account number, card expiration date, signature, or any other card account data in plain view when mailed, ii) add any tax to transactions, unless applicable law expressly requires that a Sub-merchant impose a tax (any tax amount, if allowed, must be included in the transaction amount and not collected separately), iii) request or use an account number for any purpose other than as payment for its goods or services, iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub-merchant, v) disburse funds in the form of cash unless Sub-merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Sub-merchant), or Sub-merchant is participating in a cash back service, vi) submit any transaction receipt for a transaction that was previously charged back to the Acquirer and subsequently returned to Sub-merchant, irrespective of cardholder approval, vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt, viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable, or ix) submit a transaction that represents collection of a dishonored check. Sub-merchant further agrees that, under no circumstance, will Sub-merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track-2 data. Neither Sub-merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.
3. Settlement. Upon receipt of Sub-merchant’s sales data for card transactions, Acquirer will process Sub-merchant’s sales data to facilitate the funds transfer between the various Associations and Sub-merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Sub-merchant directly to Sub-merchant’s designated demand deposit account (“Sub-merchant-Owned Designated Account”) or, at Sub-merchant’s request, to a third-party check writer’s account.. Any dispute regarding amount of settlement shall be between epay3 and Sub-merchant. Any dispute regarding the receipt of settlement shall be between Acquirer and Sub-merchant. Acquirer will debit the epay3 Reserve Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer may also debit the Sub-merchant-Owned Designated Account for funds owed to Acquirer as a result of the Services provided hereunder. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub-merchant or the epay3 reserve account.
4. Term and Termination. This Agreement shall be binding upon Sub-merchant upon Sub-merchant’s acceptance (by “click through” agreement or otherwise). The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number and shall be coterminous with epay3’s Terms of Service with Sub-merchant.
Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Agreement without notice if (i) Sub-merchant or epay3 fails to pay any amount to Acquirer when due, (ii) in Acquirer’s opinion, provision of a service to Sub-merchant or epay3 may be a violation of the Operating Regulations or any Laws, (iii) Acquirer believes that Sub-merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquirer determines Sub-merchant poses a financial or regulatory risk to Acquirer or an Association, (v) Acquirer’s agreement with epay3 terminates, (vi) any Association deregisters epay3, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by any of the Associations.
5. Limits of Liability. Sub-merchant agrees to provide Acquirer, via a communication with epay3, with written notice of any alleged beach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such breach.
EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Sub-merchant’s sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement. In the event that Sub-merchant has any claim arising in connection with the Services, rights, and/or obligations defined in this Agreement, Sub-merchant shall proceed against epay3 and not Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Sub-merchant with respect to this Agreement or the Services. Sub-merchant acknowledges Acquirer is only providing this Agreement to assist in epay3’s processing relationship with Sub-merchant, that Acquirer is not liable for any action or failure to act by epay3, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by epay3. If epay3 is unable to provide its services to Sub-merchant in connection with this Agreement and Acquirer elects to provide those services, directly, Sub-merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer’s then current Bank Card Merchant Agreement, which would be provided to Sub-merchant, will govern Acquirer’s relationship with Sub-merchant. If epay3 subsequently provides its services to Sub-merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from epay3 and this Agreement will govern Acquirer’s relationship with Sub-merchant.
6. Miscellaneous. This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Agreement may not be assigned by Sub-merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. Acquirer may amend this Agreement upon notice to Sub-merchant in accordance with Acquirer’s standard operating procedure. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement. “Member Bank” as used in this Agreement shall mean a member of VISA, MasterCard and/or Discover, as applicable, that provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, Member Bank shall be Wells Fargo, an California Banking Corporation, located in San Francisco, CA 94104. The Member Bank is a party to this Agreement. The Member Bank may be changed, and its rights and obligations assigned to another party by Acquirer at any time without notice to Sub-merchant.