Contracts
- General Terms of Service for All Services
- Schedule A - Pricing: P2P
- General BAA - Customers
- Schedule A - Pricing: QRS
- Schedule A - Pricing: DoTherapy
- Schedule A - Pricing QueueLogix
- Schedule A - Pricing: NextStep Solutions
- Privacy Policy - SwervePay
- SwervePay Schedule A: BillingTree
- Schedule A - Pricing: SwervePay Professional
- Schedule A - Pricing: SwervePay Professional Custom
- Bank Draft Authorization Form for ACH
- SwervePay Payfac Sub-Merchant Processing Agreement Jan 2018
- Schedule A - Health Pro 2.25 2.95 .30
- Schedule A - Pricing: SwervePay Health Pro
- Schedule A - Pricing: Merchant Services
- Schedule A - Health Pro 2.25 2.75 .25
- Schedule A - Health Enterprise 2.25 2.75 .25
- Schedule A - SwervePay Health Enterprise
- Schedule A - Pricing: QRS 3.25
- Schedule A - Pricing: eAssist
- Schedule A - Pricing: Apex Payment Processing
- Schedule A - SolutionReach Payment Processing
- Schedule A - ServeFirst
- Schedule A - Yapi
- Schedule A - Pricing: Visualutions
- Schedule A - Pricing: Apex Payment Processing Additional Information Request
- Schedule A - Pricing: Getix Payment Processing
- Schedule A - Pricing: APEX Payment Processing
- Products and Services Agreement - SwervePay Health
- Schedule A - SolutionReach - Text to Pay
- Schedule A - Pricing: Apex CC Processing w ACH
- Schedule A - Health Enterprise 2.59 2.95 .15
- Schedule A - Pricing: Revspring Payment Processing
- Schedule A - SolutionReach Text to Pay 66
- Schedule A - Pricing: Revspring Payment Processing 71
- Schedule A - Pricing: TheraOffice
- Schedule A - Pricing: SwervePay Payment Processing 3.95
- Schedule A - Pricing: APEX Payment Processing 2.49
- Schedule A - Pricing: Ontario 2.25
- Schedule A - Pricing: Ontario 2.50 Flat .25
- Schedule A - Pricing: Ontario 2.75 Flat .25
- Schedule A - SwervePay Health Enterprise 2.50 .30
- Schedule A - Pricing: Ontario 2.05 Flat
- SwervePayPayfacSub-MerchantProcessingAgreement.OS.042020
- SwervePayGeneralTermsofService.OS.042020
- Exhibit A Ontario 1% 2020 2.05% Flat
- Exhibit A Ontario 1% 2020 2.10% 2021
- Exhibit A Ontario 1% 2020 2.30% 2021
- Exhibit A Ontario 1% 2020 2.50% 2021
- Exhibit A Ontario 1% 2020 2.20% 2021
- Exhibit A Ontario 1% 2020 2.27% 2021
- Exhibit A Ontario 1% 2020 2.50% .25 2021
- Exhibit A Ontario 1.5% 2020 1.65% 2021
- Exhibit A Ontario 1% 2020 2.30% .15 2021 2 Yr
- Exhibit A Ontario 1.0% 2020 1.70% 2021
- Exhibit A Ontario 1.0% 2020 2.75% 2021
- Exhibit A Ontario 1% 2020 2.30% 2021 $15 Dispute
- Exhibit A Ontario 1.0% 2020 3.25% 2021
- Exhibit A Ontario 1.0% 2020 3.6% 2021 .25 ACH
- Exhibit A Ontario 1.0% 2020 1.75% 2021 .25 ACH 2 Year
- Exhibit A Ontario 1.0% 2020 2.68% 2021 .25 ACH 12/21
- Exhibit A Ontario 1.0% 2020 2.75% 2021 .25 ACH 2 Return
- Exhibit A Ontario 1.0% 2020 2.0% 2021 .25 ACH
- Exhibit A Ontario 1.0% 2020 2.3% 2021 .21 ACH
- Exhibit A Ontario 1.0% 2020 2.80% 2021 .25 ACH
- SwervePay.SigningBonus.061520
- Exhibit A Ontario 1.0% 2020 2.50% 2021 .25 ACH 12/21
- Exhibit A Ontario 1.0% 2020 2.95% 2021 .25 ACH
- Exhibit A Ontario 1.0% 2020 2.70% 2021 .25 ACH 12/21
- Exhibit A Ontario 1.0% 2020 2.40% 2021 .25 ACH
- Exhibit A Ontario 1.0% 2020 2.85% 2021 .25 ACH
- Exhibit A Ontario 1.0% 2020 4.50% 2021 .25 ACH
- Exhibit A Ontario 1.67% .09 ACH
- Exhibit A Ontario 1.0% 2020 3.65% 2021 .25 ACH
- Schedule A - Health Pro 2.25 2.95 .30
- Exhibit A Ontario 1.0% 2020 2.0% 2021 .25 ACH $25 Dispute
- Exhibit A Ontario 1.0% 2020 2.75% 2021 .25 ACH $2.50 Return
- Exhibit A Ontario 1.0% 2020 3.15% 2021 .25 ACH $3.00 Return
- Exhibit A Ontario 1.0% 2020 1.65% 2021 .25 ACH $3.00 Return
- Exhibit A Ontario 1.0% 2020 3.00% 2021 .25 ACH $3.00 Return
- Exhibit A Ontario 1.0% 2020 3.15% 2021 .25 ACH $3.00 Return
- Exhibit A Ontario 1.0% 2020 1.75% 2021 .25 ACH
- Exhibit A Ontario 1.0% 2020 3.75% 2021 .25 ACH $3.00 Return
- Skagit.SwervePayPayfacSub-MerchantProcessingAgreement.OS.042020
- Exhibit A Ontario 1.0% 2020 2.5% 2021 .25 ACH
- Exhibit A Ontario 1.0% 2020 3.00% 2021 .25 ACH
- Exhibit A Ontario 1.0% 2020 1.60% 2021 .30 ACH
- Exhibit A Ontario 1.0% 2020 2.55% 2021 .25 ACH
- Schedule A Ontario 1.0% 2020 4.00% 2021 .25 ACH
- SwervePay.TermsAndConditions
- Schedule A Ontario 1.0% 2020 1.70% 2021 .25 ACH
- Schedule A Ontario 2.50% .25 ACH
- Schedule A Ontario 2.70% .25 ACH $7 Return
- Schedule A Ontario 1.0% 2020 3.35% 2021 .25 ACH
- Schedule A Ontario 1.0% 2020 3.10% 2021 .25 ACH
- Schedule A Ontario 2.57% .25 ACH $7 Returns
- Schedule A SwervePay 2.99% Flat .29 ACH
- Schedule A Ontario 2.57% .25 ACH $7 Returns 12/21
- Schedule A Ontario 1.0% 2020 2.22% 2021 .25 ACH 2 Year
- Schedule A Ontario 1.0% 2020 2.15% 2021 .25 ACH
- Schedule A Ontario 1.0% 6 mo 3.50% .25 ACH $7 Returns 12/21 4 Yr
- Schedule A Ontario 1.0% 2020 3.20% 2021 .25 ACH
- Schedule A Ontario 1.0% 2020 2.20% 2021 .25 ACH
- Schedule A Ontario 1.25% 2020 3.00% 2021 .25 ACH $7.50 Return
- Schedule A Ontario 2.50%
- Schedule A Ontario 1.25% 2020 1.85% 2021 .25 ACH
- Schedule A Ontario 2.75% $0.25 ACH
- Schedule A Ontario 1.25% 2020 3.00% 2021 .25 ACH
- Schedule A Ontario 1.50% 2020 2.25% 2021 .25 ACH
- Schedule A Ontario 1.95
- Schedule A Ontario 4.00% $0.25 ACH
- Schedule A RevSpring Payment Processing 2.85% $0.08
- Schedule A - Pricing: TheraOffice 033121
- General BAA - Customers 033121
- Schedule A: Anytime 080521
- Schedule A: SMS 080521
- DDA Change Request
- Additional Location Agreement
General Terms of Service for All Services
Effective November 21, 2017
DownloadTable of Contents
SwervePay General Terms of Services for All Services
UNLESS OTHERWISE EXPRESSLY AGREED IN AN AUTHORIZED WRITTEN AGREEMENT, THESE TERMS OF SERVICE (“TOS”) APPLY TO ALL SERVICES DELIVERED BY OR RECEIVED FROM SWERVEPAY FOR ANY MERCHANT OR CUSTOMER. THESE TOS ARE INCORPORATED BY REFERENCE INTO EACH AND EVERY AGREEMENT BETWEEN SWERVEPAY AND EACH PURCHASE, CONSUMER, OR OTHER USER OF ITS SERVICES. IT CONSTITUTES A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND SWERVEPAY, LLC. YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE AGREEMENT. BY USING ANY OF OUR SERVICES, YOU ACCEPT THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, PROMPTLY DISCONTINUE USE OF THE SERVICES.
In these TOS, “Customer,” “You” and “Your” refer to each customer or sub-merchant and its designated agents, including Your administrative contact, employees, officers, directors, agents, Affiliates, successors and assigns, and “SwervePay,” “we,” “us” and “our” refer collectively to SwervePay, LLC, an Illinois limited liability company, and its Members, officers, directors, employees, agents, affiliates, subsidiaries (including, but not limited to SwervePay Auto, LLC, SwervePay Finance, LLC and SwervePay Health, LLC), successors and/or assigns. These TOS explains our obligations to You, and Your obligations to us in relation to the service(s) You purchase, use or otherwise acquire from us (“Services”). By using any Services, You agree to establish an account with us for such Services. When You use Your account or permit someone else to use Your account to purchase or otherwise acquire access to any SwervePay Services or to modify or cancel Your Services (even if we were not notified of such authorization), this Agreement as amended covers any such service or actions. Additionally, You agree that the administrative contact for any Services provided to You is Your agent with full authority to act on Your behalf with respect to such Services, as permitted by the Services and related documentation, including (but not limited to) the authority to terminate, transfer (where transfer is permitted by the Agreement), or modify such Services, or purchase additional services. Any acceptance of Your application(s) or requests for our Services and the performance of our Services will be deemed to occur at our offices in Chicago, Illinois.
Important Notice Concerning Bundled Services: If You purchase separate SwervePay Services that are sold together as a “bundled” package, as opposed to Your purchasing such services separately, termination of any part of the Services may result in termination of all SwervePay Services provided as part of the bundled package unless arrangements are made to pay for the Services separately.
Definitions
“Affiliate(s)” means a person or entity controlled by or under common control with another person or entity, including, without limitation, as the term “affiliate” is construed under Rule 405 promulgated under the Securities Act of 1933 as amended.
“Customer Agreement(s)” means any agreement for Services between SwervePay and a Customer, each of which shall and hereby does incorporate these TOS by reference except as otherwise expressly agreed in such agreement.
“Card Issuer” means, as applicable, any of Visa, MasterCard, Discover, American Express, any ATM or debit or gift card network, or any other financial service card organizations, with two or more of such organizations hereinafter sometimes collectively referred to as “Card Issuers” and as to each Card Issuer, each such card issued by it, a “Card” and each holder or owner of a Card being a “Cardholder” or “Customer.”
“Card Organization Rules” means the rules imposed from time to time by each Card Issuer intended to govern the usage of its network and services.
“Chargeback” means a challenge to a payment that a Customer or Cardholder files directly with his, her or its Card Issuer, bank or other similar party.
“Customer Data” means any information received from a Cardholder or Customer used in connection with the Services.
“Financial Institution” means banks or financial institutions having business relationships with one or more Financial Processors that have agreed to evaluate and provide merchant accounts and payment authorization services to merchants.
“Financial Processor” means an entity with which SwervePay has established a relationship that performs the back-end authorization and processing of Transactions between the Customer’s Financial Institution and the Cardholder’s bank.
“Services” means any services used by Customer, including merchant services, payment services, and services involving Software and any add-on or additional services requested or specifically described in an agreement. Current descriptions of SwervePay’s Services are available at www.swervepay.com.
“Software” means the object code version of SwervePay’s client software, HTML code, application programming interfaces (“APIs”), related documentation and other client software or code which SwervePay may provide to Customer, including updates, to enable SwervePay to provide the Services to Customer. Unless otherwise specified, Software shall not include any source code. The Software is proprietary to SwervePay and is licensed to Customer pursuant to these TOS, and subject strictly to those terms and restrictions.
“Management Web Site” means SwervePay’s online account management tools for Your use of the Services.
“Swipe Device” means a device, which if purchased or required for Your use of the Services, is capable of receiving information from a Card for payment processing, including via magnetic swipe, chip-reader, or other means. Once Your Customer Account is approved, and if purchased or required for Your account, a Swipe Device will be sent to You or acquired by You for use at the address provided. SwervePay does not warrant that the swipe device or the Services will be compatible with Your computer, mobile Device or third-party carrier. Your use of the Swipe Device and the Services may also be subject to the terms of Your mobile device manufacturer and Your carrier. We shall not be responsible for any damages caused by defects associated with any Swipe Devices used by You with respect to Your business or any hacking, or other unauthorized use, of any of such Swipe Devices.
“Transaction” means a transfer of funds between You and a third-party using the Services, including information related to the purchase of goods and services from Customer by a third-party, such as any of its customers, clients, patients, or consumers of its products and/or services. Specifically, a Transaction is an authorization, delayed capture, sale, void, voice authorization or credit data transmission between SwervePay and its back-end processors in connection with the Services.
Customer Obligations
General Service Requirements. Customer shall be solely responsible for the following:
- Accuracy of Information Provided. You must provide accurate and complete information to us when applying for Your Customer Account. If Your request to open a Customer Account is approved, we may request additional information from You at any time. You shall maintain and promptly update such information if it should change.
- Customer Websites. Customer is responsible for establishing, hosting and maintenance of its website(s) and its connection to the internet (“Customer Website(s)”), fulfilling all orders for products and services sold by merchant to its users on the merchant website(s) or otherwise, including without limitation transmitting merchant’s registration information and transaction data to SwervePay servers or via the SwervePay Management Website and ensuring that any data stored or transmitted by merchant in conjunction with the Services and for enrollment for the Services is accurate, complete and in the form as requested by SwervePay, is securely collected and is not corrupted due to merchant’s systems. Customer is also responsible for reviewing the transactions in its account on a regular basis and notifying SwervePay promptly of unauthorized activity through its account.
- Banking. Customer is responsible for establishing and maintaining a commercial banking relationship and account with one or more Financial Institutions, for purposes of receiving the Services (“Account”). The terms of such relationship shall be determined solely by Customer and the Financial Institution.
- Access. Customer is responsible for keeping its access credentials, including usernames, user IDs, passwords and the like, confidential. Customer shall notify SwervePay immediately upon learning of any unauthorized use of its user name or password. Customer shall be solely responsible for (i) updating its passwords for access to the Services periodically, and (ii) creating passwords that are reasonably “strong” under the circumstances, in accordance with SwervePay’s requirements. A “strong” password is at least six characters long, does not contain all or part of the user’s account name, and contains at least three of the four following categories of characters: uppercase characters, lowercase characters, base 10 digits, and symbols found on the keyboard (such as !, @, #). Strong passwords should be generated in such a way that knowledge of one does not lead to knowledge of another.
- Business Practices. Customer is responsible for maintaining commercially reasonable business practices in conjunction with use of the Services, collecting, storing and transmitting its customer data in a secure manner and protecting the privacy of its customer data. Customer shall comply with SwervePay’s requests for reasonable action on Customer’s part, to the extent necessary, to maintain security and integrity of the Services;
- Computing. Customer is responsible for updating to the most current Software version and security updates and patches necessary to properly operate the Services and keeping all Customer enrollment and payment information current and updated on the Management Web Site; and
- Compliance. Customer agrees, and hereby represents and warrants that Customer shall (a) use the Services in accordance with the applicable user guides and other documentation provided by SwervePay from time to time; and (b) not use or permit others to use information obtained through the use of the Services for any purpose other than in conjunction with the Services and in a manner described in the documentation for the Services.
Honoring Cards. Whenever possible, You will identify the person presenting a Card and purporting to be a person authorized to use a Card and check the expiration date and signature on each Card. You will not honor a Card if the Card has expired or if You determine or suspect that the account number on the Card does not match the account number on the Card’s magnetic stripe or the account number is listed on a current Electronic Warning Bulletin file. You are responsible for ensuring that the Cardholder understands that You are responsible for the transaction, including the goods or services that are the subject of the transaction. In addition, You are solely responsible for all customer service issues relating to Your goods or services, including pricing, fulfillment, order cancellation, returns, refunds and adjustments, warranty, and support. You will not add any amount to the posted price of goods or services You offer as a condition of paying with a Card that is not consistent with the Card Issuer Rules and laws. You will properly disclose to each Cardholder that is or may be used in connection with any of the transactions subject to this Agreement, at the time of transaction, any limitation You have on accepting returned merchandise. Your return policy must be in accordance with the Card Issuer Rules. If Your refund policy prohibits returns or is unsatisfactory to the Cardholder, You may still receive a Chargeback relating to such transactions. You agree to make a written receipt available to the Cardholder for any transaction. You may provide the Cardholder the option to decline a written receipt. You may also offer electronic receipts delivered by SMS or e-mail to the Cardholder.
Returns. You agree to process returns of, and provide refunds and adjustments for, Your goods or services through Your Customer Account in accordance with these TOS, any Customer Agreement, each Vendor Processor’s Rules and applicable Card Issuer Rules.
Restrictions on Use of Services. In connection with the Services, You will comply with all Payment Card Industry Data Security Standard (“PCI-DSS”) requirements and consent to our Acceptable Use Policy, which is available at www.swervepay.com: You also agree that You will (a) not send SMS receipts to customers who have expressly refused delivery of a receipt in that manner; (b) comply with all applicable laws and regulations and all requirements of: (i) Card Issuers applicable to merchants; and (ii) all SwervePay Processors; (c) maintain the security of account login information You receive as part of Your use of the Services; (d) if You lose Your computer or mobile device, or You have reason to believe that Your account is no longer secure, You will immediately notify us; (e) not accept payments in connection with any illegal activity, or any activity that is inconsistent with Your type of business or any activity prohibited by the rules of Your Card Issuer.
Compliance With Law. You may only use the Services in compliance with all laws, rules, and regulations applicable to the use of the Services. We may choose not to authorize or settle any transaction submitted to SwervePay if we believes the transaction is in violation of these TOS, the applicable Customer Agreement(s) or may cause harm to You, us, or our Processors.
Processing Errors. You will promptly notify us of any errors within ten (10) days after the date of the asserted error or missing transaction(s). If You do not notify us within the ten (10)-day period, we shall not be liable for, nor obligated to investigate, correct, such asserted error and You agree that all claims related to such error are waived. If we discover processing errors, we will attempt to rectify those processing errors efficiently.
Wireless Service Providers. The Services may utilize SMS messages delivered through wireless service providers, such as AT&T, Sprint, Verizon, etc. You acknowledge that any SMS message goes through Your and the message recipient’s wireless service provider’s systems. The privacy statement of each associated wireless service provider applies as the message passes through those systems. As a requirement to permit usage of SMS systems some wireless service providers may require that we disclose to them information about users of the Services and the nature of business to be conducted. In this situation the information will be used to ensure legitimate use of the SMS systems and not for marketing purposes. You acknowledge and agree that we may provide information about You to wireless service providers as described above. You may upload or enter certain data from Your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You may be made aware of or offered services, features, products, applications, online communities, or promotions provided by us or our affiliates. Installing any of our applications or Software grants us the right to send the identifiers for Your mobile device and Your Customers to third-parties for the use of advertising purposes. You are responsible for securely managing access to Your data and to the Services. You agree to be bound by our privacy policy, as it may be amended from time to time in accordance with its terms or these TOS.
SwervePay's Obligations
Services. Subject to the terms in this Agreement, SwervePay agrees to (i) provide to Customer the Services for which Customer enrolls and pays the applicable fees, either upon request or pursuant to a Customer Agreement, including without limitation the transmission of Transaction information to Financial Processors, and (ii) provide Customer with access to standardized reports regarding Customer’s Transactions processed using the Services and certain reporting tools to assist Customer in accounting activities. SwervePay hereby grants to Customer the right to access and use the Services in accordance with these TOS and any applicable Customer Agreement. SwervePay is not bound by nor should Customer rely on any representation by (i) any agent, representative or employee of any third-party referring or relating to the Services, including Your application or request for them; or in (ii) information posted on our Website of a general informational nature.
Modification of Terms; Changes to Services. Except as otherwise provided in a Customer Agreement, Customer agrees that SwervePay may: (a) revise, amend, update or otherwise change these TOS, including without limitation modifying the service fees or payment terms; and/or (b) revise, amend, update or otherwise change or terminate any part of the Services at any time. Any such revision or change will be binding and effective either, at SwervePay’s sole discretion, thirty (30) days after posting a revision of these TOS on the SwervePay Management Web Site, or upon electronic or written notification to You. You agree to periodically review the Management Web Site, including the current version of this Agreement available on the Management Web Site, to be aware of any such revisions. If You do not agree with any revision to the Agreement, You may terminate this Agreement at any time by providing us with thirty (30) days’ prior written notice. Notice of Your termination will be effective thirty (30) calendar days after receipt and processing by us. Any fees paid by You if You terminate Your Agreement with us are nonrefundable, except as otherwise expressly stated herein, but You will not incur any additional fees due to such termination. By continuing to use SwervePay Services after any revision to this Agreement or change in Services, You agree to abide by and be bound by any such revisions or changes. No non-executive employee, contractor, agent or representative of SwervePay is authorized to alter or amend the terms and conditions of these TOS.
Secure Transactions. SwervePay has implemented and will maintain security systems for the transmission of Customer’s Transactions, consisting of encryption and “firewall” technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet. SwervePay does not guarantee the security of the Services or Transaction data, and SwervePay will not be responsible in the event of any infiltration of its security systems or other breach of Security of Your data or systems or Customer data or systems, provided that SwervePay has used commercially reasonable efforts to prevent any such infiltration. Customer further acknowledges and agrees that Customer, and not SwervePay, is responsible for the security of Transaction data or information or any other information stored on Customer’s servers, and that SwervePay is not responsible for any other party’s servers (other than subcontractors of SwervePay solely to the extent SwervePay is liable for its own actions hereunder).
Technical Support for Services. SwervePay shall provide the technical support services to Customer, if any, pursuant the support package, if any, selected by Customer in a Customer Agreement. SwervePay’s then-current, standard technical support descriptions for Services shall be available at www.swervepay.com.
Proprietary Rights, Licenses, Restrictions
SwervePay IP. Except as otherwise set forth herein, all right, title and interest in and to: (i) all registered and unregistered trademarks, service marks and logos; (ii) all patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) all trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) all registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property (“IP”), proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services identified herein (“SwervePay IP”) are owned by SwervePay Services or its licensors, and You agree to make no claim of interest in or ownership of any such SwervePay IP. You acknowledge that no title to the SwervePay IP is transferred to You, and that You do not obtain any rights, express or implied, in the SwervePay Services or its licensors’ services, other than the rights expressly granted in this Agreement. To the extent that You create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to You, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by SwervePay and all existing and future copyright and other right, title and interest in and to each such Derivative Work, are assigned to, and shall automatically vest in, SwervePay, and to cooperate with SwervePay in connection with any actions by it to establish its rights in the same. SwervePay shall have no obligation to grant You any right in any such Derivative Work. Except to the extent permitted by applicable law, Customer shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Services or any components thereof, or otherwise apply any procedure or process to the Services or components thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings or any algorithm, data, process, procedure or other information contained therein. Customer shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Services or components thereof.
Limited License for Software and Services. Unless otherwise expressly provided in a Customer Agreement, SwervePay grants Customer a personal, limited, non-exclusive, non-transferable license, during such time that You satisfy the conditions set forth in each of Your Customer Agreement(s) and these TOS, to electronically access and use the Services solely for the purpose described herein and in any Customer Agreement. Except as expressly allowed herein, a Customer Agreement or by applicable law, You are not permitted to do any of the following and shall not allow any third-party to do any of the following: (i) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way any components of the Services; (ii) permit any third-party to benefit from the use or functionality of the Services via a rental, lease, timesharing, service bureau, or other arrangement; (iii) transfer any of the rights granted to You under any Customer Agreement or these TOS; (iv) work around any technical limitations in the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer the any component of Services except as otherwise permitted by applicable law; (v) perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or the use of the Services by our other licensees or customers; or (vi) export the Services, directly or indirectly. We reserve all rights not expressly granted to You in these TOS or a Customer Agreement. Components of the Services are protected by intellectual property laws, including international, U.S. federal and state laws. SwervePay and its licensors, collectively (as their respective interests may appear) own the title, copyright, and other worldwide intellectual property rights in the Services and all copies of the Services and any Software. Neither any Customer Agreement nor these TOS: (i) grant You any rights to our trademarks or service marks or (ii) limit any rights that we may have under trade secret, copyright, patent or other laws, domestic or abroad.
Customer Data. All “Customer Data” provided by You or any of Your Customers in the course of a Transaction shall be owned by You or Your Customer (subject to Your right to make the grants in this Section 3). You hereby grant us a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display the Customer Data for the purposes of (i) providing and improving the Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymised and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and (iv) any other purpose for which consent has been provided by the Customer.
Privacy and Security
SwervePay Privacy Polices. Our privacy statement for the Services is located on our Website at https://www.SwervePay.com and is incorporated herein by reference, as it is applicable to the Services and each Customer Agreement. The privacy statement sets forth Your and our rights and responsibilities with regard to Your personal information. You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Website. You agree to monitor our Website periodically to review such revisions. By using our Services after modifications to the privacy statement, You have agreed to these modifications. You acknowledge that if You do not agree to any such modification, You may terminate this Agreement.
Cardholder Information. You shall keep all Customer Data confidential and secure. You shall not disclose to any third-party any Cardholder account information or other personal information except in connection with the Services and in accordance with the Card Organization Rules or applicable law (including but not limited as required under the Health Insurance Portability and Accountability Act or “HIPAA”). You must keep all Cardholder information in a secure manner to prevent disclosure to unauthorized parties. You may not disclose or distribute any such information to a third-party or use the information for marketing purposes unless You receive the express consent of the user.
Use of Data. Customer acknowledges and agrees that in the course of providing the Services, SwervePay will capture certain transaction and user information (collectively, the “Data”). Customer agrees to provide to SwervePay, and SwervePay shall capture, only the Data that is required by the Software and is necessary for SwervePay to provide the Services. SwervePay agrees to use Data in its personally identifiable form only as necessary to complete the requested transaction. SwervePay shall not disclose Data to third-parties or use the Data, except that SwervePay shall have the rights: (i) to use the Data as necessary to perform the Services pursuant to these TOS or contemplated in a Customer Agreement (including distributing the Data to third-parties providing services requested by Customer); (ii) to maintain the Data as long as necessary, as required by law or as used internally for record keeping, internal reporting, and support purposes; (iii) to compile and disclose Data in the aggregate where individual merchant Data is not identifiable, including without limitation, calculating merchant averages by region or industry; and (iv) to provide the Data as required by law or court order, or to defend SwervePay’s rights in a legal dispute. You represent and warrant that You have provided notice to, and obtained consent from, any third-party individuals whose personal Data You supply to us as part of our services with regard to: (i) the purposes for which such third-party’s personal Data has been collected, (ii) the intended recipients or categories of recipients of the third-party’s personal Data, (iii) which parts of the third-party’s Data are obligatory and which parts, if any, are voluntary; and (iv) how the third-party can access and, if necessary, rectify the data You hold about them. You further agree to provide such notice and obtain such consent with regard to any third-party personal Data You supply to us in the future. We are not responsible for any consequences resulting from Your failure to provide notice or receive consent from such persons or entities nor for Your providing outdated, incomplete or inaccurate information.
PCI-DSS Requirements. While SwervePay and/or our Affiliates use security and encryption features to ensure the security and safety of Your personal information and that of Your Customers, SwervePay cannot absolutely guarantee the security of Your personal information from unauthorized access, loss or disclosure by third-parties. To ensure the highest level of security You agree to comply with our Acceptable Use Policy, including the PCI-DSS requirements and You represent and warrant that, while using any Services: (a) You are, and shall remain, in full compliance with all laws, statutes and federal and/or state regulations, as well as the Rules as may be applicable to You, Your business and any Card transaction; (c) You (and any outside agent that You may utilize to submit Transactions to SwervePay) comply and will comply with all our Acceptable Use Policy and all PCI-DSS requirements and You hereby agree to pay any fines and penalties that may be assessed by any Card Issuer as a result of Your non-compliance with PCI-DSS requirements, any data breaches, or by Your failure to accurately validate its compliance. You will review and monitor the requirements at http://www.visa.com/CISP, and http://www.pcisecuritystandards.org in order to determine the timeframes and mandates for compliance under PCI-DSS requirements. Your obligations to do so continue through the later of (y) the Termination Date or the (z) date You cease using all Services. You acknowledge and understand that You may be prohibited from participating in Card Issuer programs if it is determined that You are non-compliant.
Fees, Accounts and Payment Terms
Fees. As consideration for the Services, You agree to pay SwervePay the applicable service(s) fees set forth on our Website, or as otherwise provided by SwervePay in each Customer Agreement in force and effect, at the time of Your selection (and as it may be amended from time to time), or, if applicable, upon receipt of Your invoice from SwervePay. All fees are due immediately and are non-refundable, except as otherwise expressly noted herein or in a Customer Agreement.
Payments; Refunds; Pre-Payments. You are solely responsible for the credit card or Direct Debit (“Payment Method”) account information You provide to SwervePay and must promptly inform SwervePay of any changes thereto (e.g., change of expiration date or account number). Changes should be communicated to SwervePay by entering the updated information through the SwervePay tools or contacting SwervePay customer support. All payments shall be made in U.S. dollars. All fees are non-refundable unless otherwise explicitly stated in this Agreement. If we do issue a refund, we will do so via the Payment Method used by You to pay for the Services being refunded. For additional services or add-on services, Customer shall either prepay SwervePay’s then-current annual prepaid fees, if available, or pay the then-current monthly fees for such services, in accordance with the applicable Customer Agreement. If Customer uses SwervePay add-on services that are subject to additional standard fees that are not prepaid at enrollment, then SwervePay shall either immediately charge Customer’s credit card or debit Customer’s DDR account, as applicable, for SwervePay’s then-current fees for such services or invoice Customer for such additional standard fees, and Customer shall pay such invoice immediately.
Taxes. Customer is solely responsible for collecting, reporting and remitting any taxes required to be collected, paid or withheld in connection with the Services (“Taxes”). SwervePay is not responsible to determine whether or not Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. If in a given calendar year You receive (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Vendor or its Vendor processor(s) is authorized to report annually to the Internal Revenue Service (“IRS”), as required by law, Your name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments You receive in a calendar year, and the total dollar amount of the payments You receive for each month in a calendar year. You agree to pay all Taxes (including value added, sales and other taxes (other than taxes based on SwervePay’s income)) related to the Services or payments made by You hereunder. All payments due to SwervePay shall be made without any deduction or withholding on account of any tax, duty, charge or penalty, except as required by law, in which case, the sum payable by a party in respect of which such deduction or withholding is to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, SwervePay receives and retains (free from any liability in respect thereof) a net sum equal to the sum it would have received but for such deduction or withholding being required. Set up fees, if any, will become payable on the applicable effective date for the applicable SwervePay Services. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less (the “Agreement Interest Rate”). Customer hereby authorizes us to charge Customer’s Payment Method for the fees due for the Services, and Customer shall provide to SwervePay proper authorization for purposes of allowing SwervePay to debit the applicable Customer account to collect fees due under these TOS and each Customer Agreement. All fees owed by Customer to third-parties (for example, Financial Institutions, Financial Processors and merchant account providers), are Customer’s sole responsibility and are not covered by the Services.
Overcharge Fee. Excluding merchant services, in the event You exceed the Transaction limit permitted for the applicable Services as provided in any Customer Agreement (“Excess Transaction”) in any month, Customer may be charged a monthly transaction fee (“Monthly Overcharge Fee”) to be determined by multiplying each Excess Transaction processed in that month by the corresponding Service’s Transaction Fee. The Monthly Excess Transaction Fee shall be invoiced or debited in accordance with the terms for Fees above.
Chargebacks. These terms apply to Chargebacks for merchant services:
- The amount of a transaction may be reversed or charged back to Your Customer Account (each a “Chargeback”) for reasons, including, but not limited to, any one of the following: (i) an invalid Card account is submitted by You; (ii) neither the Cardholder nor a person authorized by the Cardholder received the goods or services requested; (iii) the Cardholder disputes the quality of the goods or services received; (iv) the Cardholder never received a credit for a returned item or a cancelled order; (v) the Cardholder was charged incorrectly; (vi) the authorization code is invalid; (vii) the Card was expired or not effective; (viii) the transaction is disputed; (ix) the transaction is reversed by the Card Issuer, our Processor, or a financial institution for any reason; or (x) the transaction was not authorized.
- For any transaction that results in a Chargeback, we may withhold or cause to be withheld the Chargeback amount in the Reserve Account. You may be subject to a chargeback on sales for a minimum period of one hundred eighty (180) days from the date the sale was entered into the processing system. We may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by each applicable Vendor Processor from Your Customer Account, Your Reserve Account, if any, any proceeds due to You, or Your bank account. If You have pending Chargebacks or we reasonably believe that a Chargeback is likely, we may withhold or delay payments from Your Customer Account for the later of: (i) two hundred seventy (270) days following the Termination Date; (ii) one hundred eighty (180) days from Your last Chargeback; or (iii) thirty (30) days following Your delivery of written notification disputing the Chargeback in question and the basis therefor with appropriate documentation in accordance herewith. You agree to respond to all Chargebacks promptly. 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 together with interest computed at the Agreement Interest Rate on any unpaid Chargeback amounts You owe to us from time to time. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of SwervePay related to any efforts to collect any Customer Account deficit balances (including, but not limited to, Chargeback amounts) which remain unpaid by for more than thirty (30) days.
Customer Accounts.
- Deposit of Funds. Upon validation of Your Customer Account, Vendor or Vendor’s Processor(s) will deposit to Your Customer Account the amounts actually received by us for completed transactions submitted through the Services at the end of every business day unless otherwise agreed in Your Customer Agreement. Payouts to Your bank account will normally register within two (2) to three (3) business days. Each Transaction will be considered complete when SwervePay has received the funds and when such funds have been accepted by the designated bank or financial institution. We shall have the right to deduct from Your Sub-Customer Account: (i) following the end of each month during the term of this Agreement any Fees owing from You to us or any of our Processors; and (ii) immediately at any time, any Chargebacks, penalties or other Fees owing from You to us or any of our Processors. Should we need to conduct an investigation or resolve any dispute related to Your Sub-Customer Account (including but not limited to issues around possible prohibited transactions or other breaches of these TOS or any Customer Agreement, or applicable SwervePay, Processor or Card Issuer Rules), we may defer payout or restrict access to Your funds for as long as we deem necessary. We also may defer payout or restrict access to Your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
- Customer Account Activity. You are responsible for monitoring Your transactions and ensuring that our payments to You are correct. You agree to contact us immediately if You discover or become aware of an error or an unauthorized transaction on Your Customer Account. You must notify us of any errors in payments made to You within thirty (30) days of the error or unauthorized transaction. Your failure to notify us of any such errors within the applicable thirty (30)-day period will constitute a waiver of any right or claim to amounts owed to You. Further, You are responsible for reconciling all transactions with Your Customer Account and keeping permanent records of such transactions.
- Reserve Accounts. For the purpose of providing a source of funds to pay damages which SwervePay or our Processors may potentially suffer in connection with providing You Services, and to pay Fees, fines, Chargebacks or other amounts You may owe or be assessed by any processor, a separate reserve account (the “Reserve Account”) may be established from time to time by You, us or any of our Processors to secure Your current and/or future potential obligations as reasonably determined us or our Processor. The Reserve Account will be in an amount as reasonably determined to protect the present or future interests and may be raised, reduced or removed at any time, in our or our Processor’s sole discretion. If there are not sufficient funds in Your Reserve Account, You grant us the right of recoupment and set-off and may fund the Reserve Account from any funding source associated with Your Customer Account, including but not limited to any funds due to You for the Services or under any Customer Agreement or available in Your bank account. If, in our opinion, the Personal Property Securities Act 2009 enables us to improve our security interest over the Reserve Account, You agree to do all things necessary, including obtaining the appropriate authorizations and executing any document to effect such improvement.
Representations and Warranties; Disclaimers; Limitations of Liability
By SwervePay. SwervePay represents and warrants that: (a) it has all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (b) all corporate action on the part of SwervePay, its officers, board of directors and stockholders necessary for the performance of its obligations under this Agreement has been taken.
Limitations of Liability.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN A SERVICES AGREEMENT (AS RELATES TO THE SUBJECT MATTER THEREOF), OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, SWERVEPAY AND ITS LICENSORS, AS APPLICABLE, EXPRESSLY DISCLAIM EACH WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES OR SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- SWERVEPAY’S LIABILITY TO YOU RELATING TO THE SERVICES, WHETHER ARISING UNDER THESE TOS, A SERVICES AGREEMENT, OR OTHERWISE, IS LIMITED, AT SWERVEPAY’S OPTION, TO (a) REFUNDING THE PRICE OF THE SERVICES IN RESPECT OF WHICH THE LIABILITY AROSE OR (b) TO PROVIDING, REPLACING OR REPAIRING THOSE SERVICES, OR (c) PROVIDING THOSE SERVICES AGAIN IN A MANNER REASONABLY CALCULATED TO AVOID FUTURE LIABILITY.
- Customer acknowledges that SwervePay is not a financial or credit reporting institution. SwervePay is responsible only for providing data transmission to effect or direct certain payment authorizations for You and is not responsible for the results of any credit inquiry, the operation of websites of ISPs or Financial Institutions or the availability or performance of the Internet, or for any damages or costs You suffer or incur as a result of any instructions given, actions taken or omissions made by You, Your financial processor(s), Your Financial Institution or any ISP. IN NO EVENT WILL SWERVEPAY’S LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE) ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO SWERVEPAY BY YOU HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. IN NO EVENT WILL SWERVEPAY OR ITS LICENSORS HAVE ANY LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE) TO YOU OR ANY OTHER PARTY FOR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE REGARDING ANY LIMITED REMEDY. Notwithstanding the above, the limitations set forth above shall be enforceable to the maximum extent allowed by applicable law.
- YOU ACKNOWLEDGE THAT NEITHER SWERVEPAY NOR ITS LICENSORS HAVE REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY OR WITHOUT COMPROMISE OF THE SECURITY SYSTEMS RELATED TO THE SERVICES OR THAT ALL ERRORS WILL BE CORRECTED.
By Customer. You represent and warrant that You shall comply with all applicable privacy, consumer and other laws and regulations with respect to Your: (i) provision, use and disclosure of the Data, Cardholder information; (ii) dealings with the users, Cardholders or other parties providing the Data; and (iii) use of the Services. You also represent and warrant that that You are either (x) a legal resident of the United States, (y) a United States citizen, or (z) a business entity authorized to conduct business by the state in which it operates. The Services may only be used within the United States of America.
- Corporate and Other Entity Customers. If Customer is a corporation or corporate entity (which for purposes hereof shall include any limited liability company, limited partnership, limited liability partnership or other entity that limits the liability of its beneficial owners) You represent and warrant that: (i) You have all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (ii) all corporate action on the part of You, Your officers, board of directors, stockholders, partners or members necessary for the performance of Your obligations under this Agreement has been taken; (iii) this Agreement constitutes Your valid and legally binding obligation, enforceable against it in accordance with the terms hereof; (iv) You are in good standing in Your jurisdiction of incorporation or organization and are eligible to register and use the Services; (v) Your authorized representative(s) has read and understands the entire Agreement and, after doing so, You desire to be bound thereby, and You have been represented by counsel of Your own choosing; (vi) no representations of any kind or character have been made to induce You to execute and enter into any Agreement, these TOS, or to accept the Services; (vii) any sales transaction submitted by You will represent a bona fide sale by You; (viii) any sales transactions submitted by You will accurately describe the goods and/or services sold and delivered to a Customer; (ix) You will fulfill all of Your obligations to each customer for which You submit a transaction and will resolve any customer dispute or complaint directly with the purchaser; (x) except in the ordinary course of business, no sales transaction submitted by You through the Services will represent a sale to any principal, partner, proprietor, or owner of Your entity or any of Your other Affiliates; (xi) You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (xii) Your use of the Services will be in compliance with this Agreement; and (xiii) You agree to follow the applicable Card brand operating Rules and regulations.
- Individual or Non-Corporate Customers. If You are an individual or other non-corporate entity not covered by Section H.3(a) above, You represent that: (i) You are at least eighteen (18) years of age if an individual, or if an entity, all persons acting on Your behalf are at least eighteen (18) years of age; (ii) You are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (iii) the name You provided when You registered is Your name or business name under which You sell goods and services; (iv) each sales transaction submitted by You will represent a bona fide sale You made; (v) any sales transactions submitted by You will accurately describe the goods and/or services sold and delivered to a purchaser; (vi) You will fulfill all of Your obligations to each customer for which You submit a transaction and will resolve any customer dispute or complaint directly with the purchaser; (vii) You and all transactions initiated by You will comply with all federal, state, and local laws, rules, and regulations applicable to You and/or Your business, including any applicable tax laws and regulations; (viii) except in the ordinary course of business, no sales transaction submitted by You through the Services will represent a sale to any principal, partner, proprietor, or owner of Your entity or any of Your other Affiliates; (ix) You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (x) Your use of the Services will be in compliance with this Agreement; and (xi) You agree to follow the applicable Card Issuer operating Rules and regulations.
Indemnifications
Mutual Indemnifications. Either party to this Agreement (You, on the one hand, and SwervePay, on the other hand) will defend, indemnify, save and hold harmless the other party and the officers, directors, agents, Affiliates, distributors, franchisees and employees of the other party from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from the indemnifying party’s material breach of any duty, representation or warranty of any Customer Agreement or these TOS, as amended. An “Indemnified Party” party’s right to indemnification is conditioned upon the following: prompt written notice to the party obligated to provide indemnification (“Indemnifying Party”) of any claim, action or demand for which indemnity is sought; control of the investigation, preparation, defense and settlement thereof by the Indemnifying Party; and such reasonable cooperation by the indemnified part, at the Indemnifying Party’s request and expense, in the defense of the claim. The Indemnified Party shall have the right to participate in the defense of a claim by the indemnifying party with counsel of the Indemnified Party’s choice at the Indemnified Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry of any judgment that makes any admissions in the Indemnified Party’s name or imposes any liability upon the Indemnified Party.
Customer agrees not to use the Services in violation of any local, state or Federal laws, rules or regulations, or orders, including, but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”) and its related July 10, 2015 Omnibus Ruling, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its related Rules and Regulations, and agrees to indemnify, defend and hold SwervePay and any Affiliated Entity harmless from and against all Losses (defined below) that are incurred, suffered or paid, directly or indirectly, by any of them in connection with, arising out of or resulting from any claim alleging improper or illegal use of any of the Products and Services provided to Customer or any of Customer’s clients by SwervePay or any Affiliated Entity, including but not limited to any claims arising from following the direction of Customer for communications to its clients as to frequency of sending messages by any medium, including but not limited to text, e-mail, facsimile or paper regarding any matter, including but not limited to past due sums, deposits for anticipated procedures, estimates of cost of procedures, appointment reminders, payment receipts or other communications. For purposes of this Section, indemnification of SwervePay and any Affiliated Entity includes, but is not limited to payment by Customer of any judgment, settlement, claim, penalties and costs, interest, reasonable attorneys’ fees and cost of defense, if SwervePay or any Affiliated Entity is named as a party to any action or suit related to delivery of communications to a Customer client or otherwise subject to this indemnification. In such an event, SwervePay and any Affiliated Entity shall have the option at any time of either being defended by Customer’s counsel or providing their own defense to the action (subject to regular monthly reimbursement from Customer for costs and fees incurred, regardless of the outcome of such action). For purposes of this Section: (i) “Losses” means any and all losses, liabilities, damages, penalties, obligations, awards, fines, deficiencies, demands, interest, costs and expenses (including reasonable attorneys’ fees, consultants’ fees and other professional fees and disbursements); and (ii) “Affiliated Entity” shall mean any “affiliate” of SwervePay (as such term is construed under Rule 405 promulgated under the Securities Act of 1933), as well as, without limitation, any independent contractor, business partner, solution extender, or service provider under contract with SwervePay that assists SwervePay in delivering any of the Services provided by SwervePay or any Affiliated Entity to Customer.
Term and Termination
Term; Renewal. These TOS and each applicable Customer Agreement shall become effective upon the later of (i) the date Customer accepts these TOS in writing via Customer Agreement (the “Effective Date”), or (ii) the date You use any of the Services, if different; and will continue for a period of one (1) year, unless terminated earlier or suspended according to the provisions of these TOS and the applicable Customer Agreement(s). Each Customer Agreement will thereafter automatically renew for successive twelve (12) month terms, unless either party gives the other party written or electronic notice, in accordance with the terms herein, of its intention not to renew the applicable Customer Agreement, at least thirty (30) days prior to the end of the then-current term or renewal term, unless termination is by SwervePay. Any renewal of Your Services is subject to our then-current terms and conditions, successful completion of any applicable authentication procedure, if any, and payment of all applicable Fees owing to us at the time of renewal. Additional payment terms may apply to the SwervePay Services You purchase, as set forth herein and in the applicable Schedules to this Agreement or any applicable Customer Agreement.
Suspension and Termination. Either party hereto may, at its option, and without notice, terminate the Services, effective immediately, should the other party hereto (i) admit in writing its inability to pay its debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (v) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (vi) have a decree entered against it by a court of competent jurisdiction appointing a receiver liquidate, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs.
- By Customer. Unless otherwise provided in a Customer Agreement, You may terminate the Services and any Customer Agreement upon prior thirty (30) days’ written notice to SwervePay by notifying SwervePay’s customer support electronically or in writing and following the instructions for cancellation either (i) prior to the end of the initial annual period or any annual renewal period; or (ii) for convenience. Subject to the above, SwervePay shall use commercially reasonable efforts to cancel the Services within seven (7) business days following such written notice from Customer. Customer shall be responsible for the payment of all fees due and payable through the effective date of termination. Termination requests for non-SwervePay, third-party services may not be made through SwervePay. Customer must instead contact such third-parties directly to cancel such services.
- By SwervePay. Notwithstanding the foregoing, SwervePay may suspend Customer’s access to the Services or terminate this Agreement as follows:
- Following ten (10) days’ prior electronic or written notice (such as an overdue invoice) if (a) Customer breaches the Agreement, (b) perpetrates fraud, (c) causes or fails to fix a security breach relating to the Services, (d) fails to comply with SwervePay’s best practices requirements for security management or to respond to an inquiry from SwervePay, concerning the accuracy or completeness of the information Customer is required to provide pursuant to this Agreement, (e) if SwervePay reasonably suspects fraudulent activity on Customer’s payment services account, (if such breach is not cured within such ten (10)-day period), (f) in the event that certain third-party licenses or access to third-party components of the Services are terminated, or (g) non-payment of invoice; or
- Immediately, without prior notice, if we reasonably believe: (a) Your breach compromises the security of the Services in any material fashion, (b) fraudulent Transactions are occurring on Your account, (c) Customer’s financial processor or Financial Institution with which Customer has a merchant account requires such termination or suspension or where continued breach of its Rules or contractual terms creates a risk of termination of such merchant account or of such entity doing business with SwervePay; or (d) You or a Transaction violates our Acceptable Use Policy or Rules.
Termination Date. The date upon which termination is effective shall be the “Termination Date.”
Effect of Termination.
- Cessation. SwervePay will cease providing the Services and cease charging Your Payment Method, if applicable, for any monthly, annual or bi-annual Service fees as of the expiration of the annual, bi-annual or monthly billing cycle in which the termination is effective. If termination is due to Your default hereunder, You shall bear all costs of such termination, including any reasonable costs SwervePay incurs in closing Your account and applicable termination Fees. You agree to pay any and all costs incurred by SwervePay in enforcing Your compliance with this Section. Upon termination, Your rights to use the Services, and any other rights granted hereunder, shall immediately cease, and You shall destroy any copy of the materials licensed to You hereunder and referenced herein except for such copies that are in electronic format and cannot be readily destroyed without undue cost or effort, which copies may be retained only for archival purposes and not for commercial use. Each party will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except that any termination of this Agreement will not relieve SwervePay or Customer from any liability or obligations arising prior to the Termination Date, which shall survive any termination of this Agreement. To the extent permitted by applicable law, You agree that upon termination for any reason, we may delete all information relating to Your use of the Service. Notwithstanding the foregoing, Your obligations to pay all fees due through the Termination Date and terms relating to covenants, indemnity, warranties or terms which by their nature are required to survive contract termination will survive any termination of this Agreement.
- Bundled Services. In addition to the terms set forth above, if You purchase Services which are sold together as part of a “bundled” package of services, any termination relating to such bundle will terminate all SwervePay Services included in such bundle. In such cases we may, in our sole discretion and subject to Your agreeing to be bound by the applicable agreement(s) and to pay the applicable fees, allow You to convert certain Services included in the bundled services to stand-alone Services. Notwithstanding the above, termination of the Services will terminate any add-on services. [What does this mean?]
- Reinstatement of Services. If Services are suspended or terminated by SwervePay due to lack of payment by Customer, reinstatement of Services shall be subject to Customer paying SwervePay (i) new set-up fees, at SwervePay’s then-current rates; and (ii) as applicable, all past due annual or monthly fees and Transaction Fees and all interest thereon at the Agreement Interest Rate (unless waived by SwervePay).
- Data Portability. After the Termination Date, SwervePay, upon written request from You, may, at it its option and only if practicable, provide Your new acquiring bank or payment service provider (“Data Recipient”), as applicable, with any available credit card information relating to Your Customers, subject to the following conditions: (i) You must provide us with proof that the Data Recipient is in compliance with the PCI-DSS requirements (level 1 PCI compliant) by giving us a certificate or report on compliance with the Association PCI-DSS requirements from a qualified provider and any other information reasonably requested by us; (ii) the transfer of such information is compliant with the latest version of the PCI-DSS requirements; and (iii) the transfer of such information is allowed under the applicable Card Issuer Rules, and any applicable laws, rules or regulations. You shall indemnify, defend, and hold harmless SwervePay from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorney’s fees) we suffer or incur arising out of or in connection with the transfer of any data to a Data Recipient.
Confidentiality
- Confidential Information. “Confidential Information” means any confidential, trade secret or proprietary information (which may be business, financial or technical information) disclosed by one party to the other under this Agreement that is marked confidential or if disclosed orally designated as confidential at the time of disclosure or that should be reasonably understood to be confidential. All source code and the terms of any Customer Agreement will be considered Confidential Information.
- Confidentiality Obligations. Each party (i) shall not disclose to any third-party or use any Confidential Information disclosed to it by the other except as expressly permitted by these TOS or a Customer Agreement and for purposes of performing the Services, and (ii) shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance. Each party further agrees to use the other party’s Confidential Information only for the purpose of its performance of the Services. In addition, the receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects which embody Confidential Information and which are provided to the receiving party hereunder.
- Limitation of Confidentiality. The confidentiality obligations set forth in this Section (“Confidentiality Obligations”) above do not apply to information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information, (iv) is disclosed with the written approval of the disclosing party, or (v) is disclosed five (5) years from the effective date of termination or expiration of this Agreement.
- Exceptions to Confidentiality. Notwithstanding the Confidentiality Obligations set forth above, each party may disclose Confidential Information of the other party (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or (ii) on a “need-to-know” basis under an obligation of confidentiality substantially similar in all material respects to the Confidentiality Obligations to its legal counsel, accountants, contractors, consultants, banks and other current or potential financing sources (including investors).
Miscellaneous
- Third-Party Services. You may be made aware of services, products, offers and promotions provided by third-parties, and not by SwervePay (“Third-Party Services”). If You elect to use Third-Party Services, You are solely responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing any Third-Party Services. You authorize us to use and disclose Your contact information, including name and address, for the purpose of making the Third-Party Services You select available to You. You agree that the third-party is solely responsible for the performance of the Third-Party Services.
- Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder, except for Customer’s payment obligations hereunder, due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this Section shall give the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof, and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided, however, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, either party may immediately terminate the Agreement.
- Entire Agreement and Modification. Except for a valid Customer Agreement or any other written agreement signed by both of us, the terms in this Agreement constitute the entire agreement between SwervePay and You regarding its subject matter and its terms supersede any prior or simultaneous agreement, terms, negotiations, whether written or oral, or whether established by custom, practice, policy or precedent, between the parties hereto. Except as otherwise provided for herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties herein. You acknowledge and agree that in the event a purchase order (“PO”) contains additional terms, provisions or language (“PO Terms”), those PO Terms shall be null and void unless accepted in writing by SwervePay pursuant to a Customer Agreement.
- Severability. In the event that any provision of these TOS or a Customer Agreement is unenforceable or invalid such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
- No Assignment. Customer may not assign any rights or obligations under these TOS, to the Services, or any Customer Agreement without the prior written consent of SwervePay. SwervePay may assign its rights, obligations or duties regarding the Services, these TOS or any Customer Agreement upon prior written notice to You.
- Governing Law and Jurisdiction. These TOS, the Services and each Customer Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without reference to its conflicts of laws principles. Each party consents to the exclusive venue and jurisdiction of the competent state and/or federal courts in Chicago, Illinois, for any dispute arising out of or related to this Agreement, with venue to be laid in the appropriate courthouse in Chicago, Illinois. The parties acknowledge and agree that this Agreement is made and performed in Chicago, Illinois. THE PARTIES HEREBY WAIVE ANY RIGHT TO JURY TRIAL WITH RESPECT TO ANY ACTION BROUGHT IN CONNECTION WITH THIS AGREEMENT. For avoidance of doubt, the application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
- Export Restrictions. You acknowledge and agree that You shall not import, export, or re-export directly or indirectly, any commodity, including Your products incorporating or using any SwervePay products or Services in violation of the laws and regulations of any applicable jurisdiction. The Services are subject to the U.S. export controls regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII). You will not export or re-export the Services, or portion thereof, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end user, or to any end user who You know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons.
- Notices. Except as otherwise expressly stated in this Agreement, all notices to SwervePay shall be in writing and delivered, via courier, commercial carrier or certified or registered mail (in each case with delivery confirmation), to SwervePay at its official corporate address, or via email (with proof of transmission) to the authorized representative identified in the applicable Customer Agreement. All notices to You shall be delivered to Your mailing address or e-mail address as provided by You in Your account information, as updated by You pursuant these TOS. Unless You choose to opt-out of receiving marketing notices, You authorize SwervePay to notify You as our customer, via commercial e-mails, telephone calls and other means of communication, of information that we deem is of potential interest to You, including without limitation communications describing upgrades, new products and services or other information pertaining to the Services or other SwervePay offerings relating to Internet security or to payment services. Notwithstanding the above, You shall not have the right to opt-out of service or support notices relating to the Services, including without limitation, notices of service modifications, security, performance issues or technical difficulties.
- Headings. The section headings appearing in these TOS or any Customer Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
- Independent Contractors. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
- Non-Disparagement; Publicity. In consideration of the Services and payments received therefor, neither party will disparage the other party or the other party’s trademarks, websites, products or services, or display any such items in a derogatory or negative manner on any website or in any public forum or press release. Unless otherwise stated herein, You shall not issue a press release or otherwise advertise, make a public statement or disclose to any third-party information pertaining to the parties’ relationship, the existence or terms of these TOS or any Customer Agreement, the Services and any underlying transactions between SwervePay and You, or referring to the other party in relation to Services without the SwervePay’s prior written approval.
- Costs, Legal Expenses. Except as expressly stated in a Customer Agreement, each party shall be solely responsible for the costs and expenses of performing its obligations hereunder. In the event of a dispute arising from or related to the Services, these TOS or a Customer Agreement, which results in litigation or any other proceeding (“Litigation”) the prevailing party in such Litigation shall recover from the other its costs, expenses and reasonable attorney’s fees in connection with such litigation or other proceeding.
Schedule A - Pricing: P2P
Effective August 30, 2022
DownloadTable of Contents
Schedule A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: SwervePay Health Pro Software & Merchant Services | 2.74% 3.30% $0.25 $25.00 | Swipe Transactions Non-Swipe Transactions Per Transaction PCI Non-Compliance Fee Per Non-Compliant Month. Finvi Payments may terminate if Client fails to maintain PCI Compliance. |
Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
Setup / Training | $149.00 | Waived |
{{{Business_Legal_Name}}}
{{{Business_Contact_Name}}}
Effective August 30, 2022 to August 30, 2022
DownloadTable of Contents
Schedule A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: SwervePay Health Pro Software & Merchant Services | 2.74% 3.30% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
Setup / Training | $149.00 | Waived |
{{{Business_Legal_Name}}}
{{{Business_Contact_Name}}}
Effective October 25, 2021 to August 30, 2022
DownloadTable of Contents
Schedule A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: SwervePay Health Pro Software & Merchant Services | 2.69% 3.25% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
Setup / Training | $149.00 | Waived |
{{{Business_Legal_Name}}}
{{{Business_Contact_Name}}}
Effective January 30, 2018 to October 25, 2021
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: SwervePay Health Pro Software & Merchant Services | 2.69% 3.25% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
Setup / Training | $149.00 | Waived |
Effective November 21, 2017 to January 30, 2018
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: SwervePay Health Pro Software & Merchant Services | 2.69% 3.25% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
Setup / Training | $149.00 | Waived |
Effective November 21, 2017 to November 21, 2017
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: SwervePay Health Pro Software & Merchant Services | 2.69% 3.25% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
Setup / Training | $149.00 | Waived |
General BAA - Customers
Effective June 16, 2020
DownloadTable of Contents
Business Associate Agreement
This Business Associate Agreement (“Agreement”) is entered into {{{Todays_Date}}} (“Effective Date”) between the customer executing this Agreement below (“CUSTOMER”, for itself and its parents, subsidiaries, affiliates, officers, agents, directors, employees and assigns; and also potentially a Covered Entity) and SWERVEPAY LLC, a Delaware limited liability company, including its parents, subsidiaries, affiliates, officers, agents, directors, employees and assigns (collectively and each a “Business Associate”).
1. DEFINITIONS
Capitalized terms used, but not otherwise defined in this Agreement, shall have the same meanings given to them under 45 CFR Parts 160 and Subparts A and E of 164 (“Privacy Rule”) and 45 CFR Part 164 Subpart D ("Breach Notification Rule") . Unless expressly stated otherwise, “PHI” (Protected Health Information) shall include electronic PHI (“EPHI”) throughout this Agreement.
2. PURPOSE FOR WHICH BUSINESS ASSOCIATE MAY USE OR DISCLOSE PHI
Except as otherwise limited by this Agreement, Business Associate may Use or make Disclosure of PHI provided or made available from CUSTOMER, or created on behalf of CUSTOMER, solely to perform any function, activity, or service for, or on behalf of, CUSTOMER pursuant to the parties’ written agreements, (“Customer Agreement(s)”) as amended from time to time—as long as such Use or Disclosure would not violate the Privacy Rule or the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) if Used or Disclosed by CUSTOMER or the minimum necessary policies and procedures of CUSTOMER.
3. BUSINESS ASSOCIATE OBLIGATIONS
Business Associate shall:
- Not Use or make Disclosure of PHI other than as permitted or required by this Agreement or as Required by Law. As required by § 164.502(b), when Using or Disclosing PHI, or requesting PHI from CUSTOMER, Business Associate shall make best efforts to limit the PHI to the minimum necessary to accomplish the intended purpose of the Use, Disclosure, or request.
- Establish, maintain, and use reasonable and appropriate safeguards to prevent Use or Disclosure of PHI, other than as permitted under this Agreement.
- Maintain privacy and security policies that comply with all applicable laws and regulations. CUSTOMER may request a copy of Business Associate’s privacy and security policies.
- Mitigate, to the extent reasonable, any harmful effect that is known to Business Associate of a Use or Disclosure of PHI by Business Associate in violation of the requirements of this Agreement.
- In accordance with § 164.410(a), report to CUSTOMER any Use or Disclosure of PHI of which Business Associate becomes aware that is not provided for, or allowed by, this Agreement , whether or not the Use or Disclosure arises to the level of a Breach under HIPAA. Business Associate shall send a report to CUSTOMER within five calendar days of becoming aware of such unauthorized Use or Disclosure. Such report shall include the following, to the extent available to Business Associate, and any other items Required By Law:
- The identification of each individual whose unsecured PHI has been, or is reasonably believed to have been, accessed, acquired, Used or Disclosed.
- A description of what happened.
- A description of the types of unsecured PHI that were involved in the unauthorized Use or Disclosure (e.g. name, social security number, date of birth, CPT, diagnosis, etc.)
- Recommended steps Individuals should take to protect themselves from harm resulting from the Breach.
- A description of what is being done to investigate the Breach, to mitigate harm to Individuals, and to protect against further Breaches.
- Contact information for Individuals to obtain additional information.
- Business Associate shall cooperate with CUSTOMER in the investigation of a suspected breach and shall provide a final investigation report at the completion of its investigation, which investigation shall not exceed 30 days) In the event the unauthorized Use or Disclosure constitutes a Breach of Unsecured Protected Health Information, Business Associate shall, upon Customer's request, coordinate with CUSTOMER in the preparation of any notifications to patients or government agencies Required by Law, and shall allow CUSTOMER to provide such notice if CUSTOMER determines it is in the best interests of its patients for CUSTOMER to send such notice, insofar as allowed by law.
- In accordance with §§ 164.502(e)(1)(ii) and 164.308(b)(1), ensure that any of Business Associate’s agents, including Subcontractors that create, receive, maintain, or transmit PHI on behalf of CUSTOMER, agree in writing to the same restrictions and conditions that apply through this Agreement to Business Associate with respect to such PHI.
- At CUSTOMER’s request, provide prompt access to PHI to CUSTOMER in order for Customer to meet its requirements under 45 CFR § 164.524.
- Make any amendment(s) to PHI in a Designated Record Set that CUSTOMER directs or agrees to pursuant to 45 CFR § 164.526, in the time and manner that CUSTOMER directs. Business Associate will not respond directly to an Individual’s request for an amendment of their PHI but will refer the Individual to CUSTOMER so it can coordinate and prepare a timely response to the Individual.
- Promptly make available to the Secretary of the U.S. Department of Health and Human Services all internal practices, books and records relating to the Use or Disclosure of PHI received from CUSTOMER, or created by Business Associate on behalf of CUSTOMER, for purposes of determining CUSTOMER’s compliance with the Privacy Rule. Business Associate shall promptly notify CUSTOMER of Business Associate’s receipt of such request by the Secretary.
- Document such Disclosures of PHI and information related to such Disclosures as would be required for CUSTOMER to respond to a request by an Individual for an accounting of Disclosures of PHI in accordance with 45 CFR § 164.528.
- Promptly provide CUSTOMER with information collected in accordance with Section (k) above, to permit CUSTOMER to respond to a request by an Individual for an accounting of Disclosures of PHI in accordance with 45 CFR § 164.528. Business Associate will refer any Individual’s request for an accounting to CUSTOMER.
- To the extent Business Associate conducts Standard Transactions with, or on behalf of, CUSTOMER, comply with each applicable requirement of 45 CFR Part 162, and require the same of any subcontractor or agent involved with the conduct of such Standard Transactions.
- Comply with any agreement CUSTOMER may make to restrict Use or Disclosure of PHI pursuant to 45 CFR § 164.522 provided that CUSTOMER notifies Business Associate in writing of any such restriction.
- To the extent Business Associate is delegated to perform any of CUSTOMER’s obligations under Subpart E of 45 CFR Part 164, Business Associate shall comply with the all requirements that apply to CUSTOMER under Subpart E in the performance of such obligations.
- Business Associate shall abide by all applicable requirements for business associates set forth the HITECH Act, which was adopted as part of the American Recovery and Reinvestment Act of 2009, and its implementing regulations, and which makes business associates directly liable for compliance with many of the same requirements as CUSTOMER under both the Privacy Rule and the Security Rule. Accordingly, Business Associate shall, among other things, implement adequate policies, procedures, and practices to prevent, detect, evaluate, report, and mitigate breaches of PHI; and perform regular risk analyses.
4. PERMITTED USE AND DISCLOSURE BY BUSINESS ASSOCIATE
Business Associate may:
- Disclose PHI in its possession to third parties for Business Associate’s proper management and administration, or to fulfill any of its legal responsibilities, provided that (i) the Disclosures are Required By Law, or (ii) Business Associate has received reasonable assurances evidenced by written contract from the third party that the PHI will be held confidentially, and Used or further Disclosed only as Required By Law or for the purpose for which it was Disclosed to the third party, and that the third party will notify Business Associate (who will in turn promptly notify CUSTOMER) of any instances of which it is aware in which the confidentiality of the PHI has been breached. Use or Disclosure to third parties shall be the minimum necessary to perform or fulfill the specific function required.
- Use PHI in its possession to provide Data Aggregation services to CUSTOMER as permitted by 45 CFR § 164.504(e)(2)(i)(B), if CUSTOMER directs such services.
5. OBLIGATIONS OF CUSTOMER
- CUSTOMER shall notify Business Associate of any limitation(s) in its Notice of Privacy Practices of CUSTOMER in accordance with 45 CFR § 164.520, to the extent that such limitation may affect Business Associate's Use or Disclosure of PHI.
- CUSTOMER shall notify Business Associate of any changes in, or revocation of, permission by Individual to Use or Disclose PHI, to the extent that such changes may affect Business Associate's Use or Disclosure of PHI.
- CUSTOMER shall notify Business Associate of any restriction to the use or disclosure of PHI that CUSTOMER has agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of PHI.
- CUSTOMER shall not request Business Associate to Use or Disclose PHI in any manner that would not be permissible under the Privacy Rule if done by CUSTOMER, unless such Use or Disclosure is necessary for the purposes of Data Aggregation or management and administrative activities of Business Associate under this Agreement.
6. TERMINATION
- The term of this Agreement shall be effective as of the Effective Date, and shall terminate when all of the PHI provided by CUSTOMER to Business Associate, or created or received by Business Associate on CUSTOMER’s behalf, is destroyed or returned to CUSTOMER. If it is infeasible to return or destroy PHI, Business Associate shall protect that information as provided in Section 7 below.
- Upon a party’s knowledge of a material breach of the terms of this Agreement by the other party, the non-breaching party shall, in accordance with the notification requirement set forth in the Customer Agreement(s), provide an opportunity for the party in breach to cure the breach or end the violation. The non-breaching party may terminate this Agreement if the party in breach does not cure the breach or end the violation within the cure period set forth in the Customer Agreement(s). If there is no cure period in the Customer Agreement(s) for material breaches, the non-breaching party may provide the party in breach with a cure period or terminate the Customer Agreement(s) immediately, at its option.
7. RETURN OR DESTRUCTION OF PHI
- Upon termination of this Agreement for any reason, Business Associate shall, within thirty (30) days of termination, return to CUSTOMER any and all PHI Business Associate or its subcontractors or agents received from CUSTOMER, or from another party on behalf of CUSTOMER, or was created by Business Associate or its Subcontractors or agents on behalf of CUSTOMER that is maintained by Business Associate or its Subcontractors or agents in any form whatsoever, including any copies or replicas. If returning the PHI to CUSTOMER is not feasible for Business Associate, Business Associate shall destroy any and all PHI maintained by it or its subcontractors or agents in any form whatsoever, including any copies or replicas. . It shall destroy PHI to the destruction standards required by the Health Resources and Services Administration and notify CUSTOMER of destruction. Should the return or destruction of the PHI be determined by Business Associate to be not feasible, Business Associate shall provide to CUSTOMER notification of the conditions that make return or destruction infeasible within thirty days of termination. Business Associate shall extend the protections of this Agreement to such PHI and limit further Uses and Disclosures to those purposes that make the return or destruction infeasible, for so long as the Business Associate maintains such PHI. Similarly, Business Associate shall require its subcontractors or agents to agree to extend the same protections to PHI and similarly limit its Use or Disclosure. This provision shall survive the termination of this Agreement.
8. MISCELLANEOUS
- The parties recognize that HIPAA laws and regulations may change over time; therefore, the parties agree that this Agreement will be automatically amended from time to time to incorporate applicable future amendments to the Privacy Rule and HIPAA that affect the obligations of the parties.
- CUSTOMER is the exclusive owner of PHI generated or used under this Agreement.
- Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than CUSTOMER, Business Associate and their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever.
- Any ambiguity in this Agreement shall be resolved to permit CUSTOMER to comply with the Privacy Rule.
- This Agreement may be executed in counterparts. A facsimile or electronic signature shall be deemed the original signature.
- Notices should be sent to the addresses on the signature page, with copies to the email addresses listed, unless otherwise amended or changed in writing pursuant to this Agreement.
Date: {{{Todays_Date}}} |
By: {{{Customer_Legal_Name}}} |
Name: {{{Customer_Signor}}} |
Title: {{{Customer_Signor_Title}}} |
Address: {{{Customer_Street_Address}}} |
{{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 12, 2020 to June 16, 2020
DownloadTable of Contents
Business Associate Agreement
This Business Associate Agreement (“Agreement”) is entered into {{{Todays_Date}}} (“Effective Date”) between the customer executing this Agreement below (“CUSTOMER”, for itself and its parents, subsidiaries, affiliates, officers, agents, directors, employees and assigns; and also potentially a Covered Entity) and SWERVEPAY LLC, an Illinois limited liability company, including its parents, subsidiaries, affiliates, officers, agents, directors, employees and assigns (collectively and each a “Business Associate”).
1. DEFINITIONS
Capitalized terms used, but not otherwise defined in this Agreement, shall have the same meanings given to them under 45 CFR Parts 160 and Subparts A and E of 164 (“Privacy Rule”) and 45 CFR Part 164 Subpart D ("Breach Notification Rule") . Unless expressly stated otherwise, “PHI” (Protected Health Information) shall include electronic PHI (“EPHI”) throughout this Agreement.
2. PURPOSE FOR WHICH BUSINESS ASSOCIATE MAY USE OR DISCLOSE PHI
Except as otherwise limited by this Agreement, Business Associate may Use or make Disclosure of PHI provided or made available from CUSTOMER, or created on behalf of CUSTOMER, solely to perform any function, activity, or service for, or on behalf of, CUSTOMER pursuant to the parties’ written agreements, (“Customer Agreement(s)”) as amended from time to time—as long as such Use or Disclosure would not violate the Privacy Rule or the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) if Used or Disclosed by CUSTOMER or the minimum necessary policies and procedures of CUSTOMER.
3. BUSINESS ASSOCIATE OBLIGATIONS
Business Associate shall:
- Not Use or make Disclosure of PHI other than as permitted or required by this Agreement or as Required by Law. As required by § 164.502(b), when Using or Disclosing PHI, or requesting PHI from CUSTOMER, Business Associate shall make best efforts to limit the PHI to the minimum necessary to accomplish the intended purpose of the Use, Disclosure, or request.
- Establish, maintain, and use reasonable and appropriate safeguards to prevent Use or Disclosure of PHI, other than as permitted under this Agreement.
- Maintain privacy and security policies that comply with all applicable laws and regulations. CUSTOMER may request a copy of Business Associate’s privacy and security policies.
- Mitigate, to the extent reasonable, any harmful effect that is known to Business Associate of a Use or Disclosure of PHI by Business Associate in violation of the requirements of this Agreement.
- In accordance with § 164.410(a), report to CUSTOMER any Use or Disclosure of PHI of which Business Associate becomes aware that is not provided for, or allowed by, this Agreement , whether or not the Use or Disclosure arises to the level of a Breach under HIPAA. Business Associate shall send a report to CUSTOMER within five calendar days of becoming aware of such unauthorized Use or Disclosure. Such report shall include the following, to the extent available to Business Associate, and any other items Required By Law:
- The identification of each individual whose unsecured PHI has been, or is reasonably believed to have been, accessed, acquired, Used or Disclosed.
- A description of what happened.
- A description of the types of unsecured PHI that were involved in the unauthorized Use or Disclosure (e.g. name, social security number, date of birth, CPT, diagnosis, etc.)
- Recommended steps Individuals should take to protect themselves from harm resulting from the Breach.
- A description of what is being done to investigate the Breach, to mitigate harm to Individuals, and to protect against further Breaches.
- Contact information for Individuals to obtain additional information.
- Business Associate shall cooperate with CUSTOMER in the investigation of a suspected breach and shall provide a final investigation report at the completion of its investigation, which investigation shall not exceed 30 days) In the event the unauthorized Use or Disclosure constitutes a Breach of Unsecured Protected Health Information, Business Associate shall, upon Customer's request, coordinate with CUSTOMER in the preparation of any notifications to patients or government agencies Required by Law, and shall allow CUSTOMER to provide such notice if CUSTOMER determines it is in the best interests of its patients for CUSTOMER to send such notice, insofar as allowed by law.
- In accordance with §§ 164.502(e)(1)(ii) and 164.308(b)(1), ensure that any of Business Associate’s agents, including Subcontractors that create, receive, maintain, or transmit PHI on behalf of CUSTOMER, agree in writing to the same restrictions and conditions that apply through this Agreement to Business Associate with respect to such PHI.
- At CUSTOMER’s request, provide prompt access to PHI to CUSTOMER in order for Customer to meet its requirements under 45 CFR § 164.524.
- Make any amendment(s) to PHI in a Designated Record Set that CUSTOMER directs or agrees to pursuant to 45 CFR § 164.526, in the time and manner that CUSTOMER directs. Business Associate will not respond directly to an Individual’s request for an amendment of their PHI but will refer the Individual to CUSTOMER so it can coordinate and prepare a timely response to the Individual.
- Promptly make available to the Secretary of the U.S. Department of Health and Human Services all internal practices, books and records relating to the Use or Disclosure of PHI received from CUSTOMER, or created by Business Associate on behalf of CUSTOMER, for purposes of determining CUSTOMER’s compliance with the Privacy Rule. Business Associate shall promptly notify CUSTOMER of Business Associate’s receipt of such request by the Secretary.
- Document such Disclosures of PHI and information related to such Disclosures as would be required for CUSTOMER to respond to a request by an Individual for an accounting of Disclosures of PHI in accordance with 45 CFR § 164.528.
- Promptly provide CUSTOMER with information collected in accordance with Section (k) above, to permit CUSTOMER to respond to a request by an Individual for an accounting of Disclosures of PHI in accordance with 45 CFR § 164.528. Business Associate will refer any Individual’s request for an accounting to CUSTOMER.
- To the extent Business Associate conducts Standard Transactions with, or on behalf of, CUSTOMER, comply with each applicable requirement of 45 CFR Part 162, and require the same of any subcontractor or agent involved with the conduct of such Standard Transactions.
- Comply with any agreement CUSTOMER may make to restrict Use or Disclosure of PHI pursuant to 45 CFR § 164.522 provided that CUSTOMER notifies Business Associate in writing of any such restriction.
- To the extent Business Associate is delegated to perform any of CUSTOMER’s obligations under Subpart E of 45 CFR Part 164, Business Associate shall comply with the all requirements that apply to CUSTOMER under Subpart E in the performance of such obligations.
- Business Associate shall abide by all applicable requirements for business associates set forth the HITECH Act, which was adopted as part of the American Recovery and Reinvestment Act of 2009, and its implementing regulations, and which makes business associates directly liable for compliance with many of the same requirements as CUSTOMER under both the Privacy Rule and the Security Rule. Accordingly, Business Associate shall, among other things, implement adequate policies, procedures, and practices to prevent, detect, evaluate, report, and mitigate breaches of PHI; and perform regular risk analyses.
4. PERMITTED USE AND DISCLOSURE BY BUSINESS ASSOCIATE
Business Associate may:
- Disclose PHI in its possession to third parties for Business Associate’s proper management and administration, or to fulfill any of its legal responsibilities, provided that (i) the Disclosures are Required By Law, or (ii) Business Associate has received reasonable assurances evidenced by written contract from the third party that the PHI will be held confidentially, and Used or further Disclosed only as Required By Law or for the purpose for which it was Disclosed to the third party, and that the third party will notify Business Associate (who will in turn promptly notify CUSTOMER) of any instances of which it is aware in which the confidentiality of the PHI has been breached. Use or Disclosure to third parties shall be the minimum necessary to perform or fulfill the specific function required.
- Use PHI in its possession to provide Data Aggregation services to CUSTOMER as permitted by 45 CFR § 164.504(e)(2)(i)(B), if CUSTOMER directs such services.
5. OBLIGATIONS OF CUSTOMER
- CUSTOMER shall notify Business Associate of any limitation(s) in its Notice of Privacy Practices of CUSTOMER in accordance with 45 CFR § 164.520, to the extent that such limitation may affect Business Associate's Use or Disclosure of PHI.
- CUSTOMER shall notify Business Associate of any changes in, or revocation of, permission by Individual to Use or Disclose PHI, to the extent that such changes may affect Business Associate's Use or Disclosure of PHI.
- CUSTOMER shall notify Business Associate of any restriction to the use or disclosure of PHI that CUSTOMER has agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of PHI.
- CUSTOMER shall not request Business Associate to Use or Disclose PHI in any manner that would not be permissible under the Privacy Rule if done by CUSTOMER, unless such Use or Disclosure is necessary for the purposes of Data Aggregation or management and administrative activities of Business Associate under this Agreement.
6. TERMINATION
- The term of this Agreement shall be effective as of the Effective Date, and shall terminate when all of the PHI provided by CUSTOMER to Business Associate, or created or received by Business Associate on CUSTOMER’s behalf, is destroyed or returned to CUSTOMER. If it is infeasible to return or destroy PHI, Business Associate shall protect that information as provided in Section 7 below.
- Upon a party’s knowledge of a material breach of the terms of this Agreement by the other party, the non-breaching party shall, in accordance with the notification requirement set forth in the Customer Agreement(s), provide an opportunity for the party in breach to cure the breach or end the violation. The non-breaching party may terminate this Agreement if the party in breach does not cure the breach or end the violation within the cure period set forth in the Customer Agreement(s). If there is no cure period in the Customer Agreement(s) for material breaches, the non-breaching party may provide the party in breach with a cure period or terminate the Customer Agreement(s) immediately, at its option.
7. RETURN OR DESTRUCTION OF PHI
- Upon termination of this Agreement for any reason, Business Associate shall, within thirty (30) days of termination, return to CUSTOMER any and all PHI Business Associate or its subcontractors or agents received from CUSTOMER, or from another party on behalf of CUSTOMER, or was created by Business Associate or its Subcontractors or agents on behalf of CUSTOMER that is maintained by Business Associate or its Subcontractors or agents in any form whatsoever, including any copies or replicas. If returning the PHI to CUSTOMER is not feasible for Business Associate, Business Associate shall destroy any and all PHI maintained by it or its subcontractors or agents in any form whatsoever, including any copies or replicas. . It shall destroy PHI to the destruction standards required by the Health Resources and Services Administration and notify CUSTOMER of destruction. Should the return or destruction of the PHI be determined by Business Associate to be not feasible, Business Associate shall provide to CUSTOMER notification of the conditions that make return or destruction infeasible within thirty days of termination. Business Associate shall extend the protections of this Agreement to such PHI and limit further Uses and Disclosures to those purposes that make the return or destruction infeasible, for so long as the Business Associate maintains such PHI. Similarly, Business Associate shall require its subcontractors or agents to agree to extend the same protections to PHI and similarly limit its Use or Disclosure. This provision shall survive the termination of this Agreement.
8. MISCELLANEOUS
- The parties recognize that HIPAA laws and regulations may change over time; therefore, the parties agree that this Agreement will be automatically amended from time to time to incorporate applicable future amendments to the Privacy Rule and HIPAA that affect the obligations of the parties.
- CUSTOMER is the exclusive owner of PHI generated or used under this Agreement.
- Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than CUSTOMER, Business Associate and their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever.
- Any ambiguity in this Agreement shall be resolved to permit CUSTOMER to comply with the Privacy Rule.
- This Agreement may be executed in counterparts. A facsimile or electronic signature shall be deemed the original signature.
- Notices should be sent to the addresses on the signature page, with copies to the email addresses listed, unless otherwise amended or changed in writing pursuant to this Agreement.
Date: {{{Todays_Date}}} |
By: {{{Customer_Legal_Name}}} |
Name: {{{Customer_Signor}}} |
Title: {{{Customer_Signor_Title}}} |
Address: {{{Customer_Street_Address}}} |
{{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective November 21, 2017 to May 12, 2020
DownloadTable of Contents
Business Associate Agreement - Customers
This Business Associate Agreement (“Agreement”) is entered into this {{{Todays_Date}}}​
(“Effective Date”) between the customer executing this Agreement below (“CUSTOMER”, for itself and its parents, subsidiaries, affiliates, officers, agents, directors, employees and assigns; and also potentially a Covered Entity) and SWERVEPAY LLC, an Illinois limited liability company, including its parents, subsidiaries, affiliates, officers, agents, directors, employees and assigns (collectively and each a “Business Associate”).
(“Effective Date”) between the customer executing this Agreement below (“CUSTOMER”, for itself and its parents, subsidiaries, affiliates, officers, agents, directors, employees and assigns; and also potentially a Covered Entity) and SWERVEPAY LLC, an Illinois limited liability company, including its parents, subsidiaries, affiliates, officers, agents, directors, employees and assigns (collectively and each a “Business Associate”).
1. DEFINITIONS
Capitalized terms used, but not otherwise defined in this Agreement, shall have the same meanings given to them under 45 CFR Parts 160 and Subparts A and E of 164 (“Privacy Rule”). Unless expressly stated otherwise, “PHI” (Protected Health Information) shall include electronic PHI (“EPHI”) throughout this Agreement.
2. PURPOSE FOR WHICH BUSINESS ASSOCIATE MAY USE OR DISCLOSE PHI
Except as otherwise limited by this Agreement, Business Associate may Use or make Disclosure of PHI provided or made available from CUSTOMER, or created on behalf of CUSTOMER, solely to perform any function, activity, or service for, or on behalf of, CUSTOMER pursuant to the parties’ written agreements, including, without limitation, its agreement(s) entitled , dated (“Services Agreement(s)”) as amended from time to time—as long as such Use or Disclosure would not violate the Privacy Rule or the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) if Used or Disclosed by CUSTOMER or the minimum necessary policies and procedures of CUSTOMER.
3. BUSINESS ASSOCIATE OBLIGATIONS
Business Associate shall:
- Not Use or make Disclosure of PHI other than as permitted or required by this Agreement or as Required by Law. As required by § 164.502(b), when Using or Disclosing PHI, or requesting PHI from CUSTOMER, Business Associate shall make best efforts to limit the PHI to the minimum necessary to accomplish the intended purpose of the Use, Disclosure, or request.
- Establish, maintain, and use reasonable and appropriate safeguards to prevent Use or Disclosure of PHI, other than as permitted under this Agreement. Business Associate shall give CUSTOMER information concerning its safeguards that CUSTOMER requests and shall give access to its facilities, upon reasonable request, for the purpose of determining Business Associate’s compliance.
- Comply with CUSTOMER’s policies and practices relating to the confidentiality, privacy, and security of PHI.
- Maintain privacy and security policies that comply with all applicable laws and regulations. CUSTOMER has the right to request a copy of Business Associate’s privacy and security policies.
- Mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a Use or Disclosure of PHI by Business Associate in violation of the requirements of this Agreement.
- In accordance with § 164.410(a), immediately report to CUSTOMER any Use or Disclosure of PHI of which Business Associate becomes aware that is not provided for, or allowed by, this Agreement , whether or not the Use or Disclosure arises to the level of a Breach under HIPAA. Business Associate shall send a report to CUSTOMER within five calendar days of becoming aware of such unauthorized Use or Disclosure. Such report shall include the following, to the extent available to Business Associate, and any other items Required By Law:
- The identification of each individual whose unsecured PHI has been, or is reasonably believed to have been, accessed, acquired, Used or Disclosed.
- A description of what happened.
- A description of the types of unsecured PHI that were involved in the unauthorized Use or Disclosure (e.g. name, social security number, date of birth, CPT, diagnosis, etc.)
- Recommended steps Individuals should take to protect themselves from harm resulting from the Breach.
- A description of what is being done to investigate the Breach, to mitigate harm to Individuals, and to protect against further Breaches.
- Business Associate shall cooperate with CUSTOMER in the investigation and shall provide a final investigation report at the completion of its investigation, which investigation shall not exceed 30 days)Contact information for Individuals to obtain additional information. In the event the unauthorized Use or Disclosure constitutes a breach of patient privacy, Business Associate shall coordinate with CUSTOMER in the preparation of any notifications to patients or government agencies Required by Law, and shall allow CUSTOMER to provide such notice if CUSTOMER determines it is in the best interests of its patients for CUSTOMER to send such notice, insofar as allowed by law.
- In accordance with §§ 164.502(e)(1)(ii) and 164.308(b)(1), ensure that any of Business Associate’s agents, including Subcontractors that create, receive, maintain, or transmit PHI on behalf of CUSTOMER, agree in writing to the same restrictions and conditions that apply through this Agreement to Business Associate with respect to such PHI.
- At CUSTOMER’s request, provide prompt access to PHI to CUSTOMER or, as directed by CUSTOMER, to an Individual in order to meet the requirements under 45 CFR § 164.524.
- Make any amendment(s) to PHI in a Designated Record Set that CUSTOMER directs or agrees to pursuant to 45 CFR § 164.526, in the time and manner that CUSTOMER directs. Business Associate will not respond directly to an Individual’s request for an amendment of their PHI, except as stated in subparagraph (h) above, but will refer the Individual to CUSTOMER so it can coordinate and prepare a timely response to the Individual.
- Promptly make available to the Secretary of the U.S. Department of Health and Human Services all internal practices, books and records relating to the Use or Disclosure of PHI received from CUSTOMER, or created by Business Associate on behalf of CUSTOMER, for purposes of determining CUSTOMER’s compliance with the Privacy Rule. Business Associate shall promptly notify CUSTOMER of Business Associate’s receipt of such request by the Secretary.
- Document such Disclosures of PHI and information related to such Disclosures as would be required for CUSTOMER to respond to a request by an Individual for an accounting of Disclosures of PHI in accordance with 45 CFR § 164.528.
- Promptly provide CUSTOMER with information collected in accordance with Section (k) above, to permit CUSTOMER to respond to a request by an Individual for an accounting of Disclosures of PHI in accordance with 45 CFR § 164.528. Business Associate will refer any Individual’s request for an accounting to CUSTOMER.
- To the extent Business Associate conducts Standard Transactions with, or on behalf of, CUSTOMER, comply with each applicable requirement of 45 CFR Part 162, and require the same of any subcontractor or agent involved with the conduct of such Standard Transactions.
- Comply with any agreement CUSTOMER may make to restrict Use or Disclosure of PHI pursuant to 45 CFR § 164.522.
- To the extent Business Associate is delegated to perform any of CUSTOMER’s obligations under Subpart E of 45 CFR Part 164, Business Associate shall comply with the all requirements that apply to CUSTOMER under Subpart E in the performance of such obligations.
- Business Associate shall abide by all applicable requirements for business associates set forth the HITECH Act, which was adopted as part of the American Recovery and Reinvestment Act of 2009, and its implementing regulations, and which makes business associates directly liable for compliance with many of the same requirements as CUSTOMER under both the Privacy Rule and the Security Rule. Accordingly, Business Associate shall, among other things, implement adequate policies, procedures, and practices to prevent, detect, evaluate, report, and mitigate breaches of PHI; and perform regular risk analyses.
- Business Associate shall conform its practices to Department of Health and Human Services guidance regarding the most effective and appropriate technical safeguards to facilitate compliance with HIPAA.
4. PERMITTED USE AND DISCLOSURE BY BUSINESS ASSOCIATE
Business Associate may:
- Disclose PHI in its possession to third parties for Business Associate’s proper management and administration, or to fulfill any of its legal responsibilities, provided that (i) the Disclosures are Required By Law, or (ii) Business Associate has received reasonable assurances evidenced by written contract from the third party that the PHI will be held confidentially, and Used or further Disclosed only as Required By Law or for the purpose for which it was Disclosed to the third party, and that the third party will notify Business Associate (who will in turn promptly notify CUSTOMER) of any instances of which it is aware in which the confidentiality of the PHI has been breached. Use or Disclosure to third parties shall be the minimum necessary to perform or fulfill the specific function required.
- Use PHI in its possession to provide Data Aggregation services to CUSTOMER as permitted by 45 CFR § 164.504(e)(2)(i)(B), if CUSTOMER directs such services.
5. OBLIGATIONS OF CUSTOMER
- CUSTOMER shall notify Business Associate of any limitation(s) in its Notice of Privacy Practices of CUSTOMER in accordance with 45 CFR § 164.520, to the extent that such limitation may affect Business Associate's Use or Disclosure of PHI.
- CUSTOMER shall notify Business Associate of any changes in, or revocation of, permission by Individual to Use or Disclose PHI, to the extent that such changes may affect Business Associate's Use or Disclosure of PHI.
- CUSTOMER shall notify Business Associate of any restriction to the use or disclosure of PHI that CUSTOMER has agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of PHI.
- CUSTOMER shall not request Business Associate to Use or Disclose PHI in any manner that would not be permissible under the Privacy Rule if done by CUSTOMER, unless such Use or Disclosure is necessary for the purposes of Data Aggregation or management and administrative activities of Business Associate under this Agreement.
6. TERMINATION
- The term of this Agreement shall be effective as of the Effective Date, and shall terminate when all of the PHI provided by CUSTOMER to Business Associate, or created or received by Business Associate on CUSTOMER’s behalf, is destroyed or returned to CUSTOMER. If it is infeasible to return or destroy PHI, Business Associate shall protect that information as provided in Section 7 below.
- Upon CUSTOMER’s knowledge of a material breach of the terms of this Agreement by Business Associate, CUSTOMER shall, in accordance with the notification requirement set forth in the Services Agreement(s), provide an opportunity for Business Associate to cure the breach or end the violation. CUSTOMER may terminate this Agreement if Business Associate does not cure the breach or end the violation within the cure period set forth in the Services Agreement(s). If there is no cure period in the Services Agreement(s) for material breaches, CUSTOMER may provide Business Associate with a cure period or terminate the Services Agreement(s) immediately, at its option.
7. RETURN OR DESTRUCTION OF PHI
- Upon termination of this Agreement for any reason, Business Associate shall, within thirty (30) days of termination, return to CUSTOMER any and all PHI Business Associate or its subcontractors or agents received from CUSTOMER, or from another party on behalf of CUSTOMER, or was created by Business Associate or its subcontractors or agents on behalf of CUSTOMER that is maintained by Business Associate or its subcontractors or agents in any form whatsoever, including any copies or replicas. If returning the PHI to CUSTOMER is not feasible for Business Associate, Business Associate shall destroy any and all PHI maintained by it or its subcontractors or agents in any form whatsoever, including any copies or replicas. . It shall destroy PHI to the destruction standards required by the Health Resources and Services Administration and notify CUSTOMER of destruction.
- Should the return or destruction of the PHI under (a) be determined by Business Associate to be not feasible, Business Associate shall provide to CUSTOMER notification of the conditions that make return or destruction infeasible within thirty days of termination. Upon CUSTOMER’s agreement that return or destruction of PHI is infeasible, Business Associate shall extend the protections of this Agreement to such PHI and limit further Uses and Disclosures to those purposes that make the return or destruction infeasible, for so long as the Business Associate maintains such PHI. Similarly, Business Associate shall require its subcontractors or agents to agree to extend the same protections to PHI and similarly limit its Use or Disclosure. This provision shall survive the termination of this Agreement.
- Business Associate’s obligations under Section 3(a) survive termination indefinitely.
8. MISCELLANEOUS
- The parties recognize that HIPAA laws and regulations may change over time; therefore, the parties agree that this Agreement will be automatically amended from time to time to incorporate applicable future amendments to the Privacy Rule and HIPAA that affect the obligations of the parties.
- CUSTOMER is the exclusive owner of PHI generated or used under this Agreement.
- CUSTOMER shall have the right to review and approve any proposed assignment or subcontracting of Business Associate’s duties and responsibilities arising under the Agreement.
- CUSTOMER shall have the right to audit and monitor all activities and records of Business Associate to determine its compliance with this Agreement and the Privacy Rule.
- Business Associate will indemnify and hold harmless CUSTOMER and its affiliates, officers, directors, employees, advisors or agents from and against any claim, cause of action, liability, damage, penalties, fines, sanctions, cost or expense (including attorneys’ fees) arising out of any non-permitted Use or Disclosure of PHI or other breach of this Agreement by Business Associate or its subcontractor, agent, person, or entity under its control.
- Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than CUSTOMER, Business Associate and their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever.
- Any ambiguity in this Agreement shall be resolved to permit CUSTOMER to comply with the Privacy Rule.
- This Agreement may be executed in counterparts. A facsimile or electronic signature shall be deemed the original signature.
- Because damages will not be an adequate remedy in the event of a breach of this Agreement, CUSTOMER may seek equitable relief in such event without posting a bond or providing irreparable harm.
- Notices should be send to the addresses on the signature page, with copies to the email addresses listed, unless otherwise amended or changed in writing pursuant to this Agreement.
[SIGNATURES IMMEDIATELY FOLLOW BELOW]
Date: {{{Todays_Date}}}​ | Date: {{{Todays_Date}}}​ |
By: Jaeme Adams | By: {{{Customer.Legal.Name}}}​ |
Name: Jaeme Adams | Name: {{{Customer.Signor}}}​ |
Title: CEO | Title: {{{Customer.Signor.Title}}}​ |
Address: 121 W. Wacker Dr., 28th Floor | Address: {{{Customer_Street_Address}}}​ |
Chicago, IL 60606 | {{{Customer_City}}}​, {{{Customer_State}}}​ {{{Customer_ZipCode}}}​ |
Email: legal@swervepay.com | Email: {{{Customer_Email}}}​ |
Schedule A - Pricing: QRS
Effective August 30, 2022
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 3.00% $0.25 $25.00 | Transaction Volume Processed Per Transaction PCI Non-Compliance Fee Per Non-Compliant Month. Finvi Payments may terminate if Client fails to maintain PCI Compliance. |
Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
Effective January 25, 2018 to August 30, 2022
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 2.95% $0.25 | Transaction Volume Processed Per Transaction |
Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
Effective December 19, 2017 to January 25, 2018
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 2.95% 2.95% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
Schedule A - Pricing: DoTherapy
Effective January 18, 2018
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 3.15% $0.15 | Transaction Volume Per Transaction |
Device / Readers: IDTech M130 w Keypad for Manual Entry Magtek Dynamag (No Keypad) | $130.00 $120.00 | Per Device Per Device |
Effective December 20, 2017 to January 18, 2018
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 3.15% 3.15% $0.15 | Swipe Transactions Non-Swipe Transactions Per Transaction |
Device / Readers: IDTech M130 w Keypad for Manual Entry Magtek Dynamag (No Keypad) | $130.00 $120.00 | Per Device Per Device |
Schedule A - Pricing QueueLogix
Effective January 19, 2018
DownloadTable of Contents
Schedule A: Pricing
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 3.00% $0.30 | Transaction Volume Per Transaction |
Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
Schedule A - Pricing: NextStep Solutions
Effective August 30, 2022
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 3.20% $0.15 $25.00 | Transaction Volume Per Transaction PCI Non-Compliance Fee Per Non-Compliant Month. Finvi Payments may terminate if Client fails to maintain PCI Compliance. |
Device / Readers: IDTech M130 w Keypad for Manual Entry Magtek Dynamag (No Keypad) | $130.00 $120.00 | Per Device Per Device |
Effective January 26, 2018 to August 30, 2022
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 3.15% $0.15 | Transaction Volume Per Transaction |
Device / Readers: IDTech M130 w Keypad for Manual Entry Magtek Dynamag (No Keypad) | $130.00 $120.00 | Per Device Per Device |
Privacy Policy - SwervePay
Effective April 12, 2018
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SwervePay Website Terms of Use
Last Modified: April 8, 2018
These terms of use are entered into by and between You and SwervePay, LLC (“Company”, “we” or “us”). Any references to the “Company,” “we” or “us” also includes any subsidiary of the Company if applicable to such subsidiary, including but not limited to SwervePay Health, LLC and SwervePay Auto, LLC. The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Use”), govern your access to and use of www.swervepay.com (U.S.) and any other website hereafter established by the Company (each, an “Applicable Site”), including any content, functionality and services offered on or through either of the Applicable Sites (together, the “Website”).
Please read the Terms of Use carefully before you start to use the Website. By using the Website, you accept and agree to be bound and abide by these Terms of Use and our Privacy Policy, found at www.swervepay.com incorporated herein by reference. If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the Website.
This Website is offered and available to users who are 18 years of age or older, and reside in the United States. By using this Website, you represent and warrant that you meet the foregoing eligibility requirements. If you do not meet these requirements, you must not access or use the Website. The Company disclaims all liability for your failure to comply with these Terms of Use.
Changes to the Terms of Use
We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Website thereafter.
Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
Accessing the Website
We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users.
You agree that all information you provide through this Website, including but not limited to, the use of any contact form, free text field, or other available interactive features on the Website (if any, now or hereafter added) is governed by our Privacy Policy found at www.swervepay.com and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
Intellectual Property Rights
The Website and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
These Terms of Use permit you to use the Website for your individual use only, or the use of the organization of which you are a representative. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Website, except as follows:
Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
You may store files that are automatically cached by your Web browser for display enhancement purposes.
You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication or distribution.
Should we provide social media features with certain content, you may take such actions as are enabled to such features. You must not:
Modify copies of any materials from the Website.
Use any illustrations, photographs, video or audio sequences or any graphics separately form the accompanying text, except when liking to such content on or from another website. Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the Website.
You must not access or use any part of the Website or any services or materials available through the Website for your individual profit or gain, or that of any organization you represent except in connection with utilization of the services made available to you by the Company to you from time to time.
If you print, copy, modify, download or otherwise use the Website in breach of the Terms of Use, your right to use the Website will cease immediately and you must, at our option, return or destroy any copies of the materials you have made, subject to the right to retain copies in electronic format for archival purposes only and not for commercial use. No right, title or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark and other laws.
Trademarks
The Company name, Company logo and all related names, logos, product and service names, designs and slogans are trademarks or intellectual property of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company or the applicable owner.
Prohibited Uses
You may use the Website only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Website:
In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or Canada).
For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses associated with any of the foregoing).
To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website or expose them to liability.
Additionally, you agree not to:
Use the Website in any manner that could disable, overburden, damage, or impair the Website or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
Use any robot, spider or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.
Use any device, software or routine that interferes with the proper working of the Website.
Introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer or database connected to the Website.
Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
Otherwise attempt to interfere with the proper working of the Website.
Reliance on Information
The information presented on or through the Website is made available solely for general information and educational purposes. We always strive to provide useful and current information. The Company is subject to Payment Card Industry Data Security Standards (“PCI-DSS”) compliance. While we may use the Website to provide certain information in compliance with the requirements of such standards, the Company does not warrant or represent that the information provided is accurate, current, or complete at any particular time. Furthermore, the Company does not warrant or represent that use of any information or content provided on the Website will ensure compliance with any law or regulation, or provide other legal protections to you, your organization or any other visitor to the Website. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from your reliance placed on such materials, including, without limitation, PCI-DSS compliance.
Third Party Websites or Content; Links to Third Party Websites
This Website may include content provided by third parties. All statements and/or opinions expressed in these materials and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the contrnte or accuracy of any materials provided by any third parties.Links to other websites and resources provided by third parties, if any, are provided for your convenience only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to this Website, you do so subject to the terms and conditions of use for such websites, and at your own risk.
Changes to the Website
We may update the content on this Website from time to time, but such content is not necessarily complete or up-to-date at any particular time. The Company does not warrant or represent such information is current and is under no duty or obligation to do so.
Information About You and Your Visits to the Website
All information we collect on this Website is subject to our Privacy Policy, found at www.swevepay.com By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
Geographic Restrictions
We provide this Website for use only by persons located in the United States and Canada. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States and Canada. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States or Canada, you do so on your own initiative and are responsible for compliance with local laws.
Disclaimer of Warranties
THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE OR ITS CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
Limitation on Liability
IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
Indemnification
You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Website, including, but not limited to, any use of the Website’s content other than as expressly authorized in these Terms of Use or your use of any information obtained from the Website.
Cooperation with Law Enforcement
We have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone providing any information to or through the Website. YOU WAIVE AND HOLD THE COMPANY HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER THE COMPANY OR LAW ENFORCEMENT AUTHORITIES.
Governing Law
All matters relating to the Website and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Illinois, United States without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois, United States or any other jurisdiction).
Waiver and Severability
No waiver by the Company of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.
If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.
Entire Agreement
The Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and SwervePay with respect to the Website and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Website.
Your Comments and Concerns
This Website is operated by SwervePay, LLC attn.: www.swervepay.com.
All other feedback, comments, requests for technical support and other communications relating to the Website should be directed to: 888-875-4782.
Effective January 29, 2018 to April 12, 2018
DownloadTable of Contents
SwervePay Privacy Policy
Last Modified: June 20, 2017
SwervePay, LLC and its subsidiaries (collectively, “SwervePay” or “we”) respect your privacy and are committed to protecting your Personal Information. We want you to understand how we may collect, store, use and protect any Personal Information. We will not share your information with anyone except as described in this Privacy Policy. Throughout this Privacy Policy, we will refer to our website, software, and other payment processing services, including our automated voice and SMS text messaging services, collectively as the “Services.” Please note this Privacy Policy does not apply to information we collect by other means than your use of the Service (including offline) or from other sources.
Please read this Privacy Policy carefully to understand our policies and practices regarding your information and how we will treat it. If you do not agree with our policies and practices, your choice is not to use our Services. By accessing or using the Services, you agree to this Privacy Policy. This policy may change from time to time. Your continued use of this Services after we make changes is deemed to be acceptance of those changes, so please check the policy periodically for updates.
Information We Collect Directly from You
We generally collet the following information directly from users of our Services:
	When you register for or use a SwervePay account: we collect personal information such as your email address and the last 4 digits of your social security number if an individual or your employer ID number if an entity.
	When you access your SwervePay account to make a payment: we collect billing and related information such as your telephone number, email address, and credit card information.
	When we verify your identity and underwrite your application for an account: we will request additional personal information to confirm your identity. We may ask you for your driver’s license number, social security number, birth date or other Personal Information. At times we will obtain information about you from third party verification services and credit bureaus.
Additional information from or about you may also be collected from you by filling out forms through our Services, including responses to customer surveys, or through your communications with our customer service team.
We Use Technology to Help Us Automatically Collect Information from You
When you use our Services, we may automatically record your account transactions, transaction location, and computer or access device.
We do not track users over time and across third party websites to provide targeted advertising and therefore does not respond to Do Not Track (DNT) signals.
Cookies
It is important for us to track how our website is used, and we (or our service providers) may place “cookies” on your computer or device. Cookies are small data files that identify you when you use our Services. You have the option to decline our cookies by using your browsers settings tools, but this may interfere with your use of our Services.
Log File Information
Log file information is automatically reported by your browser each time you access a web page. When you register with or view our Services, our servers automatically record certain information that your web browser sends whenever you visit any website. These server logs may include information such as your web request, Internet Protocol (“IP”) address, browser type, referring / exit pages and URLs, number of clicks, domain names, landing pages, pages viewed and other information.
The information we collect automatically is statistical data, and does not identify any individual or entity. It helps us to improve our Services and to deliver a better and more personalized service by enabling us to estimate our audience size and usage patterns.
Protecting Personal Information
Any information that can be used to identify a person is “Personal Information.” This does not include information that has been aggregated or made anonymous. We have implemented measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, and disclosure.
The safety and security of your information also depends on you. Where you have chosen a password for access to certain parts of our Services, you are responsible for keeping this password confidential. We ask you not to share your password with anyone. Unfortunately, the transmission of information via the internet is not completely secure. Although we do our best to protect your Personal Information, we cannot guarantee the security of your Personal Information transmitted to our Services. Any transmission of Personal Information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the Website.
Using Personal Information
We use your Personal Information to provide you the features and functionality of the Service to ensure that you have a safe, high-performance experience when using the Service. The Personal Information that you provide allows us to verify your identity, process transactions and send notices about your transactions, resolve disputes, otherwise communicate with you regarding the Services, and to enforce our agreements with you. The Personal Information allows us to secure the best possible experience for all SwervePay users by ensuring compliance with federal, state and local laws and our own policies. We may also use this information to measure how our users use the Services, and improve and enhance our offerings to you.
We may also use your information to contact you about our own goods and services that may be of interest to you. If we do use your information to contact you about our own goods and services, you may unsubscribe from our contact within the email correspondence or by sending us an e-mail stating your request to info@swervepay.com.
We use cookies and log file information to: (a) remember information so that you will not have to re-enter it during your visit or the next time you visit the site; (b) provide custom, personalized content and information; (c) monitor the effectiveness of our Service; (d) monitor aggregate metrics such as total number of visitors and traffic; (e) diagnose or fix technology problems reported by our users or engineers that are associated with certain IP addresses; and (f) help you efficiently access your information after you sign in.
Sharing Personal Information
SwervePay will not rent or sell your Personal Information to others except as set forth in this Privacy Policy. SwervePay may share your Personal Information with third parties for the purpose of providing the Services to you (such as those described below). If we do this, such third parties’ use of your Personal Information will be bound by terms at least as restrictive as this Privacy Policy. We may store Personal Information in locations outside the direct control of SwervePay (for instance, on servers or databases co-located with hosting providers).
We may share your Personal Information with third parties, including but not limited to:
	Service providers who provide us a range of essential operational services including fraud prevention, transaction processing, collections, direct marketing, and managed technology services. Our contracts dictate that these service providers only use your information in connection with the services they perform for us and not for their own benefit.
	Verification services and credit bureaus to underwrite your application for SwervePay accounts or accounts serviced through our Services, and to comply with our legal credit reporting rights and obligations.
	Financial institutions that allow us to offer your payment processing services, and partner with us to develop new offerings for you.
	Clients of SwervePay for whom we accept payments from you on their behalf through the Services are referred to as “Clients”. In doing so, we may share information about you to our Clients, such as your birthday or mobile phone number, that our Clients may use to contact you with regard to the business relationship between you and our Client.
	Law enforcement authorities or government representatives who may require us to share information in order to comply with court order and other legal mandates, or when we believe that disclosure is necessary to report suspicious activities, prevent physical harm, financial loss or violations of our agreements and policies.
	Other third parties, subject to your prior consent or direction.
As we develop our business, we may buy or sell assets or business offerings. User, transaction, email, and visitor information is generally one of the transferred business assets in these types of transactions. We may transfer your Personal Information to a buyer or other successor of all or any portion of our business in the event of a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of SwervePay’s assets (whether of SwervePay, LLC or any of its subsidiaries), whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which Personal Information held by SwervePay about uses of our Services is among the assets transferred.
Except as otherwise described in this Privacy Policy, SwervePay will not disclose Personal Information to any third party unless required to do so by law or subpoena or if we believe that such action is necessary to: (a) conform to the law, comply with legal process served on us or our affiliates, or investigate, prevent, or take action regarding suspected or actual illegal activities; (b) to enforce our Terms of Service (as specified on our website or in any contract with you or any of our Clients involving you) and related agreements, take precautions against liability, to investigate and defend ourselves against any third-party claims or allegations, to assist government enforcement agencies, or to protect the security or integrity of our site; and (c) to exercise or protect the rights, property, or personal safety of SwervePay, our users or others.
SwervePay may disclose certain information about you without identifying you as an individual to third parties. We do this for purposes such as analyzing how the Services are used, diagnosing service or technical problems, maintaining security and personalizing content.
Your Choices about Your Information
You may, of course, decline to submit personally identifiable information through the Services, in which case SwervePay may not be able to provide certain Services to you. You can review and correct the information about you that SwervePay keeps on file by contacting us as described below.
Children’s Privacy
Protecting the privacy of young children is especially important. For that reason, SwervePay does not knowingly collect or solicit Personal Information from anyone under the age of 13 or knowingly allow such persons to register with our Services. Our Services are not intended for children under 13 years of age. If you are under 13, do not register for any of our Services or send any information about yourself to us, including your name, address, telephone number, or email address. No one under age 13 is allowed to provide any Personal Information to or on SwervePay. In the event that we learn that we have collected Personal Information from a child under age 13 without verification of parental consent, we will delete that information as quickly as possible upon learning that it involves persons under age 13. If you believe that we might have any information from or about a child under the age of 13, please contact us as described below.
Links to Other Websites
SwervePay is not responsible for the practices employed by websites linked to or from our Services, nor the information or content contained therein. Please remember that when you use a link to go from our Services to another website, our Privacy Policy is no longer in effect. Your browsing and interaction on any other website, including those that have a link on our Services, is subject to that website’s own rules and policies. Please read over those rules and policies before proceeding.
Changes to Our Privacy Policy
If we change our privacy policies and procedures, we will post those changes on our website to keep you aware of what information we collect, how we use it and under what circumstances we may disclose it. Changes to this Privacy Policy are effective when they are posted on this page.
Contact Us with Any Questions
Please contact at 1-888-875-4782 or info@swervepay.com with any questions or concerns regarding our policy.
SwervePay
19692372.1
SwervePay Schedule A: BillingTree
Effective April 12, 2018
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: SwervePay Health Pro Software Merchant Services | 2.25% 2.75% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
Device / Reader - Magtek USB Keyboard Emulated | $100.00 | Per Device |
Schedule A - Pricing: SwervePay Professional
Effective January 29, 2018
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 2.95% $0.30 | Processed Volume Per Transaction |
Device / Readers: IDTech M130 w Keypad for Magtek Dynamag (No Keypad) | $130.00 $120.00 | Per Device Per Device |
Schedule A - Pricing: SwervePay Professional Custom
Effective January 29, 2018
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 3.00% $0.30 | Processed Volume Per Transaction |
Device / Readers: IDTech M130 w Keypad for Magtek Dynamag (No Keypad) | $130.00 $120.00 | Per Device Per Device |
Bank Draft Authorization Form for ACH
Effective March 31, 2021
DownloadTable of Contents
Bank Draft Authorization Agreement
For Pre-Authorized Payments (ACH)
I hereby authorize SwervePay, LLC (“SwervePay”) to initiate debit or credit entries, which are necessary for services, and I authorize the BANK / FINANCIAL INSTITUTION named below to debit (or credit) the account described below. This transaction will be for the purpose of satisfying invoices for monthly software or merchant account service fees, setup fees, and other fees for services requested from SwervePay. ADDITIONALLY, IN THE EVENT THE UNDERSIGNED BUSINESS IS APPLYING FOR A MERCHANT ACCOUNT, I AUTHORIZE SWERVEPAY TO PROVIDE THE BELOW AND RELATED INFORMATION TO THE MERCHANT ACCOUNT PROCESSOR FOR PURPOSES OF COMPLETING A MERCHANT ACCOUNT APPLICATION.
BANKING INFORMATION:
Type of Account: Checking
Company Name on Bank Account:
Bank / Financial Institution Name:
Transit / Routing Number:
Bank Account Number:
Verify Bank Account Number:
City and State of Bank or Financial Institution:
I understand that this authorization will remain in effect until I notify SwervePay and my financial institution in writing that I/we no longer desire this service, and by giving reasonable notice (30 days) to both SwervePay and my financial institution to act on my notification to cancel this agreement. I also understand that if corrections in the transactions are necessary, an adjustment (credit or debit) to my account may be necessary. 		
COMPANY INFORMATION:
Company / Business Name: {{{Customer_Legal_Name}}}
Street Address of Business: {{{Customer_Street_Address}}}
City / State / Zip of Business: {{{Customer_City}}}/{{{Customer_State}}}/{{{Customer_ZipCode}}}
Accounting Contact Name: {{{Business_Contact_First_Name}}} {{{Business_Contact_Last_Name}}}
Accounting Contact Email: {{{Business_Contact_Email_Address}}}
Accounting Contact Phone: {{{Customer_PhoneNumber}}}
Authorized Signature: {{{Customer_Signor}}}
Authorized Signer Email: {{{Customer_Signor_Email}}}
Authorized Signer Title: {{{Customer_Signor_Title}}}
Date: {{{Todays_Date}}}
PLEASE EMAIL OR ATTACH AN IMAGE OF VOIDED CHECK OR BANK LETTER WITH ACCOUNT INFORMATION TO FINANCE@SWERVEPAY.COM.
Effective April 21, 2020 to March 31, 2021
DownloadTable of Contents
Bank Draft Authorization Agreement
For Pre-Authorized Payments (ACH)
I hereby authorize SwervePay Health, LLC (“SwervePay”) to initiate debit or credit entries, which are necessary for services, and I authorize the BANK / FINANCIAL INSTITUTION named below to debit (or credit) the account described below. This transaction will be for the purpose of satisfying invoices for monthly software or merchant account service fees, setup fees, and other fees for services requested from SwervePay. ADDITIONALLY, IN THE EVENT THE UNDERSIGNED BUSINESS IS APPLYING FOR A MERCHANT ACCOUNT, I AUTHORIZE SWERVEPAY TO PROVIDE THE BELOW AND RELATED INFORMATION TO THE MERCHANT ACCOUNT PROCESSOR FOR PURPOSES OF COMPLETING A MERCHANT ACCOUNT APPLICATION.
BANKING INFORMATION:
Type of Account: Checking
Company Name on Bank Account:
Bank / Financial Institution Name:
Transit / Routing Number:
Bank Account Number:
Verify Bank Account Number:
City and State of Bank or Financial Institution:
I understand that this authorization will remain in effect until I notify SwervePay and my financial institution in writing that I/we no longer desire this service, and by giving reasonable notice (30 days) to both SwervePay and my financial institution to act on my notification to cancel this agreement. I also understand that if corrections in the transactions are necessary, an adjustment (credit or debit) to my account may be necessary. 		
COMPANY INFORMATION:
Company / Business Name: {{{Customer_Legal_Name}}}
Street Address of Business: {{{Customer_Street_Address}}}
City / State / Zip of Business: {{{Customer_City}}}/{{{Customer_State}}}/{{{Customer_ZipCode}}}
Accounting Contact Name: {{{Business_Contact_First_Name}}} {{{Business_Contact_Last_Name}}}
Accounting Contact Email: {{{Business_Contact_Email_Address}}}
Accounting Contact Phone: {{{Customer_PhoneNumber}}}
Authorized Signature: {{{Customer_Signor}}}
Authorized Signer Email: {{{Customer_Signor_Email}}}
Authorized Signer Title: {{{Customer_Signor_Title}}}
Date: {{{Todays_Date}}}
PLEASE EMAIL OR ATTACH AN IMAGE OF VOIDED CHECK OR BANK LETTER WITH ACCOUNT INFORMATION TO FINANCE@SWERVEPAY.COM.
Effective April 20, 2020 to April 21, 2020
DownloadSummary of changes
Formatting
Table of Contents
Bank Draft Authorization Agreement
For Pre-Authorized Payments (ACH)
I hereby authorize SwervePay Health, LLC (“SwervePay”) to initiate debit or credit entries, which are necessary for services, and I authorize the BANK / FINANCIAL INSTITUTION named below to debit (or credit) the account described below. This transaction will be for the purpose of satisfying invoices for monthly software or merchant account service fees, setup fees, and other fees for services requested from SwervePay. ADDITIONALLY, IN THE EVENT THE UNDERSIGNED BUSINESS IS APPLYING FOR A MERCHANT ACCOUNT, I AUTHORIZE SWERVEPAY TO PROVIDE THE BELOW AND RELATED INFORMATION TO THE MERCHANT ACCOUNT PROCESSOR FOR PURPOSES OF COMPLETING A MERCHANT ACCOUNT APPLICATION.
BANKING INFORMATION:
Type of Account: Checking
Company Name on Bank Account:
Bank / Financial Institution Name:
Transit / Routing Number:
Bank Account Number:
Verify Bank Account Number:
City and State of Bank or Financial Institution:
I understand that this authorization will remain in effect until I notify SwervePay and my financial institution in writing that I/we no longer desire this service, and by giving reasonable notice (30 days) to both SwervePay and my financial institution to act on my notification to cancel this agreement. I also understand that if corrections in the transactions are necessary, an adjustment (credit or debit) to my account may be necessary. 		
COMPANY INFORMATION:
Company / Business Name: {{{Customer_Legal_Name}}}
Street Address of Business: {{{Customer_Street_Address}}}
City / State / Zip of Business: {{{Customer_City}}}/{{{Customer_State}}}/{{{Customer_ZipCode}}}
Accounting Contact Name: {{{Business_Contact_First_Name}}} {{{Business_Contact_Last_Name}}}
Accounting Contact Email: {{{Business_Contact_Email_Address}}}
Accounting Contact Phone: {{{Customer_PhoneNumber}}}
Authorized Signature: {{{Customer_Signor}}}
Authorized Signer Email: {{{Customer_Signor_Email}}}
Authorized Signer Title: {{{Customer_Signor_Title}}}
Date: {{{Todays_Date}}}
PLEASE EMAIL OR ATTACH AN IMAGE OF VOIDED CHECK OR BANK LETTER WITH ACCOUNT INFORMATION TO FINANCE@SWERVEPAY.COM.
Effective March 21, 2019 to April 20, 2020
DownloadTable of Contents
Bank Draft Authorization Agreement
For Pre-Authorized Payments (ACH)
I hereby authorize SwervePay Health, LLC (“SwervePay”) to initiate debit or credit entries, which are necessary for services, and I authorize the BANK / FINANCIAL INSTITUTION named below to debit (or credit) the account described below. This transaction will be for the purpose of satisfying invoices for monthly software or merchant account service fees, setup fees, and other fees for services requested from SwervePay. ADDITIONALLY, IN THE EVENT THE UNDERSIGNED BUSINESS IS APPLYING FOR A MERCHANT ACCOUNT, I AUTHORIZE SWERVEPAY TO PROVIDE THE BELOW AND RELATED INFORMATION TO THE MERCHANT ACCOUNT PROCESSOR FOR PURPOSES OF COMPLETING A MERCHANT ACCOUNT APPLICATION.
BANKING INFORMATION:
Type of Account: Checking
Company Name on Bank Account: {{{Business_Legal_Name}}}
Bank / Financial Institution Name: {{{Bank_Name}}}
Transit / Routing Number:
Bank Account Number:
Verify Bank Account Number:
City and State of Bank or Financial Institution:
I understand that this authorization will remain in effect until I notify SwervePay and my financial institution in writing that I/we no longer desire this service, and by giving reasonable notice (30 days) to both SwervePay and my financial institution to act on my notification to cancel this agreement. I also understand that if corrections in the transactions are necessary, an adjustment (credit or debit) to my account may be necessary. 		
COMPANY INFORMATION:
Company / Business Name: {{{Business_Legal_Name}}}
Street Address of Business: {{{Business_Street_Address}}}
City / State / Zip of Business: {{{Business_City}}}/{{{Business_State}}}/{{{Business_ZipCode}}}
Accounting Contact Name: {{{Business_Contact_First_Name}}} {{{Business_Contact_Last_Name}}}
Accounting Contact Email: {{{Business_Contact_Email_Address}}}
Accounting Contact Phone: {{{Business_Phone_Number}}}
Authorized Signature: {{{Business_Contact_Name}}}
Date: {{{Todays_Date}}}
PLEASE EMAIL OR ATTACH AN IMAGE OF VOIDED CHECK OR BANK LETTER WITH ACCOUNT INFORMATION TO FINANCE@SWERVEPAY.COM.
Effective July 25, 2018 to March 21, 2019
DownloadSummary of changes
Formatting
Table of Contents
Bank Draft Authorization Agreement
For Pre-Authorized Payments (ACH)
I hereby authorize SwervePay Health, LLC (“SwervePay”) to initiate debit or credit entries, which are necessary for services, and I authorize the BANK / FINANCIAL INSTITUTION named below to debit (or credit) the account described below. This transaction will be for the purpose of satisfying invoices for monthly software or merchant account service fees, setup fees, and other fees for services requested from SwervePay. ADDITIONALLY, IN THE EVENT THE UNDERSIGNED BUSINESS IS APPLYING FOR A MERCHANT ACCOUNT, I AUTHORIZE SWERVEPAY TO PROVIDE THE BELOW AND RELATED INFORMATION TO THE MERCHANT ACCOUNT PROCESSOR FOR PURPOSES OF COMPLETING A MERCHANT ACCOUNT APPLICATION.
BANKING INFORMATION:
Type of Account: Checking
Company Name on Bank Account: ______________________________________
Bank / Financial Institution Name: ______________________________________
Transit / Routing Number: _____________________
Bank Account Number: ________________________
Verify Bank Account Number: __________________
City and State of Bank or Financial Institution: ___________________________
I understand that this authorization will remain in effect until I notify SwervePay and my financial institution in writing that I/we no longer desire this service, and by giving reasonable notice (30 days) to both SwervePay and my financial institution to act on my notification to cancel this agreement. I also understand that if corrections in the transactions are necessary, an adjustment (credit or debit) to my account may be necessary. 		
COMPANY INFORMATION:
Company / Business Name: _________________________________________
Street Address of Business: _________________________________________
City / State / Zip of Business: ________________________________________
Accounting Contact Name: __________________________________________
Accounting Contact Email: __________________________________________
Accounting Contact Phone: _________________________________________
Authorized Person: _________________________________________________
Authorized Signature: _______________________________________________
Date: __________________
PLEASE EMAIL OR ATTACH AN IMAGE OF VOIDED CHECK OR BANK LETTER WITH ACCOUNT INFORMATION TO FINANCE@SWERVEPAY.COM.
Effective January 30, 2018 to July 25, 2018
DownloadTable of Contents
Bank Draft Authorization Agreement
For Pre-Authorized Payments (ACH)
I hereby authorize SwervePay Health, LLC (“SwervePay”) to initiate debit or credit entries, which are necessary for services, and I authorize the BANK / FINANCIAL INSTITUTION named below to debit (or credit) the account described below. This transaction will be for the purpose of satisfying invoices for monthly software or merchant account service fees, setup fees, and other fees for services requested from SwervePay. ADDITIONALLY, IN THE EVENT THE UNDERSIGNED BUSINESS IS APPLYING FOR A MERCHANT ACCOUNT, I AUTHORIZE SWERVEPAY TO PROVIDE THE BELOW AND RELATED INFORMATION TO THE MERCHANT ACCOUNT PROCESSOR FOR PURPOSES OF COMPLETING A MERCHANT ACCOUNT APPLICATION.
BANKING INFORMATION:
Type of Account: Checking
Company Name on Bank Account: ______________________________________
Bank / Financial Institution Name: ______________________________________
Transit / Routing Number: _____________________
Bank Account Number: ________________________
Verify Bank Account Number: __________________
City and State of Bank or Financial Institution: ___________________________
I understand that this authorization will remain in effect until I notify SwervePay and my financial institution in writing that I/we no longer desire this service, and by giving reasonable notice (30 days) to both SwervePay and my financial institution to act on my notification to cancel this agreement. I also understand that if corrections in the transactions are necessary, an adjustment (credit or debit) to my account may be necessary. 		
COMPANY INFORMATION:
Company / Business Name: _________________________________________
Street Address of Business: _________________________________________
City / State / Zip of Business: ________________________________________
Accounting Contact Name: __________________________________________
Accounting Contact Email: __________________________________________
Accounting Contact Phone: _________________________________________
Authorized Person: _________________________________________________
Authorized Signature: _______________________________________________
Date: __________________
PLEASE EMAIL OR ATTACH AN IMAGE OF VOIDED CHECK OR BANK LETTER WITH ACCOUNT INFORMATION TO FINANCE@SWERVEPAY.COM.
SwervePay Payfac Sub-Merchant Processing Agreement Jan 2018
Effective August 14, 2019
DownloadTable of Contents
SwervePay Sub-Merchant Processing Agreement
This SwervePay Sub-Merchant Processing Agreement (“Agreement”) is effective as of the date of full execution of this Agreement (“Effective Date”) between the customer designated below (“Client”) and SwervePay, LLC (“Payment Facilitator”) governing Client’s use of Payment Facilitator’s payment processing services to accept credit cards, debit cards, ACH transactions and/or checks (together, the “Services” and individually, each a “Service”).
CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY USING THE SERVICES CLIENT ACCEPT THESE TERMS AND CONDITIONS. IF CLIENT DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY DISCONTINUE USE OF THE SERVICES.
- Services
The Services allow Client to accept payment card transactions, ACH transactions and other electronic payment transactions (collectively, “Payment Transactions”) into Client’s bank account(s) or a Payment Facilitator account (as determined by Payment Facilitator in its sole discretion) on a compatible computer and/or mobile device. The Services are licensed to Client, and Payment Facilitator owns all copyright, trade secret, patent, and other proprietary rights in the Services. Payment Facilitator is not a bank; Payment Facilitator is a registered payment facilitator that processes or directs the processing of payments Client receives from Client customers (each “Client Customer” and collectively, “Client Customers”). To do this, Payment Facilitator enters into agreements with other processors and banks. Client will be required to provide certain personal and/or business information to open an account with Payment Facilitator, which must be approved by Payment Facilitator prior to using the Services (the “Sub-Merchant Account”). Client must provide accurate and complete information to Payment Facilitator when opening the Sub-Merchant Account. Payment Facilitator may forward some or all of this information to its processor and to any other person or entity that has involvement in connection with the processing of any of Client’s Payment Transactions, including Client’s bank or other financial institutions and Card Organizations. If Client’s request to open a Sub-Merchant Account is approved, Payment Facilitator may request additional information from Client at any time. Payment Facilitator may also periodically obtain reports to determine whether Client continues to meet the requirements for a Sub-Merchant Account. In addition, Client may be required to enter into additional agreements as required by Payment Facilitator’s processors (each a “Payment Facilitator Processor” and collectively, “Payment Facilitator’s Processors”) or the card organizations, such as MasterCard, Visa, Discover Network or American Express (the “Card Organizations”). The Card Organizations and Payment Facilitator Processors require that Client and Payment Facilitator comply with all of their respective applicable bylaws, rules and regulations, which may be amended at any time (collectively, the “Rules”). Payment Facilitator may amend this Agreement to comply with such amendments. Portions of these rules and regulations applicable to Visa and MasterCard are available on the Visa and MasterCard websites.
2. Card Readers / Swipe Device
Once Client’s Sub-Merchant Account is approved, and if purchased (or alternate arrangements) or required for Client’s account, the swipe device(s) will be sent to Client at the address provided. Payment Facilitator does not warrant that the swipe device or the Services will be compatible with Client’s computer, mobile device or third-party carrier. Client’s use of any swipe device and the Services may also be subject to the terms of Client’s mobile device manufacturer and Client’s carrier. Payment Facilitator shall not be responsible for any damages caused by defects associated with any swipe devices used by Client with respect to Client’s business or any hacking of any of such swipe devices.
3. Sub-Merchant Account By establishing a Sub-Merchant Account, Client confirms that Client is 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 it operates. The Services may only be used within the United States of America. Client agrees that Payment Facilitator is authorized to contact and share information about Client’s Sub-Merchant Account with Client’s bank or other financial institution and all Card Organizations. Upon approval of Client’s Sub-Merchant Account and by accepting the terms of this Agreement, Client authorizes Payment Facilitator to hold, receive, and disburse funds on Client’s behalf. Client may terminate this authorization by closing Client’s Sub-Merchant Account. Client agrees that in using the Services, Client will do the following:
- Only send SMS receipts to Client Customers who have requested a receipt be delivered in that manner;
- Comply with all applicable laws and regulations and all requirements of: (i) Card Organizations applicable to merchants; and (ii) all Payment Facilitator Processors.
- Maintain the security of account login information Client receives as part of Client’s use of the Services.
- Client agrees that if Client loses Client’s computer or mobile device, or Client has reason to believe that Client’s Sub-Merchant Account is no longer secure, Client will immediately notify Payment Facilitator;
- Not accept payments in connection with any illegal activity, or any activity that is inconsistent with Client’s type of business;
- Not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (i) adult content; (ii) airline or cruise line; (iii) collection agency; (iv) credit counseling or identity protection services; (v) debt elimination or reduction services; (vi) distressed property sales and marketing; (vii) gambling establishments or gambling; (viii) no card present tobacco or pharmaceutical sales; (ix) multilevel marketing programs or goods or services sold through such systems; (x) goods or services sold through rebate or upsell programs; (xi) timeshare resales and related marketing of goods, services or properties; (xii) sales to from operations outside the United States of America; (xiii) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; (xiv) acceptance of credit cards, debit cards or other forms of payment at scrip dispensing terminals; (xv) buyer club activities or buyer club memberships; (xvi) inbound or outbound telemarketing services; or (xvii) continuity or subscription services generated from direct marketing activities.
- Use the Services only for lawful merchant activities as approved by Payment Facilitator and not in a manner that results in or may result in complaints, disputes, chargebacks, fees, fines or penalties; and
- Not knowingly submit any sales transaction (i) that adds any surcharge to the transaction, except to the extent authorized by the Rules or applicable law, (ii) that adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately, (iii) that represents the refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible or arises from the dishonor of a Cardholder’s personal check or from the acceptance of a Card at a terminal that dispenses scrip, (iv) that is not a valid transaction between the Client and a bona fide Cardholder, (v) that Client knows or should have known to be fraudulent or not authorized by the Cardholder, or that Client knows or should have known to be authorized by a Cardholder colluding with Client for a fraudulent purpose, (vi) until after the products are shipped the services are performed, and/or Client has completed the transaction, unless Client has obtained Cardholder consent for a recurring transaction, (vii) where a valid authorization was required but not obtained, (viii) where multiple authorizations for amounts less than the total sale amount have been obtained, (ix) which results in a disbursement of cash or cash equivalent to a Cardholder or (x) that establishes a maximum dollar sale transaction amount, except to the extent authorized by the Rules.
- Not submit any refund transaction: (i) that does not correlate to an original sales transaction from the Cardholder, (ii) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Cardholder for postage paid by the Cardholder to return merchandise in accordance with a policy applied consistently by Client to all Client Customers, (iii) for returned products that were acquired in a cash purchase from Client, (iv) that would cause an overdraft, or (v) more than three (3) business days following either: (A) a regulatory requirement granting a Cardholder’s right to a refund; or (B) a non-disputed Cardholder request.
- Not use any Cardholder data or other transaction data received from Payment Facilitator or Payment Facilitator Processor for any purpose not authorized by this Agreement.
- Not disclose any Cardholder data or other transaction data to any entity except for necessary disclosures to affected Cardholders, and through Payment Facilitator Processor to affected Card Organization entities.
- Not provide Payment Facilitator any inaccurate, incomplete, or misleading information.
- Provide Payment Facilitator with timely notification of events that have caused or could cause material changes in Client’s ability to fulfill Client’s obligations under this Agreement, including but not limited to (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; or (iii) actions by governmental or non-governmental agencies.
- Not transfer or attempt to transfer Client’s financial liability by asking or requiring Cardholders to waive their dispute rights.
- Not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
- Not submit transactions for entities that do not have their principal places of business in the United States
- Not use the Services to process cash advances.
4. Unauthorized Use, Compliance with Law
Client may only use the Services in compliance with all laws, rules, and regulations applicable to the use of the Services. Payment Facilitator may choose not to authorize or settle any transaction submitted to Payment Facilitator if Payment Facilitator believes the transaction is in violation of this Agreement or may cause harm to Client, Client Customers, Payment Facilitator, or Payment Facilitator’s processors. Client expressly authorizes Payment Facilitator to share information about Client, Client’s Sub-Merchant Account or Client’s transactions with Client’s bank(s) and other financial institutions and with law enforcement if Payment Facilitator believes the Services have been used for an illegal, unauthorized or criminal purpose. Unauthorized Use, Compliance with Law
Client agrees to pay the applicable fees set forth when Client signed up for the Services (“Fees”). Payment Facilitator reserves the right to change Fees at any time upon thirty (30) days after sending notice (by any means, including but not limited to email, text, regular mail or otherwise) prior to the effective date of the change. Client’s continued use of the Services indicates Client’s consent to the change in Fees. If Client does not consent to the change in Fees, Client must close Client’s Sub-Merchant Account, otherwise we shall be permitted to change or add such Fees thirty days following sending of the notice. Client further agrees that if unusual or unexpected transaction activity occurs on Client’s Sub-Merchant Account, Payment Facilitator has the right to hold funds while Payment Facilitator conducts an investigation into the processing activity. Payment Facilitator also has the right to request and to receive from Client’s documentation to support the transaction activity, including, but not be limited to, invoices, signed sales receipts, shipping documentation, and any other relevant documentation pertaining to a transaction or transactions in question.
5. Deposit of Sub-Merchant Account Funds
Client will establish and maintain with an Automated Clearing House (“ACH”) receiving depository institution acceptable to Payment Facilitator’s Processors one or more commercial checking account(s) based in the United States to facilitate payment for Payment Transactions. Client will maintain sufficient funds in the account to accommodate all transactions, including, but not limited to, Fees, fines and chargebacks. Client irrevocably authorizes the debit of the account for chargebacks, Fees and any other penalties, fees or payments or monies due under this Agreement to Payment Facilitator or its Payment Facilitator Processors with respect to Client’s Sub-Merchant Account (collectively, “Indebtedness to Payment Facilitator”). Once Client’s bank account is validated, Payment Facilitator or Payment Facilitator’s Processor(s) will deposit to Client’s Sub-Merchant Account the amounts actually received by Payment Facilitator for completed transactions submitted through the Services no later than two days following the end of every business day. Payments to Client’s bank account will normally register within 2-3 business days. Each transaction will be considered complete when Payment Facilitator has received the funds and when such funds have been accepted by the designated bank or financial institution. Payment Facilitator shall have the right to deduct from Client’s Sub-Merchant Account: (i) following the end of each month during the term of this Agreement any Fees owing from Client to Payment Facilitator or any Payment Facilitator Processor; and (ii) immediately at any time, any Indebtedness to Payment Facilitator.
Should Payment Facilitator need to conduct an investigation or resolve any dispute related to Client’s Sub-Merchant Account (including but not limited to issues around possible Prohibited Transactions or other breaches by Client of this Agreement or applicable Payment Facilitator, Payment Facilitator Processor or Card Organization Rules), Payment Facilitator may defer payment or restrict access to Client’s funds for as long as Payment Facilitator deems necessary. Payment Facilitator also may defer payment or restrict access to Client’s funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
6. Sub-Merchant Account Activity
Client is responsible for monitoring Client’s transactions and ensuring that Payment Facilitator’s payments to Client are correct. Client agrees to contact Payment Facilitator immediately if Client discovers an error or an unauthorized transaction on Client’s Sub-Merchant Account. Client must notify Payment Facilitator of any errors in payments made to Client within thirty (30) days of the error or unauthorized transaction. Client’s failure to notify Payment Facilitator of any such errors within the applicable thirty (30) day period will constitute a waiver of any right or claim to amounts owed to Client.
Client is responsible for reconciling all transactions with Client’s Sub-Merchant Account and keeping permanent records of such transactions.
7. Reserve Account/Security Interest
For the purpose of providing a source of funds to pay damages which Payment Facilitator or its Payment Facilitator Processors may potentially suffer under this Agreement and to pay Indebtedness to Payment Facilitator or other amounts Client may owe Payment Facilitator under this Agreement or assessed by any Payment Facilitator Processor, a separate reserve account (the “Reserve Account”) may be established from time to time by Client, Payment Facilitator, or any Payment Facilitator Processor to secure Client’s current and/or future potential obligations as reasonably determined by Payment Facilitator or any Payment Facilitator Processor. The Reserve Account will be in an amount as reasonably determined by Payment Facilitator or its applicable Payment Facilitator Processor(s) to protect their present or future interests and may be raised, reduced or removed at any time by Payment Facilitator or any Payment Facilitator Processor, in Payment Facilitator’s sole discretion. If there are not sufficient funds in Client’s Reserve Account, Payment Facilitator has the right of recoupment and set-off and may fund the Reserve Account from any funding source associated with Client’s Sub-Merchant Account, including but not limited to any funds due to Client under this Agreement, or available in Client’s bank account. Client grants Payment Facilitator a security interest in and lien on any and all funds held in (a) any Reserve Account, (b) all funds at any time in the Sub-Merchant Account, regardless of the source of funds, and (c) any amounts due to Client under this Agreement. Client agrees to provide other security to Payment Facilitator upon request to secure Client’s obligations under this Agreement. This security interest may be exercised by Payment Facilitator or any Payment Facilitator Processor or any of Payment Facilitator or any Payment Facilitator Processor’s assigns, without notice or demand of any kind by making an immediate withdrawal, debit or freezing of Client’s assets. Payment Facilitator may also make reversals of deposits or transfers made to Client’s Sub-Merchant Account. Client agrees to execute any additional documentation required for Payment Facilitator to perfect Payment Facilitator’s security interest, including such form(s) of control agreement(s) as Payment Facilitator may from time to time require regarding dominion of the funds referenced in Sections 8(a), 8(b) and 8(c) hereof. Client further agrees to pay to Payment Facilitator upon demand any Indebtedness Owing to Payment Facilitator or other monies owing by Client to Payment Facilitator or any Payment Facilitator Processor pursuant to this Agreement or otherwise.
8. Honoring Cards
- Whenever possible, Client will identify the person presenting a Card and purporting to be a person authorized to use a Card and check the expiration date and signature on each Card. Client will not honor a Card if the Card has expired or if Client determines that the account number on the Card does not match the account number on the Card’s magnetic stripe or the account number is listed on a current Electronic Warning Bulletin file.
- Client is responsible for ensuring that the cardholder of each Card understands that Client is responsible for the transaction, including the goods or services that are the subject of the transaction. In addition, Client is solely responsible for all customer service issues relating to Client’s goods or services, including pricing, fulfillment, order cancellation, returns, refunds and adjustments, warranty, and support.
- Client will not add any amount to the posted price of goods or services Client offers as a condition of paying with a Card that is not consistent with the Card Organization Rules and laws.
- Client will properly disclose to the holder of each form of credit card, debit card or other card (each a “Card” and collectively, the “Cards”) that is or may be used in connection with any of the transactions subject to this Agreement (each a “Cardholder”), at the time of transaction, any limitation Client has on accepting returned merchandise. Client’s return policy must be in accordance with the Card Organization Rules. If Client’s refund policy prohibits returns or is unsatisfactory to the Cardholder, Client may still receive a Chargeback relating to such transactions.
- Client agrees to make a written receipt available to the Cardholder for any transaction. Client may provide the Cardholder the option to decline a written receipt. Client may also offer electronic receipts delivered by SMS or e-mail to the Cardholder.
9. Taxes
Client is responsible for collecting, reporting and remitting any taxes required to be collected, paid or withheld in connection with the Services (“Taxes”). Payment Facilitator is not responsible to determine whether or not Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction.
If in a given calendar year Client receives: (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Payment Facilitator or its Payment Facilitator processor(s) is authorized to report annually to the Internal Revenue Service (“IRS”), as required by law, Client’s name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments Client receives in a calendar year, and the total dollar amount of the payments Client receives for each month in a calendar year.
10. Returns
By using the Services, Client agrees to process returns of, and provide refunds and adjustments for, Client’s goods or services through Client’s Sub-Merchant Account in accordance with this Agreement, each Payment Facilitator Processor’s Rules and applicable Card Organization Rules.
11. Chargebacks
The amount of a transaction may be reversed or charged back to Client’s Sub-Merchant Account (each a “Chargeback”) for reasons, including, but not limited to, any one of the following: (a) an invalid Card account is submitted by Client; (b) neither the Cardholder nor a person authorized by the Cardholder received the goods or services requested; (c) the Cardholder disputes the quality of the goods or services received; (d) the Cardholder never received a credit for a returned item or a cancelled order; (e) the Cardholder was charged incorrectly; (f) the authorization code is invalid; (g) the Card was expired or not effective; (h) the transaction is disputed; (i) the transaction is reversed by the Card Organization, any Payment Facilitator Processor, or a financial institution for any reason, (j) the transaction was not authorized; or (k) the transaction is allegedly unlawful, suspicious, or believed by Payment Facilitator to be in violation of the terms of this Agreement.
For any transaction that results in a Chargeback, Payment Facilitator may withhold the Chargeback amount in the Reserve Account. Client may be subject to a chargeback on sales for a minimum period of 360 days from the date the sale was entered into the processing system. Payment Facilitator may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by each applicable Payment Facilitator Processor from Client’s Sub-Merchant Account, Client’s Reserve Account, if any, any proceeds due to Client, or Client’s bank account. If Client has pending Chargebacks or Payment Facilitator reasonably believes that a Chargeback is likely, Payment Facilitator may withhold or delay payments from Client’s Sub-Merchant Account for the later of: (i) 270 days following termination of this Agreement; (ii) 180 days from Client’s last Chargeback; or (iii) 30 days following Client’s delivery of written notification disputing the Chargeback in question and the basis therefor with appropriate documentation in accordance with Section 13 below. Client agrees to respond to all Chargebacks promptly. If Payment Facilitator is unable to recover funds related to a Chargeback for which Client is liable, Client will pay Payment Facilitator the full amount of the Chargeback immediately upon demand. Client agrees to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of Payment Facilitator related to Payment Facilitator’s efforts to collect any Sub-Merchant Account deficit balances unpaid by Client.
If Payment Facilitator determines that Client is incurring an excessive amount of Chargebacks, Client may be subject to a Card Organization’s monitoring program. Client is responsible for monitoring Client’s monthly chargeback percentage and developing chargeback reduction programs as required by the Card Organizations. Payment Facilitator may also establish controls or conditions governing Client’s Sub-Merchant Account, including but not limited to (a) an increase in processing fees, (b) creating a Reserve Account in an amount reasonably determined by Payment Facilitator to cover anticipated Chargebacks and related fees, (c) delaying payments, and (d) terminating or suspending the Services and this Agreement. Failure to establish such controls or conditions as established by Payment Facilitator within the specified period (or ten days following notification of such controls or conditions if no time period is specified) shall constitute a breach by Client of this Agreement.
12. Processing Errors
Client agrees to promptly notify Payment Facilitator of any errors within thirty (30) days after the date of the asserted error or missing transaction(s). If Client does not notify Payment Facilitator within the 30-day period, Payment Facilitator is not liable for, nor obligated to investigate, correct, such asserted error and Client agrees that all claims related to such error are waived. If Payment Facilitator discovers processing errors, it will attempt to rectify processing errors.
13. Privacy and Legal Notices; HIPAA, TCPA, FDCPA
Client agrees to keep information received from Cardholders confidential. Client will not disclose to any third party any Cardholder account information other personal information except in connection with the Services and in accordance with the Card Organization Rules or applicable law (including but not limited as required under the Health Insurance Portability and Accountability Act or “HIPAA”). Client must keep all Cardholder information in a secure manner to prevent disclosure to unauthorized parties. Client may not disclose or distribute any such information to a third party or use the information for marketing purposes unless Client receives the express consent of the user. Furthermore, Client agrees to be subject to Payment Facilitator’s privacy policy and any other legal notices located at www.swervepay.com.
Client agrees not to use the Services in violation of any local, state or Federal laws, rules or regulations, or orders, including, but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”), Fair Debt Collection Practices Act ("FDCPA") and HIPAA and its related Rules and Regulations, and agree to indemnify, defend and hold Payment Facilitator and its Affiliated Entities (defined below) harmless from and against all Losses (defined below) that are incurred, suffered or paid, directly or indirectly, by any of them in connection with, arising out of or resulting from any claim alleging improper or illegal use of any of the Services provided to Client and/or Client Customers by Payment Facilitator or any of its Affiliated Entities, including but not limited to any claims arising from following Client’s direction for communications to Client Customers as to frequency of sending messages by any medium, including but not limited to text, e-mail, facsimile or paper regarding any matter, including but not limited to past due sums, deposits for anticipated procedures, estimates of cost of procedures, appointment reminders, payment receipts or other communications. For purposes of Section 13, indemnification of Payment Facilitator and its Affiliated Entities includes, but is not limited to payment by Client of any judgment, settlement, claim, penalties and costs, interest, reasonable attorneys’ fees and cost of defense, if Payment Facilitator or an Affiliated Entity is named as a party to any action or suit related to delivery of communications to Client Customer or otherwise subject to this indemnification. In such an event, Payment Facilitator and its Affiliated Entities shall have the option at any time of either being defended by Client’s counsel or providing their own defense to the action (subject to regular monthly reimbursement from Client for costs and fees incurred, regardless of the outcome of such action). For purposes of this Section 13: (i) “Losses” means any and all losses, liabilities, damages, penalties, obligations, awards, fines, deficiencies, demands, interest, costs and expenses (including reasonable attorneys’ fees, consultants’ fees and other professional fees and disbursements); and (ii) “Affiliated Entity” shall mean any “affiliate” of Payment Facilitator (as such term is construed under Rule 405 promulgated under the Securities Act of 1933), as well as, without limitation, any independent contractor, business partner, solution extender, or service provider under contract with Payment Facilitator or assists Payment Facilitator in delivering any of the Services provided by Payment Facilitator pursuant to this Agreement.
14. Consent to Electronic Notices
From time to time, Payment Facilitator may be required to provide to Client certain notices, disclosures or information about Client’s Sub-Merchant Account or in connection with the Services. Client agrees that this information may be provided to Client by posting it on Payment Facilitator’s website or mobile app, or by sending Client an e-mail to the e-mail of record with Payment Facilitator when Client signed up for the Services. Notices provided to Client via e-mail will be deemed given and received on the transmission date of the e-mail. Notices posted to the website or mobile app will be deemed given and received within 24 hours of posting.
15. Compliance with Law: Payment Card Industry Data Security Standards Non-Disclosure & Storage of Cardholder and Transaction Information Requirements
While Payment Facilitator and/or its Affiliates use advanced security features to ensure the security and safety of Client’s personal information and that of Client Customers, Payment Facilitator cannot absolutely guarantee the security of any of such personal information from unauthorized access, loss or disclosure by third parties. Client confirms and certifies that: (a) Client is, and shall be, in full compliance during the term of this Agreement with all laws, statutes and federal and/or state regulations, as well as the Rules as may be applicable to Client, Client’s business and any Payment Transaction; (b) all acceptances of Cards as a form of payments via the Internet shall at a minimum, include the following information and processes on their Internet sites: (i) prominent display of Sub-Merchant name as “Merchant” and as the name that will appear on the cardholder statement, (ii) a complete description of good or services offered; (iii) delivery standards including method and time for delivery; (iv) terms and conditions of purchase, and export or legal descriptions; (v) return/refund policy described in reasonable details; (vi) opportunity to review and confirm order prior to order submission; (vii) secure method for payment data transmission; (viii) currency of transaction used to make payment (USD); (ix) disclosure of Sub-Merchant outlets to country of origin; (x) display of card association or payment network logos; (xi) clear disclosure of Sub-Merchant privacy policy; (xii) alternate Sub-Merchant contact info options; and (xiii) display of web hosting company contact information; (c) it (and any outside agent that it may utilize to submit Transactions to Payment Facilitator) complies and will comply with the Payment Card Data Security Standards (“PCI DSS”) and Sub-Merchant hereby agrees to pay any fines and penalties that may be assessed by Visa, MasterCard or Discover or any other Card Organization as a result of Sub-Merchant’s non-compliance with the requirements of PCI DSS, any data breaches, or by its failure to accurately validate its compliance. Sub-Merchant will review and monitor the requirements at http://www.visa.com/CISP, and http://www.pcisecuritystandards.org in order to determine the timeframes and mandates for compliance under PCI DSS. The foregoing is an on-going obligation during the term of this Agreement and as this Agreement may be renewed. Sub-Merchant acknowledges and understands that Sub-Merchant may be prohibited from participating in Visa, MasterCard or Discover or other Card Organization programs if it is determined that Sub-Merchant is non-compliant. The following lists certain (but not all) of the current PCI DSS requirements, all of which Sub-Merchant shall comply with, if applicable: (i) install and maintain a working network firewall to protect data accessible via the Internet; (ii) keep security patches up to date; (iii) encrypt stored data; (iv) encrypt data sent across networks; (v) use and regularly update anti-virus software; (vi) restrict access to data to business (“need to know”); (vii) assign a unique ID to each person with computer access to data; (viii) not use Payment Facilitator supplied defaults for system passwords and security parameters; (ix) track access data by unique ID; (x) maintain a policy that addresses information security for employees and contractors; and (xi) restrict physical access to Cardholder information. Sub-Merchant shall notify Payment Facilitator if it utilizes any third-party that provides payment related services, directly or indirectly, and/or stores, transmits, or processes Cardholder data. Sub-Merchant is responsible for ensuring compliance of any such third-parties with PCI DSS. In the event of the failure, including bankruptcy, insolvency, or other suspension of Sub-Merchant’s business operations, Sub-Merchant shall not sell, transfer, or disclose any materials that contain Cardholder account numbers, personal information, or other Cardholder transaction information to third-parties (collectively, “Cardholder Information”). Sub-Merchant on behalf of itself and each of its agents and Affiliates shall either return this Cardholder Information to Payment Facilitator, or provide Payment Facilitator with acceptable proof of destruction of Cardholder Information. If Sub-Merchant is undergoing a forensic investigation regarding PCI DSS compliance at the time Sub-Merchant executes this Agreement, then Sub-Merchant shall fully cooperate with the investigation until completed. Payment Facilitator warrants that it and each of its Affiliates complies with the applicable required PCI DSS regulations and that Payment Facilitator and each of its Affiliates is a PCI DSS validated service provider.
16. Termination of Services
Client may cancel the Services or terminate this Agreement at any time, with, or without cause. Cancellation of the Services will become immediate upon Client’s notice to Payment Facilitator. Cancellation of the Services or termination of this Agreement will not alter Client’s obligation to pay all amounts owed to Payment Facilitator, including any Fees, and Client will continue to be bound by this Agreement, which obligations shall survive any termination of this Agreement. Upon termination of this Agreement, the license granted under this Agreement shall cease and Payment Facilitator shall not be liable to Client or any third party for such termination or access to the Services.
Upon termination of this Agreement, any pending transactions will be cancelled unless processed by Payment Facilitator (or its Payment Facilitator Processors) in Payment Facilitator’s sole discretion. Subject to Section 18 below, any funds that Payment Facilitator is holding in custody for Client at the time of termination, less any applicable Fees chargebacks, penalties or payments due under this Agreement, will be paid out to Client according to Client’s payment schedule (consistent with past practice and subject to Payment Facilitator’s rights to withhold payment for monies owed to Payment Facilitator or reserves established by Payment Facilitator). If an investigation is pending at the time Client closes Client’s Sub-Merchant Account, Payment Facilitator may hold Client’s funds until the investigation is completed. Payment Facilitator may hold all funds for up to 180 days from the date of the last transaction or 180 days from the date of the last chargeback, whichever is the later.
Payment Facilitator may terminate this Agreement and close Client’s Sub-Merchant Account for any reason or no reason at any time upon notice to Client, and without liability to Client for closing Client’s Sub-Merchant Account. Payment Facilitator may also suspend or terminate the Services and access to Client’s Sub-Merchant Account if Client: (a) have violated the terms of this Agreement, the Card Organization Rules, any other agreement Client has with Payment Facilitator, (b) pose an unacceptable credit or fraud risk to Payment Facilitator or any Payment Facilitator Processor, as determined by Payment Facilitator in its sole discretion, (c) fall outside the credit policy approved by a Payment Facilitator Processor, of if requested by a Card Organization or governmental entity, (d) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct, or (e) breach any of Client’s obligations under this Agreement. Payment Facilitator also reserves the right to add Client’s Sub-Merchant Account to the Terminated Merchant File, if Client’s Sub-Merchant Account meets the criteria defined by MasterCard.
17. Effect of Termination
Any termination of this Agreement does not relieve Client of any obligations to pay any Fees, penalties or costs accrued prior to the termination and any other amounts owed by Client to Payment Facilitator as provided in this Agreement. Client will continue to be responsible for any and all Chargebacks, credits and adjustments and all other amounts then due, or which later become due. In connection with termination, Payment Facilitator or its applicable Payment Facilitator Processor(s) may require the establishment and maintenance of a Reserve Account by Client in accordance with Section 7.
Subject to the terms and conditions of this Agreement, Payment Facilitator grants Client a personal, limited, non-exclusive, non-transferable license, during such time that Client satisfies the conditions set forth in this Agreement, to electronically access and use the Services solely for the purpose described herein. Except as expressly allowed herein or by applicable law, Client is not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following: (i) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way any components of the Services; (ii) permit any third party to benefit from the use or functionality of the Services via a rental, lease, timesharing, service bureau, or other arrangement; (iii) transfer any of the rights granted to Client under this Agreement; (iv) work around any technical limitations in the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer the any component of Services except as otherwise permitted by applicable law; (v) perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or the use of the Services by Payment Facilitator’s other licensees or customers; or (vi) export the Services, directly or indirectly.
18. Reservation of Rights and Ownership
Payment Facilitator reserves all rights not expressly granted to Client in this Agreement. Components of the Services are protected by copyright, trade secret and other intellectual property laws. Payment Facilitator and its licensors own the title, copyright, and other worldwide intellectual property rights in the Services and all copies of the Services. This Agreement does not grant Client any rights to trademarks or service marks of Payment Facilitator. This Agreement does not limit any rights that Payment Facilitator may have under trade secret, copyright, patent or other laws.
19. Privacy & Use of Client’s Information
The Services may utilize SMS messages delivered through wireless service providers, such as AT&T, Sprint, Verizon, etc. Client acknowledges that any SMS message goes through Client and the message recipient’s wireless service provider’s systems. The privacy statement of each associated wireless service provider applies as the message passes through those systems. As a requirement to permit usage of SMS systems some wireless service providers may require that Payment Facilitator disclose to them information about users of the Services and the nature of business to be conducted. In this situation the information will be used to ensure legitimate use of the SMS systems and not for marketing purposes. Client acknowledges and agrees that Payment Facilitator may provide information about Client to wireless service providers as described above. Client also acknowledges that in accessing the Services Client may upload or enter certain data from Client’s account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. Client may be made aware of or offered services, features, products, applications, online communities, or promotions provided by Payment Facilitator or Payment Facilitator’s Affiliates. Installing this application grants Payment Facilitator the right to send the identifiers for Client’s mobile device to third parties for the use of advertising purposes. Client is responsible for securely managing access to Client’s data and to the Services. Client agrees to be bound by the applicable Payment Facilitator privacy policy, as it may be amended from time to time in accordance with its terms.
20. Disclaimer of Warranties
THE SERVICES AND ANY CONTENT ACCESSIBLE THROUGH THE SERVICES ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYMENT FACILITATOR, ITS AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, PAYMENT FACILITATOR PROCESSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DEALERS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) DISCLAIM ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, CONTENT, AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NON- INFRINGEMENT. PAYMENT FACILITATOR DOES NOT WARRANT THAT THE SOFTWARE, THE SERVICES, THE SWIPE DEVICE, THIRD PARTY SERVICES OR ANY ONLINE SERVICES ARE SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, OR ERRORS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. FURTHER, PAYMENT FACILITATOR DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT OR DATA THROUGH THE SERVICES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT. THIS WARRANTY GIVES CLIENT SPECIFIC LEGAL RIGHTS, AND CLIENT MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
21. Limitation of Liability and Damages
CLIENT AGREE THAT IN NO EVENT WILL PAYMENT FACILITATOR, ANY PAYMENT FACILITATOR PROCESSOR OR ANY AFFILIATE OF PAYMENT FACILITATOR BE LIABLE FOR ANY LOSS, COST, LIABILITY OR DAMAGE INCURRED AS A RESULT OF YOUR USE OF THE SERVICES, THE TERMINATION OF SERVICES OR PARTICIPATION IN THIRD PARTY SERVICES. THE ENTIRE CUMULATIVE LIABILITY OF PAYMENT FACILITATOR, PAYMENT FACILITATOR’S AFFILIATES, ITS SUPPLIERS AND PAYMENT FACILITATOR PROCESSORS FOR ANY REASON ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OF THE SERVICES SHALL BE LIMITED AS PROVIDED HEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYMENT FACILITATOR, ITS AFFILIATES, ITS PAYMENT FACILITATOR PROCESSORS AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, THE LOSS, CORRUPTION OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS, USE OF THE SOFTWARE WITH HARDWARE OR OTHER SOFTWARE THAT DOES NOT MEET PAYMENT FACILITATOR’S SYSTEMS REQUIREMENTS OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY OF PAYMENT FACILITATOR, ITS AFFILIATES, ITS SUPPLIERS, ITS PAYMENT FACILITATOR PROCESSORS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CLIENT. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PAYMENT FACILITATOR AND CLIENT. PAYMENT FACILITATOR WOULD NOT HAVE PROVIDED THE SERVICES WITHOUT SUCH LIMITATIONS.
22. Consent
Client’s consent to do business electronically and receive electronic communications from Payment Facilitator, and Payment Facilitator’s agreement to do so covers all transactions Client conducts through the Services for as long as Client remains a licensee of the Services. If Client later decides that Client does not want to receive future communications electronically, Client may contact Payment Facilitator with withdrawal in writing of Client’s consent and discontinue the use of the Services.
23. Indemnification
Client agrees to indemnify, defend and hold Payment Facilitator, its Affiliates, its Payment Facilitator Processors, contractors, employees, agents and its third party suppliers, licensors, attorneys and partners (collectively, the “Payment Facilitator Indemnitees”) harmless from any and all claims, losses, damages, and liabilities, costs and expenses, including without limitation legal fees and expenses, arising out of or related to Client’s use or misuse of the Services, any violation by Client of this Agreement, or any breach of the representations, warranties, and covenants made by Client in this Agreement. Payment Facilitator reserves the right, at Client’s expense, to assume the exclusive defense and control of any matter for which Client is required to indemnify any of Payment Facilitator Indemnitees, including rights to settle, and Client agrees to cooperate with the defense and settlement of these claims. Payment Facilitator will use reasonable efforts to notify Client of any claim, action, or proceeding brought by a third party that is subject to the foregoing indemnification upon becoming aware of it.
24. Amendment
Please review the Agreement periodically on Payment Facilitator’s website provided to Client for additional terms and changes. Payment Facilitator has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to, Fees, terms, Internet-based services, pricing, technical support options, and other product-related policies, at any time upon notice by any means Payment Facilitator determines in its discretion to be reasonable. Client’s continued use of the Services after Payment Facilitator’s publication of any such changes shall constitute Client’s acceptance of this Agreement as modified.
25. Third Party Services
In connection with Client’s use of the Services, Client may be made aware of services, products, offers and promotions provided by third parties, and not by Payment Facilitator (“Third Party Services”). If Client decides to use Third Party Services, Client is responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing any Third Party Services. Client authorizes Payment Facilitator to use and disclose Client’s contact information, including name and address, for the purpose of making the Third Party Services Client chooses available to Client. Client agrees that the third party, and not Payment Facilitator, is responsible for the performance of the Third Party Services.
26. Export Restrictions
Client acknowledges that the Services are subject to the U.S. export controls regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII) and that Client will comply with all applicable laws and regulations. Client will not export or re-export the Services, or portion thereof, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end user, or to any end user who Client knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons.
27. Representations and Warranties
Client represents and warrants to Payment Facilitator that: (a) if an individual, Client is at least eighteen (18) years of age; (b) Client is eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by Client when Client registered is Client’s name or business name under which Client sells goods and services; (d) any sales transaction submitted by Client will represent a bona fide sale by Client; (e) any sales transactions submitted by Client will accurately describe the goods and/or services sold and delivered to a purchaser; (f) Client will fulfill all of Client’s obligations to each of Client Customers for which Client submits a transaction and will be responsible for and resolve any customer dispute or complaint directly with the purchaser and will be financially liable to Payment Facilitator for transactions entered into with purchasers; (g) Client and all transactions initiated by Client will comply with all federal, state, and local laws, rules, and regulations applicable to Client and/or Client’s business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no sales transaction submitted by Client through the Services will represent a sale to any principal, partner, proprietor, or owner of Client’s entity or any of Client’s other Affiliates; (i) Client will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (j) Client’s use of the Services will be in compliance with this Agreement; (k) Client agrees to follow the applicable Card brand operating Rules and regulations; and (l) Client is not engaged in any of the businesses or in any of the activities listed on Exhibit A, attached hereto and incorporated herein by reference.
28. Miscellaneous
Except as expressly set forth in this Agreement, this Agreement is a complete statement of the agreement between Client and Payment Facilitator and sets forth the entire liability of Payment Facilitator, its Payment Facilitator Processors, its Affiliates and its suppliers and Client’s exclusive remedy with respect to the Services and Third Party Services and their use. The suppliers, agents, employees, distributors, and dealers of Payment Facilitator are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Payment Facilitator. Any waiver of the terms herein by Payment Facilitator must be in a writing signed by an authorized officer of Payment Facilitator and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement may not be assigned by Client without the prior written approval of Payment Facilitator, but may be assigned without Client’s consent by Payment Facilitator without restriction. Any assignment in violation of this Section will be void. This Agreement will be governed by Illinois law, without regard to its conflicts of law principles, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in Cook County, Illinois or federal court for the Northern District of Illinois for the resolution of any dispute with respect to the this Agreement or any of the Services called for herein. Client hereby waives Client’s right to trial by jury with respect to any judicial proceeding relative to this Agreement or any of the Services called for herein. For purposes of this Agreement, the term “Affiliate” shall mean a person or entity controlled by or under common control with another person or entity, as the term “affiliate” is construed under Rule 405 promulgated under the Securities Act of 1933 as amended. All rights and obligations of the parties hereto accruing under this Agreement during the term of this Agreement shall survive any termination of this Agreement. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. This Agreement may be executed in several counterparts, whether by original, photocopy, facsimile, email pdf or electronic signature, both of which when taken together shall constitute one valid binding Agreement. By clicking via the internet or other electronic media that Client agrees to the terms of this Agreement, this shall constitute the counterpart electronic signature by both Client and Payment Facilitator to be bound by the terms of this Agreement. Any notice required hereunder shall be deemed given if delivered in writing in person or sent by email to the email address of the other party set forth below or if sent by Federal Express or other bonded courier one business day after sent via next business day or same business day delivery to the address of the party set forth below to three business days after deposit in the U.S. Mail by either registered or certified mail, addressed to the party entitled to notice at the address set forth below, or if a party delivers notice of a change in address, then the delivery shall be made to the most recent address provided by notice of the party changing his, her or its address as set forth in such notice. If no address is designated by Client below, then the address shall be Client’s main corporate address as set forth on Client’s main corporate website.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date of full execution of this Agreement.
PAYMENT FACILITATOR: | CLIENT: |
SwervePay, LLC | {{{Business_Legal_Name}}} |
By: | By: {{{Business_Contact_Name}}} |
Its: | Its: |
Date of Execution: | Date of Execution: {{{Todays_Date}}} |
Address: 38896 Cedarcrest Drive Lake Villa, IL 60046 | Address: {{{Business_Street_Address}}} {{Business_City}}, {{Business_State}} {{Business_ZipCode}} |
E-Mail: | Email: {{{Business_Contact_Email_Address}}} |
EIN: {{{Business_Tax_ID}}} |
15807945
EXHIBIT A
PROHIBITED BUSINESSES AND ACTIVITIES
The following businesses and activities are strictly prohibited, unless otherwise agreed to by Payment Facilitator and Payment Facilitator Processors:
- Age Restricted Products or Services
- Any business where the anticipated % of International Card Sales is expected to be greater than 20% of total sales
- Bail Bond Services or Bankruptcy Lawyers
- Career Placement or Advice Center Businesses
- Crowd Sourced Fundraising
- Dating Services
- Delayed Delivery Businesses where the good or service provided is not shipped, delivered or fulfilled when the card transaction is processed but is to occur at a future date
- Online Personal Computer Technical Support
- Personal Enhancement Products and/or Nutraceuticals
- Psychic Services
- Shipping or Forwarding Brokers
- Travel Agencies or Tour Operators
- Any product, service or activity that is deceptive, unfair, predatory or prohibited by one or more Card Brands
- Any merchant selling goods or services that represent a violation of any law, statute or regulation
- Any merchant operating outside the United States
- Any merchant submitting sales for payment that resulted from another commercial entity providing goods or services to the cardholder, including those businesses that may otherwise qualify themselves as a Payment Service Company or Payment Facilitator
- Any 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 merchants accepting a card as payment for a dishonored check or for an item deemed uncollectible by another merchant
- Loan payments conducted on a Visa branded credit card
- Adult entertainment and/or adult content websites including Electronic Commerce adult content (videotext) merchants that would include MCC’s 5967,7273 and 7841
- Buyer Clubs/Membership Clubs
- 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
- Gambling Activities and Establishments including MCC 7995, including lotteries, internet gaming, daily fantasy sports, contests, sweepstakes, “special incentives” or offering of prizes as an inducement to purchase goods or services
- Infomercial merchants
- Internet Pharmacies
- Multi-Level Marketing Businesses
- Outbound Telemarketers and Telecom merchants including MCC’s 4814,4816, and 5966
- Payment Facilitators
- Rebate-Based Businesses
- Up-Selling merchants
- Any merchant that accepts a card at a scrip-dispensing terminal
- Airlines including Charter Airlines
- Bestiality
- Bidding Fee Auctions including Penny Auctions
- Brand or Reputational damaging, potential or otherwise, activities including Child Pornography, Escort Services, Mail Order Brides, Occult
- Collection Agencies
- Commodity Trading or Security Trading
- Credit Counseling or Credit Repair Services
- Credit Protection or Identity Theft Protection Services
- Cruise Lines
- Currency Exchanges or Dealers
- Debt Elimination, Debt Reduction or Debt Consulting Services
- Digital Wallet or Prepaid Companies
- Discount Buying Memberships/Clubs
- Discount Medical or Dental plans including Discount Insurance
- Discount Coupon merchants or Online Sites
- Distressed Property Sales and/or Marketing
- Drug Paraphernalia
- e-Cigarettes
- Firearms and weapons including Ammunition
- 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
- Marijuana dispensaries and related products or services
- Money Transfer, Wire Transfers, Money Orders, Transmitters, and Check Cashing including merchants required to be registered as Money Service Business
- ”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 periodically and/or a significantly larger amount
- Pawn Shop
- Prepaid Phone Cards
- Prepaid Phone Services
- Pseudo Pharmaceuticals
- 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
- Transacting Virtual Currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world
21916745.3
Effective January 30, 2018 to August 14, 2019
DownloadSummary of changes
Jan 2018
Table of Contents
SwervePay Sub-Merchant Processing Agreement
This SwervePay Sub-Merchant Processing Agreement (“Agreement”) is effective as of the date of full execution of this Agreement (“Effective Date”) between the customer designated below (“Client”) and SwervePay, LLC (“Payment Facilitator”) governing Client’s use of Payment Facilitator’s payment processing services to accept credit cards, debit cards, ACH transactions and/or checks (together, the “Services” and individually, each a “Service”).
CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY USING THE SERVICES CLIENT ACCEPT THESE TERMS AND CONDITIONS. IF CLIENT DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY DISCONTINUE USE OF THE SERVICES.
Services
The Services allow Client to accept payment card transactions, ACH transactions and other electronic payment transactions (collectively, “Payment Transactions”) into Client’s bank account(s) or a Payment Facilitator account (as determined by Payment Facilitator in its sole discretion) on a compatible computer and/or mobile device. The Services are licensed to Client, and Payment Facilitator owns all copyright, trade secret, patent, and other proprietary rights in the Services. Payment Facilitator is not a bank; Payment Facilitator is a registered payment facilitator that processes or directs the processing of payments Client receives from Client customers (each “Client Customer” and collectively, “Client Customers”). To do this, Payment Facilitator enters into agreements with other processors and banks. Client will be required to provide certain personal and/or business information to open an account with Payment Facilitator, which must be approved by Payment Facilitator prior to using the Services (the “Sub-Merchant Account”). Client must provide accurate and complete information to Payment Facilitator when opening the Sub-Merchant Account. Payment Facilitator may forward some or all of this information to its processor and to any other person or entity that has involvement in connection with the processing of any of Client’s Payment Transactions, including Client’s bank or other financial institutions and Card Organizations. If Client’s request to open a Sub-Merchant Account is approved, Payment Facilitator may request additional information from Client at any time. Payment Facilitator may also periodically obtain reports to determine whether Client continues to meet the requirements for a Sub-Merchant Account. In addition, Client may be required to enter into additional agreements as required by Payment Facilitator’s processors (each a “Payment Facilitator Processor” and collectively, “Payment Facilitator’s Processors”) or the card organizations, such as MasterCard, Visa, Discover Network or American Express (the “Card Organizations”). The Card Organizations and Payment Facilitator Processors require that Client and Payment Facilitator comply with all of their respective applicable bylaws, rules and regulations, which may be amended at any time (collectively, the “Rules”). Payment Facilitator may amend this Agreement to comply with such amendments. Portions of these rules and regulations applicable to Visa and MasterCard are available on the Visa and MasterCard websites.
Swipe Device
Once Client’s Sub-Merchant Account is approved, and if purchased (or alternate arrangements) or required for Client’s account, the swipe device(s) will be sent to Client at the address provided. Payment Facilitator does not warrant that the swipe device or the Services will be compatible with Client’s computer, mobile device or third-party carrier. Client’s use of any swipe device and the Services may also be subject to the terms of Client’s mobile device manufacturer and Client’s carrier. Payment Facilitator shall not be responsible for any damages caused by defects associated with any swipe devices used by Client with respect to Client’s business or any hacking of any of such swipe devices.
Sub-Merchant Account
By establishing a Sub-Merchant Account, Client confirms that Client is 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 it operates. The Services may only be used within the United States of America. Client agrees that Payment Facilitator is authorized to contact and share information about Client’s Sub-Merchant Account with Client’s bank or other financial institution and all Card Organizations. Upon approval of Client’s Sub-Merchant Account and by accepting the terms of this Agreement, Client authorizes Payment Facilitator to hold, receive, and disburse funds on Client’s behalf. Client may terminate this authorization by closing Client’s Sub-Merchant Account. Client agrees that in using the Services, Client will do the following:
●	Only send SMS receipts to Client Customers who have requested a receipt be delivered in that manner;
●	Comply with all applicable laws and regulations and all requirements of: (i) Card Organizations applicable to merchants; and (ii) all Payment Facilitator Processors.
●	Maintain the security of account login information Client receives as part of Client’s use of the Services.
●	Client agrees that if Client loses Client’s computer or mobile device, or Client has reason to believe that Client’s Sub-Merchant Account is no longer secure, Client will immediately notify Payment Facilitator;
●	Not accept payments in connection with any illegal activity, or any activity that is inconsistent with Client’s type of business;
●	Not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (i) adult content; (ii) airline or cruise line; (iii) collection agency; (iv) credit counseling or identity protection services; (v) debt elimination or reduction services; (vi) distressed property sales and marketing; (vii) gambling establishments or gambling; (viii) no card present tobacco or pharmaceutical sales; (ix) multilevel marketing programs or goods or services sold through such systems; (x) goods or services sold through rebate or upsell programs; (xi) timeshare resales and related marketing of goods, services or properties; (xii) sales to from operations outside the United States of America; (xiii) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; (xiv) acceptance of credit cards, debit cards or other forms of payment at scrip dispensing terminals; (xv) buyer club activities or buyer club memberships; (xvi) inbound or outbound telemarketing services; or (xvii) continuity or subscription services generated from direct marketing activities.
●	Use the Services only for lawful merchant activities as approved by Payment Facilitator and not in a manner that results in or may result in complaints, disputes, chargebacks, fees, fines or penalties; and
●	Not knowingly submit any sales transaction (i) that adds any surcharge to the transaction, except to the extent authorized by the Rules or applicable law, (ii) that adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately, (iii) that represents the refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible or arises from the dishonor of a Cardholder’s personal check or from the acceptance of a Card at a terminal that dispenses scrip, (iv) that is not a valid transaction between the Client and a bona fide Cardholder, (v) that Client knows or should have known to be fraudulent or not authorized by the Cardholder, or that Client knows or should have known to be authorized by a Cardholder colluding with Client for a fraudulent purpose, (vi) until after the products are shipped the services are performed, and/or Client has completed the transaction, unless Client has obtained Cardholder consent for a recurring transaction, (vii) where a valid authorization was required but not obtained, (viii) where multiple authorizations for amounts less than the total sale amount have been obtained, (ix) which results in a disbursement of cash or cash equivalent to a Cardholder or (x) that establishes a maximum dollar sale transaction amount, except to the extent authorized by the Rules.
●	Not submit any refund transaction: (i) that does not correlate to an original sales transaction from the Cardholder, (ii) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Cardholder for postage paid by the Cardholder to return merchandise in accordance with a policy applied consistently by Client to all Client Customers, (iii) for returned products that were acquired in a cash purchase from Client, (iv) that would cause an overdraft, or (v) more than three (3) business days following either: (A) a regulatory requirement granting a Cardholder’s right to a refund; or (B) a non-disputed Cardholder request.
●	Not use any Cardholder data or other transaction data received from Payment Facilitator or Payment Facilitator Processor for any purpose not authorized by this Agreement.
●	Not disclose any Cardholder data or other transaction data to any entity except for necessary disclosures to affected Cardholders, and through Payment Facilitator Processor to affected Card Organization entities.
●	Not provide Payment Facilitator any inaccurate, incomplete, or misleading information.
●	Provide Payment Facilitator with timely notification of events that have caused or could cause material changes in Client’s ability to fulfill Client’s obligations under this Agreement, including but not limited to (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; or (iii) actions by governmental or non-governmental agencies.
●	Not transfer or attempt to transfer Client’s financial liability by asking or requiring Cardholders to waive their dispute rights.
●	Not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
●	Not submit transactions for entities that do not have their principal places of business in the United States
●	Not use the Services to process cash advances.
Unauthorized Use, Compliance with Law
Client may only use the Services in compliance with all laws, rules, and regulations applicable to the use of the Services. Payment Facilitator may choose not to authorize or settle any transaction submitted to Payment Facilitator if Payment Facilitator believes the transaction is in violation of this Agreement or may cause harm to Client, Client Customers, Payment Facilitator, or Payment Facilitator’s processors. Client expressly authorizes Payment Facilitator to share information about Client, Client’s Sub-Merchant Account or Client’s transactions with Client’s bank(s) and other financial institutions and with law enforcement if Payment Facilitator believes the Services have been used for an illegal, unauthorized or criminal purpose.
Client agrees to pay the applicable fees set forth when Client signed up for the Services (“Fees”). Payment Facilitator reserves the right to change Fees at any time upon thirty (30) days after sending notice (by any means, including but not limited to email, text, regular mail or otherwise) prior to the effective date of the change. Client’s continued use of the Services indicates Client’s consent to the change in Fees. If Client does not consent to the change in Fees, Client must close Client’s Sub-Merchant Account, otherwise we shall be permitted to change or add such Fees thirty days following sending of the notice. Client further agrees that if unusual or unexpected transaction activity occurs on Client’s Sub-Merchant Account, Payment Facilitator has the right to hold funds while Payment Facilitator conducts an investigation into the processing activity. Payment Facilitator also has the right to request and to receive from Client’s documentation to support the transaction activity, including, but not be limited to, invoices, signed sales receipts, shipping documentation, and any other relevant documentation pertaining to a transaction or transactions in question.
Deposit of Sub-Merchant Account Funds
Client will establish and maintain with an Automated Clearing House (“ACH”) receiving depository institution acceptable to Payment Facilitator’s Processors one or more commercial checking account(s) based in the United States to facilitate payment for Payment Transactions. Client will maintain sufficient funds in the account to accommodate all transactions, including, but not limited to, Fees, fines and chargebacks. Client irrevocably authorizes the debit of the account for chargebacks, Fees and any other penalties, fees or payments or monies due under this Agreement to Payment Facilitator or its Payment Facilitator Processors with respect to Client’s Sub-Merchant Account (collectively, “Indebtedness to Payment Facilitator”). Once Client’s bank account is validated, Payment Facilitator or Payment Facilitator’s Processor(s) will deposit to Client’s Sub-Merchant Account the amounts actually received by Payment Facilitator for completed transactions submitted through the Services no later than two days following the end of every business day. Payments to Client’s bank account will normally register within 2-3 business days. Each transaction will be considered complete when Payment Facilitator has received the funds and when such funds have been accepted by the designated bank or financial institution. Payment Facilitator shall have the right to deduct from Client’s Sub-Merchant Account: (i) following the end of each month during the term of this Agreement any Fees owing from Client to Payment Facilitator or any Payment Facilitator Processor; and (ii) immediately at any time, any Indebtedness to Payment Facilitator.
Should Payment Facilitator need to conduct an investigation or resolve any dispute related to Client’s Sub-Merchant Account (including but not limited to issues around possible Prohibited Transactions or other breaches by Client of this Agreement or applicable Payment Facilitator, Payment Facilitator Processor or Card Organization Rules), Payment Facilitator may defer payment or restrict access to Client’s funds for as long as Payment Facilitator deems necessary. Payment Facilitator also may defer payment or restrict access to Client’s funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
Sub-Merchant Account Activity
Client is responsible for monitoring Client’s transactions and ensuring that Payment Facilitator’s payments to Client are correct. Client agrees to contact Payment Facilitator immediately if Client discovers an error or an unauthorized transaction on Client’s Sub-Merchant Account. Client must notify Payment Facilitator of any errors in payments made to Client within thirty (30) days of the error or unauthorized transaction. Client’s failure to notify Payment Facilitator of any such errors within the applicable thirty (30) day period will constitute a waiver of any right or claim to amounts owed to Client.
Client is responsible for reconciling all transactions with Client’s Sub-Merchant Account and keeping permanent records of such transactions.
Reserve Account/Security Interest
For the purpose of providing a source of funds to pay damages which Payment Facilitator or its Payment Facilitator Processors may potentially suffer under this Agreement and to pay Indebtedness to Payment Facilitator or other amounts Client may owe Payment Facilitator under this Agreement or assessed by any Payment Facilitator Processor, a separate reserve account (the “Reserve Account”) may be established from time to time by Client, Payment Facilitator, or any Payment Facilitator Processor to secure Client’s current and/or future potential obligations as reasonably determined by Payment Facilitator or any Payment Facilitator Processor. The Reserve Account will be in an amount as reasonably determined by Payment Facilitator or its applicable Payment Facilitator Processor(s) to protect their present or future interests and may be raised, reduced or removed at any time by Payment Facilitator or any Payment Facilitator Processor, in Payment Facilitator’s sole discretion. If there are not sufficient funds in Client’s Reserve Account, Payment Facilitator has the right of recoupment and set-off and may fund the Reserve Account from any funding source associated with Client’s Sub-Merchant Account, including but not limited to any funds due to Client under this Agreement, or available in Client’s bank account. Client grants Payment Facilitator a security interest in and lien on any and all funds held in (a) any Reserve Account, (b) all funds at any time in the Sub-Merchant Account, regardless of the source of funds, and (c) any amounts due to Client under this Agreement. Client agrees to provide other security to Payment Facilitator upon request to secure Client’s obligations under this Agreement. This security interest may be exercised by Payment Facilitator or any Payment Facilitator Processor or any of Payment Facilitator or any Payment Facilitator Processor’s assigns, without notice or demand of any kind by making an immediate withdrawal, debit or freezing of Client’s assets. Payment Facilitator may also make reversals of deposits or transfers made to Client’s Sub-Merchant Account. Client agrees to execute any additional documentation required for Payment Facilitator to perfect Payment Facilitator’s security interest, including such form(s) of control agreement(s) as Payment Facilitator may from time to time require regarding dominion of the funds referenced in Sections 8(a), 8(b) and 8(c) hereof. Client further agrees to pay to Payment Facilitator upon demand any Indebtedness Owing to Payment Facilitator or other monies owing by Client to Payment Facilitator or any Payment Facilitator Processor pursuant to this Agreement or otherwise.
Honoring Cards
Whenever possible, Client will identify the person presenting a Card and purporting to be a person authorized to use a Card and check the expiration date and signature on each Card. Client will not honor a Card if the Card has expired or if Client determines that the account number on the Card does not match the account number on the Card’s magnetic stripe or the account number is listed on a current Electronic Warning Bulletin file.
Client is responsible for ensuring that the cardholder of each Card understands that Client is responsible for the transaction, including the goods or services that are the subject of the transaction. In addition, Client is solely responsible for all customer service issues relating to Client’s goods or services, including pricing, fulfillment, order cancellation, returns, refunds and adjustments, warranty, and support.
Client will not add any amount to the posted price of goods or services Client offers as a condition of paying with a Card that is not consistent with the Card Organization Rules and laws.
Client will properly disclose to the holder of each form of credit card, debit card or other card (each a “Card” and collectively, the “Cards”) that is or may be used in connection with any of the transactions subject to this Agreement (each a “Cardholder”), at the time of transaction, any limitation Client has on accepting returned merchandise. Client’s return policy must be in accordance with the Card Organization Rules. If Client’s refund policy prohibits returns or is unsatisfactory to the Cardholder, Client may still receive a Chargeback relating to such transactions.
Client agrees to make a written receipt available to the Cardholder for any transaction. Client may provide the Cardholder the option to decline a written receipt. Client may also offer electronic receipts delivered by SMS or e-mail to the Cardholder.
Taxes
Client is responsible for collecting, reporting and remitting any taxes required to be collected, paid or withheld in connection with the Services (“Taxes”). Payment Facilitator is not responsible to determine whether or not Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction.
If in a given calendar year Client receives: (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Payment Facilitator or its Payment Facilitator processor(s) is authorized to report annually to the Internal Revenue Service (“IRS”), as required by law, Client’s name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments Client receives in a calendar year, and the total dollar amount of the payments Client receives for each month in a calendar year.
Returns
By using the Services, Client agrees to process returns of, and provide refunds and adjustments for, Client’s goods or services through Client’s Sub-Merchant Account in accordance with this Agreement, each Payment Facilitator Processor’s Rules and applicable Card Organization Rules.
Chargebacks
The amount of a transaction may be reversed or charged back to Client’s Sub-Merchant Account (each a “Chargeback”) for reasons, including, but not limited to, any one of the following: (a) an invalid Card account is submitted by Client; (b) neither the Cardholder nor a person authorized by the Cardholder received the goods or services requested; (c) the Cardholder disputes the quality of the goods or services received; (d) the Cardholder never received a credit for a returned item or a cancelled order; (e) the Cardholder was charged incorrectly; (f) the authorization code is invalid; (g) the Card was expired or not effective; (h) the transaction is disputed; (i) the transaction is reversed by the Card Organization, any Payment Facilitator Processor, or a financial institution for any reason, (j) the transaction was not authorized; or (k) the transaction is allegedly unlawful, suspicious, or believed by Payment Facilitator to be in violation of the terms of this Agreement.
For any transaction that results in a Chargeback, Payment Facilitator may withhold the Chargeback amount in the Reserve Account. Client may be subject to a chargeback on sales for a minimum period of 360 days from the date the sale was entered into the processing system. Payment Facilitator may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by each applicable Payment Facilitator Processor from Client’s Sub-Merchant Account, Client’s Reserve Account, if any, any proceeds due to Client, or Client’s bank account. If Client has pending Chargebacks or Payment Facilitator reasonably believes that a Chargeback is likely, Payment Facilitator may withhold or delay payments from Client’s Sub-Merchant Account for the later of: (i) 270 days following termination of this Agreement; (ii) 180 days from Client’s last Chargeback; or (iii) 30 days following Client’s delivery of written notification disputing the Chargeback in question and the basis therefor with appropriate documentation in accordance with Section 13 below. Client agrees to respond to all Chargebacks promptly. If Payment Facilitator is unable to recover funds related to a Chargeback for which Client is liable, Client will pay Payment Facilitator the full amount of the Chargeback immediately upon demand. Client agrees to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of Payment Facilitator related to Payment Facilitator’s efforts to collect any Sub-Merchant Account deficit balances unpaid by Client.
If Payment Facilitator determines that Client is incurring an excessive amount of Chargebacks, Client may be subject to a Card Organization’s monitoring program. Client is responsible for monitoring Client’s monthly chargeback percentage and developing chargeback reduction programs as required by the Card Organizations. Payment Facilitator may also establish controls or conditions governing Client’s Sub-Merchant Account, including but not limited to (a) an increase in processing fees, (b) creating a Reserve Account in an amount reasonably determined by Payment Facilitator to cover anticipated Chargebacks and related fees, (c) delaying payments, and (d) terminating or suspending the Services and this Agreement. Failure to establish such controls or conditions as established by Payment Facilitator within the specified period (or ten days following notification of such controls or conditions if no time period is specified) shall constitute a breach by Client of this Agreement.
Processing Errors
Client agrees to promptly notify Payment Facilitator of any errors within thirty (30) days after the date of the asserted error or missing transaction(s). If Client does not notify Payment Facilitator within the 30-day period, Payment Facilitator is not liable for, nor obligated to investigate, correct, such asserted error and Client agrees that all claims related to such error are waived. If Payment Facilitator discovers processing errors, it will attempt to rectify processing errors.
Privacy and Legal Notices; TCPA
Client agrees to keep information received from Cardholders confidential. Client will not disclose to any third party any Cardholder account information other personal information except in connection with the Services and in accordance with the Card Organization Rules or applicable law (including but not limited as required under the Health Insurance Portability and Accountability Act or “HIPAA”). Client must keep all Cardholder information in a secure manner to prevent disclosure to unauthorized parties. Client may not disclose or distribute any such information to a third party or use the information for marketing purposes unless Client receives the express consent of the user. Furthermore, Client agrees to be subject to Payment Facilitator’s privacy policy and any other legal notices located at www.swervepay.com.
Client agrees not to use the Services in violation of any local, state or Federal laws, rules or regulations, or orders, including, but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”) and HIPAA and its related Rules and Regulations, and agree to indemnify, defend and hold Payment Facilitator and its Affiliated Entities (defined below) harmless from and against all Losses (defined below) that are incurred, suffered or paid, directly or indirectly, by any of them in connection with, arising out of or resulting from any claim alleging improper or illegal use of any of the Services provided to Client and/or Client Customers by Payment Facilitator or any of its Affiliated Entities, including but not limited to any claims arising from following Client’s direction for communications to Client Customers as to frequency of sending messages by any medium, including but not limited to text, e-mail, facsimile or paper regarding any matter, including but not limited to past due sums, deposits for anticipated procedures, estimates of cost of procedures, appointment reminders, payment receipts or other communications. For purposes of Section 13, indemnification of Payment Facilitator and its Affiliated Entities includes, but is not limited to payment by Client of any judgment, settlement, claim, penalties and costs, interest, reasonable attorneys’ fees and cost of defense, if Payment Facilitator or an Affiliated Entity is named as a party to any action or suit related to delivery of communications to Client Customer or otherwise subject to this indemnification. In such an event, Payment Facilitator and its Affiliated Entities shall have the option at any time of either being defended by Client’s counsel or providing their own defense to the action (subject to regular monthly reimbursement from Client for costs and fees incurred, regardless of the outcome of such action). For purposes of this Section 13: (i) “Losses” means any and all losses, liabilities, damages, penalties, obligations, awards, fines, deficiencies, demands, interest, costs and expenses (including reasonable attorneys’ fees, consultants’ fees and other professional fees and disbursements); and (ii) “Affiliated Entity” shall mean any “affiliate” of Payment Facilitator (as such term is construed under Rule 405 promulgated under the Securities Act of 1933), as well as, without limitation, any independent contractor, business partner, solution extender, or service provider under contract with Payment Facilitator or assists Payment Facilitator in delivering any of the Services provided by Payment Facilitator pursuant to this Agreement.
Consent to Electronic Notices
From time to time, Payment Facilitator may be required to provide to Client certain notices, disclosures or information about Client’s Sub-Merchant Account or in connection with the Services. Client agrees that this information may be provided to Client by posting it on Payment Facilitator’s website or mobile app, or by sending Client an e-mail to the e-mail of record with Payment Facilitator when Client signed up for the Services. Notices provided to Client via e-mail will be deemed given and received on the transmission date of the e-mail. Notices posted to the website or mobile app will be deemed given and received within 24 hours of posting.
Compliance with Law: Payment Card Industry Data Security Standards Non-Disclosure & Storage of Cardholder and Transaction Information Requirements
While Payment Facilitator and/or its Affiliates use advanced security features to ensure the security and safety of Client’s personal information and that of Client Customers, Payment Facilitator cannot absolutely guarantee the security of any of such personal information from unauthorized access, loss or disclosure by third parties. Client confirms and certifies that: (a) Client is, and shall be, in full compliance during the term of this Agreement with all laws, statutes and federal and/or state regulations, as well as the Rules as may be applicable to Client, Client’s business and any Payment Transaction; (b) all acceptances of Cards as a form of payments via the Internet shall at a minimum, include the following information and processes on their Internet sites: (i) prominent display of Sub-Merchant name as “Merchant” and as the name that will appear on the cardholder statement, (ii) a complete description of good or services offered; (iii) delivery standards including method and time for delivery; (iv) terms and conditions of purchase, and export or legal descriptions; (v) return/refund policy described in reasonable details; (vi) opportunity to review and confirm order prior to order submission; (vii) secure method for payment data transmission; (viii) currency of transaction used to make payment (USD); (ix) disclosure of Sub-Merchant outlets to country of origin; (x) display of card association or payment network logos; (xi) clear disclosure of Sub-Merchant privacy policy; (xii) alternate Sub-Merchant contact info options; and (xiii) display of web hosting company contact information; (c) it (and any outside agent that it may utilize to submit Transactions to Payment Facilitator) complies and will comply with the Payment Card Data Security Standards (“PCI DSS”) and Sub-Merchant hereby agrees to pay any fines and penalties that may be assessed by Visa, MasterCard or Discover or any other Card Organization as a result of Sub-Merchant’s non-compliance with the requirements of PCI DSS, any data breaches, or by its failure to accurately validate its compliance. Sub-Merchant will review and monitor the requirements at http://www.visa.com/CISP, and http://www.pcisecuritystandards.org in order to determine the timeframes and mandates for compliance under PCI DSS. The foregoing is an on-going obligation during the term of this Agreement and as this Agreement may be renewed. Sub-Merchant acknowledges and understands that Sub-Merchant may be prohibited from participating in Visa, MasterCard or Discover or other Card Organization programs if it is determined that Sub-Merchant is non-compliant. The following lists certain (but not all) of the current PCI DSS requirements, all of which Sub-Merchant shall comply with, if applicable: (i) install and maintain a working network firewall to protect data accessible via the Internet; (ii) keep security patches up to date; (iii) encrypt stored data; (iv) encrypt data sent across networks; (v) use and regularly update anti-virus software; (vi) restrict access to data to business (“need to know”); (vii) assign a unique ID to each person with computer access to data; (viii) not use Payment Facilitator supplied defaults for system passwords and security parameters; (ix) track access data by unique ID; (x) maintain a policy that addresses information security for employees and contractors; and (xi) restrict physical access to Cardholder information. Sub-Merchant shall notify Payment Facilitator if it utilizes any third-party that provides payment related services, directly or indirectly, and/or stores, transmits, or processes Cardholder data. Sub-Merchant is responsible for ensuring compliance of any such third-parties with PCI DSS. In the event of the failure, including bankruptcy, insolvency, or other suspension of Sub-Merchant’s business operations, Sub-Merchant shall not sell, transfer, or disclose any materials that contain Cardholder account numbers, personal information, or other Cardholder transaction information to third-parties (collectively, “Cardholder Information”). Sub-Merchant on behalf of itself and each of its agents and Affiliates shall either return this Cardholder Information to Payment Facilitator, or provide Payment Facilitator with acceptable proof of destruction of Cardholder Information. If Sub-Merchant is undergoing a forensic investigation regarding PCI DSS compliance at the time Sub-Merchant executes this Agreement, then Sub-Merchant shall fully cooperate with the investigation until completed. Payment Facilitator warrants that it and each of its Affiliates complies with the applicable required PCI DSS regulations and that Payment Facilitator and each of its Affiliates is a PCI DSS validated service provider.
Termination of Services
Client may cancel the Services or terminate this Agreement at any time, with, or without cause. Cancellation of the Services will become immediate upon Client’s notice to Payment Facilitator. Cancellation of the Services or termination of this Agreement will not alter Client’s obligation to pay all amounts owed to Payment Facilitator, including any Fees, and Client will continue to be bound by this Agreement, which obligations shall survive any termination of this Agreement. Upon termination of this Agreement, the license granted under this Agreement shall cease and Payment Facilitator shall not be liable to Client or any third party for such termination or access to the Services.
Upon termination of this Agreement, any pending transactions will be cancelled unless processed by Payment Facilitator (or its Payment Facilitator Processors) in Payment Facilitator’s sole discretion. Subject to Section 18 below, any funds that Payment Facilitator is holding in custody for Client at the time of termination, less any applicable Fees chargebacks, penalties or payments due under this Agreement, will be paid out to Client according to Client’s payment schedule (consistent with past practice and subject to Payment Facilitator’s rights to withhold payment for monies owed to Payment Facilitator or reserves established by Payment Facilitator). If an investigation is pending at the time Client closes Client’s Sub-Merchant Account, Payment Facilitator may hold Client’s funds until the investigation is completed. Payment Facilitator may hold all funds for up to 180 days from the date of the last transaction or 180 days from the date of the last chargeback, whichever is the later.
Payment Facilitator may terminate this Agreement and close Client’s Sub-Merchant Account for any reason or no reason at any time upon notice to Client, and without liability to Client for closing Client’s Sub-Merchant Account. Payment Facilitator may also suspend or terminate the Services and access to Client’s Sub-Merchant Account if Client: (a) have violated the terms of this Agreement, the Card Organization Rules, any other agreement Client has with Payment Facilitator, (b) pose an unacceptable credit or fraud risk to Payment Facilitator or any Payment Facilitator Processor, as determined by Payment Facilitator in its sole discretion, (c) fall outside the credit policy approved by a Payment Facilitator Processor, of if requested by a Card Organization or governmental entity, (d) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct, or (e) breach any of Client’s obligations under this Agreement. Payment Facilitator also reserves the right to add Client’s Sub-Merchant Account to the Terminated Merchant File, if Client’s Sub-Merchant Account meets the criteria defined by MasterCard.
Effect of Termination
Any termination of this Agreement does not relieve Client of any obligations to pay any Fees, penalties or costs accrued prior to the termination and any other amounts owed by Client to Payment Facilitator as provided in this Agreement. Client will continue to be responsible for any and all Chargebacks, credits and adjustments and all other amounts then due, or which later become due. In connection with termination, Payment Facilitator or its applicable Payment Facilitator Processor(s) may require the establishment and maintenance of a Reserve Account by Client in accordance with Section 7.
Subject to the terms and conditions of this Agreement, Payment Facilitator grants Client a personal, limited, non-exclusive, non-transferable license, during such time that Client satisfies the conditions set forth in this Agreement, to electronically access and use the Services solely for the purpose described herein. Except as expressly allowed herein or by applicable law, Client is not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following: (i) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way any components of the Services; (ii) permit any third party to benefit from the use or functionality of the Services via a rental, lease, timesharing, service bureau, or other arrangement; (iii) transfer any of the rights granted to Client under this Agreement; (iv) work around any technical limitations in the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer the any component of Services except as otherwise permitted by applicable law; (v) perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or the use of the Services by Payment Facilitator’s other licensees or customers; or (vi) export the Services, directly or indirectly.
Reservation of Rights and Ownership
Payment Facilitator reserves all rights not expressly granted to Client in this Agreement. Components of the Services are protected by copyright, trade secret and other intellectual property laws. Payment Facilitator and its licensors own the title, copyright, and other worldwide intellectual property rights in the Services and all copies of the Services. This Agreement does not grant Client any rights to trademarks or service marks of Payment Facilitator. This Agreement does not limit any rights that Payment Facilitator may have under trade secret, copyright, patent or other laws.
Privacy & Use of Client’s Information
The Services may utilize SMS messages delivered through wireless service providers, such as AT&T, Sprint, Verizon, etc. Client acknowledges that any SMS message goes through Client and the message recipient’s wireless service provider’s systems. The privacy statement of each associated wireless service provider applies as the message passes through those systems. As a requirement to permit usage of SMS systems some wireless service providers may require that Payment Facilitator disclose to them information about users of the Services and the nature of business to be conducted. In this situation the information will be used to ensure legitimate use of the SMS systems and not for marketing purposes. Client acknowledges and agrees that Payment Facilitator may provide information about Client to wireless service providers as described above. Client also acknowledges that in accessing the Services Client may upload or enter certain data from Client’s account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. Client may be made aware of or offered services, features, products, applications, online communities, or promotions provided by Payment Facilitator or Payment Facilitator’s Affiliates. Installing this application grants Payment Facilitator the right to send the identifiers for Client’s mobile device to third parties for the use of advertising purposes. Client is responsible for securely managing access to Client’s data and to the Services. Client agrees to be bound by the applicable Payment Facilitator privacy policy, as it may be amended from time to time in accordance with its terms.
Disclaimer of Warranties
THE SERVICES AND ANY CONTENT ACCESSIBLE THROUGH THE SERVICES ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYMENT FACILITATOR, ITS AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, PAYMENT FACILITATOR PROCESSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DEALERS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) DISCLAIM ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, CONTENT, AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NON- INFRINGEMENT. PAYMENT FACILITATOR DOES NOT WARRANT THAT THE SOFTWARE, THE SERVICES, THE SWIPE DEVICE, THIRD PARTY SERVICES OR ANY ONLINE SERVICES ARE SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, OR ERRORS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. FURTHER, PAYMENT FACILITATOR DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT OR DATA THROUGH THE SERVICES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT. THIS WARRANTY GIVES CLIENT SPECIFIC LEGAL RIGHTS, AND CLIENT MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
Limitation of Liability and Damages
CLIENT AGREE THAT IN NO EVENT WILL PAYMENT FACILITATOR, ANY PAYMENT FACILITATOR PROCESSOR OR ANY AFFILIATE OF PAYMENT FACILITATOR BE LIABLE FOR ANY LOSS, COST, LIABILITY OR DAMAGE INCURRED AS A RESULT OF YOUR USE OF THE SERVICES, THE TERMINATION OF SERVICES OR PARTICIPATION IN THIRD PARTY SERVICES. THE ENTIRE CUMULATIVE LIABILITY OF PAYMENT FACILITATOR, PAYMENT FACILITATOR’S AFFILIATES, ITS SUPPLIERS AND PAYMENT FACILITATOR PROCESSORS FOR ANY REASON ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OF THE SERVICES SHALL BE LIMITED AS PROVIDED HEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYMENT FACILITATOR, ITS AFFILIATES, ITS PAYMENT FACILITATOR PROCESSORS AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, THE LOSS, CORRUPTION OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS, USE OF THE SOFTWARE WITH HARDWARE OR OTHER SOFTWARE THAT DOES NOT MEET PAYMENT FACILITATOR’S SYSTEMS REQUIREMENTS OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY OF PAYMENT FACILITATOR, ITS AFFILIATES, ITS SUPPLIERS, ITS PAYMENT FACILITATOR PROCESSORS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CLIENT. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PAYMENT FACILITATOR AND CLIENT. PAYMENT FACILITATOR WOULD NOT HAVE PROVIDED THE SERVICES WITHOUT SUCH LIMITATIONS.
Consent
Client’s consent to do business electronically and receive electronic communications from Payment Facilitator, and Payment Facilitator’s agreement to do so covers all transactions Client conducts through the Services for as long as Client remains a licensee of the Services. If Client later decides that Client does not want to receive future communications electronically, Client may contact Payment Facilitator with withdrawal in writing of Client’s consent and discontinue the use of the Services.
Indemnification
Client agrees to indemnify, defend and hold Payment Facilitator, its Affiliates, its Payment Facilitator Processors, contractors, employees, agents and its third party suppliers, licensors, attorneys and partners (collectively, the “Payment Facilitator Indemnitees”) harmless from any and all claims, losses, damages, and liabilities, costs and expenses, including without limitation legal fees and expenses, arising out of or related to Client’s use or misuse of the Services, any violation by Client of this Agreement, or any breach of the representations, warranties, and covenants made by Client in this Agreement. Payment Facilitator reserves the right, at Client’s expense, to assume the exclusive defense and control of any matter for which Client is required to indemnify any of Payment Facilitator Indemnitees, including rights to settle, and Client agrees to cooperate with the defense and settlement of these claims. Payment Facilitator will use reasonable efforts to notify Client of any claim, action, or proceeding brought by a third party that is subject to the foregoing indemnification upon becoming aware of it.
Amendment
Please review the Agreement periodically on Payment Facilitator’s website provided to Client for additional terms and changes. Payment Facilitator has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to, Fees, terms, Internet-based services, pricing, technical support options, and other product-related policies, at any time upon notice by any means Payment Facilitator determines in its discretion to be reasonable. Client’s continued use of the Services after Payment Facilitator’s publication of any such changes shall constitute Client’s acceptance of this Agreement as modified.
Third Party Services
In connection with Client’s use of the Services, Client may be made aware of services, products, offers and promotions provided by third parties, and not by Payment Facilitator (“Third Party Services”). If Client decides to use Third Party Services, Client is responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing any Third Party Services. Client authorizes Payment Facilitator to use and disclose Client’s contact information, including name and address, for the purpose of making the Third Party Services Client chooses available to Client. Client agrees that the third party, and not Payment Facilitator, is responsible for the performance of the Third Party Services.
Export Restrictions
Client acknowledges that the Services are subject to the U.S. export controls regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII) and that Client will comply with all applicable laws and regulations. Client will not export or re-export the Services, or portion thereof, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end user, or to any end user who Client knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons.
Representations and Warranties
Client represents and warrants to Payment Facilitator that: (a) if an individual, Client is at least eighteen (18) years of age; (b) Client is eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by Client when Client registered is Client’s name or business name under which Client sells goods and services; (d) any sales transaction submitted by Client will represent a bona fide sale by Client; (e) any sales transactions submitted by Client will accurately describe the goods and/or services sold and delivered to a purchaser; (f) Client will fulfill all of Client’s obligations to each of Client Customers for which Client submits a transaction and will be responsible for and resolve any customer dispute or complaint directly with the purchaser and will be financially liable to Payment Facilitator for transactions entered into with purchasers; (g) Client and all transactions initiated by Client will comply with all federal, state, and local laws, rules, and regulations applicable to Client and/or Client’s business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no sales transaction submitted by Client through the Services will represent a sale to any principal, partner, proprietor, or owner of Client’s entity or any of Client’s other Affiliates; (i) Client will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (j) Client’s use of the Services will be in compliance with this Agreement; (k) Client agrees to follow the applicable Card brand operating Rules and regulations; and (l) Client is not engaged in any of the businesses or in any of the activities listed on Exhibit A, attached hereto and incorporated herein by reference.
Miscellaneous
Except as expressly set forth in this Agreement, this Agreement is a complete statement of the agreement between Client and Payment Facilitator and sets forth the entire liability of Payment Facilitator, its Payment Facilitator Processors, its Affiliates and its suppliers and Client’s exclusive remedy with respect to the Services and Third Party Services and their use. The suppliers, agents, employees, distributors, and dealers of Payment Facilitator are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Payment Facilitator. Any waiver of the terms herein by Payment Facilitator must be in a writing signed by an authorized officer of Payment Facilitator and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement may not be assigned by Client without the prior written approval of Payment Facilitator, but may be assigned without Client’s consent by Payment Facilitator without restriction. Any assignment in violation of this Section will be void. This Agreement will be governed by Illinois law, without regard to its conflicts of law principles, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in Cook County, Illinois or federal court for the Northern District of Illinois for the resolution of any dispute with respect to the this Agreement or any of the Services called for herein. Client hereby waives Client’s right to trial by jury with respect to any judicial proceeding relative to this Agreement or any of the Services called for herein. For purposes of this Agreement, the term “Affiliate” shall mean a person or entity controlled by or under common control with another person or entity, as the term “affiliate” is construed under Rule 405 promulgated under the Securities Act of 1933 as amended. All rights and obligations of the parties hereto accruing under this Agreement during the term of this Agreement shall survive any termination of this Agreement. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. This Agreement may be executed in several counterparts, whether by original, photocopy, facsimile, email pdf or electronic signature, both of which when taken together shall constitute one valid binding Agreement. By clicking via the internet or other electronic media that Client agrees to the terms of this Agreement, this shall constitute the counterpart electronic signature by both Client and Payment Facilitator to be bound by the terms of this Agreement. Any notice required hereunder shall be deemed given if delivered in writing in person or sent by email to the email address of the other party set forth below or if sent by Federal Express or other bonded courier one business day after sent via next business day or same business day delivery to the address of the party set forth below to three business days after deposit in the U.S. Mail by either registered or certified mail, addressed to the party entitled to notice at the address set forth below, or if a party delivers notice of a change in address, then the delivery shall be made to the most recent address provided by notice of the party changing his, her or its address as set forth in such notice. If no address is designated by Client below, then the address shall be Client’s main corporate address as set forth on Client’s main corporate website.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date of full execution of this Agreement.
PAYMENT FACILITATOR: | CLIENT: | |||||||
SwervePay, LLC | ||||||||
[Print Name] | ||||||||
By: | By: | |||||||
Its: | Its: | |||||||
Date of Execution: | Date of Execution: | |||||||
Address: | ||||||||
Address: | 38896 Cedarcrest Drive | |||||||
Lake Villa, IL 60046 | E-Mail: | |||||||
E-Mail: | SSN or EIN: |
15807945
EXHIBIT A
PROHIBITED BUSINESSES AND ACTIVITIES
The following businesses and activities are strictly prohibited, unless otherwise agreed to by Payment Facilitator and Payment Facilitator Processors:
- Age Restricted Products or Services
- Any business where the anticipated % of International Card Sales is expected to be greater than 20% of total sales
- Bail Bond Services or Bankruptcy Lawyers
- Career Placement or Advice Center Businesses
- Crowd Sourced Fundraising
- Dating Services
- Delayed Delivery Businesses where the good or service provided is not shipped, delivered or fulfilled when the card transaction is processed but is to occur at a future date
- Online Personal Computer Technical Support
- Personal Enhancement Products and/or Nutraceuticals
- Psychic Services
- Shipping or Forwarding Brokers
- Travel Agencies or Tour Operators
- Any product, service or activity that is deceptive, unfair, predatory or prohibited by one or more Card Brands
- Any merchant selling goods or services that represent a violation of any law, statute or regulation
- Any merchant operating outside the United States
- Any merchant submitting sales for payment that resulted from another commercial entity providing goods or services to the cardholder, including those businesses that may otherwise qualify themselves as a Payment Service Company or Payment Facilitator
- Any 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 merchants accepting a card as payment for a dishonored check or for an item deemed uncollectible by another merchant
- Loan payments conducted on a Visa branded credit card
- Adult entertainment and/or adult content websites including Electronic Commerce adult content (videotext) merchants that would include MCC’s 5967,7273 and 7841
- Buyer Clubs/Membership Clubs
- 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
- Gambling Activities and Establishments including MCC 7995, including lotteries, internet gaming, daily fantasy sports, contests, sweepstakes, “special incentives” or offering of prizes as an inducement to purchase goods or services
- Infomercial merchants
- Internet Pharmacies
- Multi-Level Marketing Businesses
- Outbound Telemarketers and Telecom merchants including MCC’s 4814,4816, and 5966
- Payment Facilitators
- Rebate-Based Businesses
- Up-Selling merchants
- Any merchant that accepts a card at a scrip-dispensing terminal
- Airlines including Charter Airlines
- Bestiality
- Bidding Fee Auctions including Penny Auctions
- Brand or Reputational damaging, potential or otherwise, activities including Child Pornography, Escort Services, Mail Order Brides, Occult
- Collection Agencies
- Commodity Trading or Security Trading
- Credit Counseling or Credit Repair Services
- Credit Protection or Identity Theft Protection Services
- Cruise Lines
- Currency Exchanges or Dealers
- Debt Elimination, Debt Reduction or Debt Consulting Services
- Digital Wallet or Prepaid Companies
- Discount Buying Memberships/Clubs
- Discount Medical or Dental plans including Discount Insurance
- Discount Coupon merchants or Online Sites
- Distressed Property Sales and/or Marketing
- Drug Paraphernalia
- e-Cigarettes
- Firearms and weapons including Ammunition
- 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
- Marijuana dispensaries and related products or services
- Money Transfer, Wire Transfers, Money Orders, Transmitters, and Check Cashing including merchants required to be registered as Money Service Business
- ”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 periodically and/or a significantly larger amount
- Pawn Shop
- Prepaid Phone Cards
- Prepaid Phone Services
- Pseudo Pharmaceuticals
- 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
- Transacting Virtual Currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world
Schedule A - Health Pro 2.25 2.95 .30
Effective January 28, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.25% 2.95% $0.30 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Setup / Training | $130.00 $549.00 | Per Device One Time Fee Per Location |
Effective January 14, 2020 to January 28, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.25% 2.95% $0.30 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Setup / Training | $130.00 $549.00 | Per Device One Time Fee Per Location |
Effective April 12, 2018 to January 14, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.25% 2.95% $0.30 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Magtek USB Keyboard Emulated Setup / Training | $130.00 $120.00 $549.00 | Per Device Per Device One Time Fee Per Location |
Schedule A - Pricing: SwervePay Health Pro
Effective March 23, 2018
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: SwervePay Health Pro Software & Merchant Services | 2.69% 3.25% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
Setup / Training | $149.00 | Per Location |
Schedule A - Pricing: Merchant Services
Effective March 23, 2018
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Merchant Services | 3.00% $0.30 | Processed Volume Per Transaction |
Schedule A - Health Pro 2.25 2.75 .25
Effective January 28, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.25% 2.75% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Setup / Training | $130.00 $549.00 | Per Device One Time Fee Per Location |
Effective January 14, 2020 to January 28, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.25% 2.75% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Setup / Training | $130.00 $549.00 | Per Device One Time Fee Per Location |
Effective April 13, 2018 to January 14, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.25% 2.75% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Magtek USB Keyboard Emulated Setup / Training | $130.00 $120.00 $549.00 | Per Device Per Device One Time Fee Per Location |
Effective April 10, 2018 to April 13, 2018
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.25% 2.75% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Magtek USB Keyboard Emulated Setup / Training | $130.00 $120.00 $549.00 | Per Device Per Device One Time Fee Per Location |
Schedule A - Health Enterprise 2.25 2.75 .25
Effective January 28, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.25% 2.75% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Setup / Training | $130.00 $549.00 | Per Device One Time Fee Per Location |
Effective January 14, 2020 to January 28, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.25% 2.75% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Setup / Training | $130.00 $549.00 | Per Device One Time Fee Per Location |
Effective April 11, 2018 to January 14, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.25% 2.75% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Magtek USB Keyboard Emulated Setup / Training | $130.00 $120.00 $549.00 | Per Device Per Device One Time Fee Per Location |
Effective April 11, 2018 to April 11, 2018
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.25% 2.75% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Magtek USB Keyboard Emulated Setup / Training | $130.00 $120.00 $549.00 | Per Device Per Device One Time Fee Per Location |
Schedule A - SwervePay Health Enterprise
Effective August 17, 2022
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Schedule A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.30% 2.90% $0.30 $25 | Swipe Transactions Non-Swipe Transactions Per Transaction PCI Non-Compliance Fee Per Instance Non-Compliant Month. Agreement may be terminated if Client fails to maintain PCI Compliance. |
One Time Fees (invoiced at time of order) Device / Readers: M130's Magtek USB Keyboard Emulated Setup / Training | $130.00 $120.00 $549.00 | Per Device Per Device One Time Fee Per Location |
Effective April 11, 2018 to August 17, 2022
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.25% 2.75% $0.25 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Magtek USB Keyboard Emulated Setup / Training | $130.00 $120.00 $549.00 | Per Device Per Device One Time Fee Per Location |
Schedule A - Pricing: QRS 3.25
Effective April 13, 2018
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 3.25% $0.25 | Transaction Volume Processed Per Transaction |
Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
Schedule A - Pricing: eAssist
Effective August 31, 2022
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 3.20% $0.25 $25.00 | Transaction Volume Per Transaction Monthly Minimum Fee |
One Time Fees: | $15.00 $35.00 $25.00 | ACH Return Fee Per Return Chargeback and Retrieval Fee per Instance PCI Non-Compliance Fee Per Non-Compliant Month. Finvi Payments may terminate if Client fails to maintain PCI Compliance. |
Effective February 29, 2020 to August 31, 2022
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 3.15% $0.25 $25.00 | Transaction Volume Per Transaction Monthly Minimum Fee |
One Time Fees: | $15.00 $35.00 $25.00 | ACH Return Fee Per Return Chargeback and Retrieval Fee per Instance PCI Non Reporting Fee Per Instance |
Effective February 28, 2020 to February 29, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 3.15% $0.25 $10.00 | Transaction Volume Per Transaction Monthly Minimum Fee |
One Time Fees: | $15.00 $35.00 $25.00 | ACH Return Fee Per Return Chargeback and Retrieval Fee per Instance PCI Non Reporting Fee Per Instance |
Effective April 27, 2018 to February 28, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 3.15% $0.25 | Transaction Volume Per Transaction |
Effective April 16, 2018 to April 27, 2018
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 3.15% $0.25 | Transaction Volume Per Transaction |
Device / Readers: IDTech M130 w Keypad for Manual Entry Magtek Dynamag (No Keypad) | $130.00 $120.00 | Per Device Per Device |
Schedule A - Pricing: Apex Payment Processing
Effective April 16, 2018
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Merchant Services | 2.50% $0.25 | Processed Volume Per Transaction |
Schedule A - SolutionReach Payment Processing
Effective April 16, 2018
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees Payment Processing | 2.25% 2.95% $0.30 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Magtek USB Keyboard Emulated | $150.00 $120.00 | Per Device Per Device |
* Monthly Minimum Fee | $25.00 | Per month if invoice does not total at least $25.00 |
Schedule A - ServeFirst
Effective April 17, 2018
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees | 1.00% $0.25 | Processed Volume Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Magtek USB Keyboard Emulated | $150.00 $120.00 | Per Device Per Device |
* Monthly Minimum Fee | $25.00 | Per month if invoice does not total at least $25.00 |
Schedule A - Yapi
Effective April 17, 2018
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Schedule A: Pricing
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 2.65% 3.15% $0.25 | Swipe Transaction Volume Non-Swipe Transaction Volume Per Transaction |
Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
Schedule A - Pricing: Visualutions
Effective August 30, 2022
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Schedule A: Pricing Schedule
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Quantity |
Includes: SwervePay Health Software & Merchant Services | 2.30% 3.00% $0.30 $25.00 | Swipe Transactions Non-Swipe Transactions Per Transaction PCI Non-Compliance Fee Per Non-Compliant Month. Finvi Payments may terminate if Client fails to maintain PCI Compliance. |
Device / Readers: IDTech M130's | $139.00 | Per Device |
Effective October 6, 2021 to August 30, 2022
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Schedule A: Pricing Schedule
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Quantity |
Includes: SwervePay Health Software & Merchant Services | 2.25% 2.95% $0.30 | Swipe Transactions Non-Swipe Transactions Per Transaction |
Device / Readers: IDTech M130's | $139.00 | Per Device |
Effective May 9, 2018 to October 6, 2021
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: SwervePay Health Software & Merchant Services | 2.25% 2.95% $0.30 | Swipe Transactions Non-Swipe Transactions Per Transaction |
Device / Readers: IDTech M130's | $139.00 | Per Device |
Schedule A - Pricing: Apex Payment Processing Additional Information Request
Effective May 14, 2018
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Merchant Services | 2.40% $0.20 | Processed Volume Per Transaction |
Schedule A - Pricing: Getix Payment Processing
Effective May 23, 2018
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Merchant Services | 2.69% $0.25 | Processed Volume Per Transaction |
Schedule A - Pricing: APEX Payment Processing
Effective June 15, 2018
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Merchant Services | 2.75% $0.25 | Processed Volume Per Transaction |
Products and Services Agreement - SwervePay Health
Effective July 25, 2018
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Products and Services Agreement - SwervePay Health
Agreement dated as of {{{Agreement.Date}}} (“Effective Date”), by and between {{{Customer_Legal_Name}}}(“Customer”), and SwervePay, LLC, an Illinois limited liability company, whose address is 38896 N. Cedarcrest Drive, Lake Villa, Illinois 60046 (“SP”), under which SP will license or otherwise make available to Customer one or more of the products and services below (collectively, the “Products and Services”).
Confidential Information. Any specific transactional data of Customer that becomes known to SP will be considered as confidential information, and maintained as secure and confidential data.
Payment. Set forth on Exhibit A (the terms of which are incorporated by reference herein and made a part hereof) are the Products and Services that shall be licensed by Customer from SP as of the Effective Date, as well as the initial pricing thereof (subject to adjustment as provided elsewhere herein). Should Customer wish to add Products and Services such addition shall be made by amendment to Exhibit A either by written agreement signed by SP and Customer or by e-mail from one party to the other acknowledged by reply e-mail. SP shall have the right from time to time to increase the prices called for on Exhibit A on thirty (30) days’ prior notice to Customer (either by e-mail or written notice), which shall be effective should Customer not object to such price increase within such thirty (30) day period; should customer object to such price increase on a timely basis, then at SP’s option, to be delivered in writing or by e-mail, such price increase shall be rescinded retroactive the original notification, subject to SP’s right to terminate this Agreement as set forth below. Fixed monthly fees are charged monthly in advance. Charges that are based on usage, such text messages or transaction fees, are billed as soon as practicable following the end of the month. No objection to charges will be valid if not provided by notice to SP within thirty (30) days of the date of the applicable invoice or charge by SP. SP will investigate such charges, which shall remain due and payable (and not subject to set off or deduction) until such point in time, if any, that SP advises Customer to the contrary. Customer agrees to an automatic debit to ACH to settle billings; there shall be no separate invoice sent.
Ownership of Technology. The Products and Services provided by SP to Customer pursuant to this Agreement, including the use of software provided by SP are licensed to Customer under this Agreement and remain the sole property of SP, including but not limited to all intellectual property rights, object code, software code, trademarks, copyrights and patents associated therewith. Customer agrees not to disassemble or reverse engineer any of the software provided by SP or used by SP in delivery of Products and Services to Customer. Nothing in this Agreement shall grant Customer any ownership rights to this property. Certain Products and Services utilize licensed third-party proprietary code via application programming interfaces or open source libraries. SP is owner of the trademark “SwervePay” and associated logos and other trademarks (collectively the “Marks”). Customer agrees to not use the Marks or any trademarks or service marks confusingly similar to the Marks without SP’s prior written consent. Any license or right to use the Products and Services in favor of Customer is limited to Customer’s use of the same for its internal purposes only, with such license or right to use expressly excluding, without limitation, any reproduction, duplication, sale, resale or other commercial use of the Products and Services or Website (as hereinafter defined) other than for the uses contemplated herein.
Limitation of Liability and SP Disclaimers. The Products and Services, including all information, content, materials, products (including software) and services included on or otherwise made available to Customer through SP are provided by SP on an “as is” and “as available” basis, unless otherwise specified in writing. SP makes no representations or warranties of any kind, express or implied, as to the operation of its software or any internet site used for the delivery of Products and Services to Customer, or the information, content, materials, products (including software) or services included on or otherwise made available to Customer through SP or any of its Affiliates, unless otherwise specified in writing. Customer expressly agrees that Customer’s use of Products and Services is at Customer’s sole risk. To the full extent permissible by applicable law, SP disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. SP does not warrant that Products and Services, including any information, content, materials, products (including software) or services included on or otherwise made available to Customer through SP’s Products and Services, its servers; or electronic communications sent from SP are free of viruses or other harmful components. SP will not be liable for any damages of any kind arising from the use of Products and Services or from any information, content, materials, products (including software) or services included on or otherwise made available to Customer through Products and Services, including, but not limited to direct, indirect, incidental, punitive, and consequential damages, unless otherwise specified in writing signed by SP. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to Customer, some or all of the above disclaimers, exclusions, or limitations may not apply to Customer, and Customer might have additional rights.
Use of Website. SP maintains the website “SwervePay.com” and may hereafter maintain other websites in the future, including but not limited to any website established to support this Agreement (collectively, the “Website”). Any use by Customer of the Website shall be subject to all terms and conditions for users as set forth on the Website (including but not all user policies and guidelines), the terms and conditions of which are incorporated by reference herein and made a part hereof as if fully rewritten. Should SP provide any password to Customer to the Website (individually or collectively, the “Password”), the Password may only be used in connection with authorized transactions as permitted hereunder and under the Website. Customer is solely responsible for maintaining the security of the Password. Customer will not disclose the Password to any third-party and will ensure that Customer’s employees provided access to the Password maintain the confidentiality of the Password, with Customer to be liable for any unauthorized use of the Password by any person or entity. If the Password is compromised, Customer agrees to immediately notify SP on learning of the same. Much of the information on the Website is updated on a real time basis and is proprietary of or is licensed to SP or third-parties. Customer agrees that: it will not: take any action that imposes or may impose in SP’s sole discretion, an unreasonable or disproportionately large load on its infrastructure; copy, reproduce, modify, create derivative works from, distribute or publicly display any content; or interfere or attempt to interfere with any proper working of the Website or any activities conducted on the Website.
The Website, Products and Services may be used only for lawful purposes and in a lawful manner, with Customer agreeing to comply with all applicable laws, rules and regulations in its dealings with any of SP, the Websites, the Products and Services. SP reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators or other third-parties. SP may access and disclose any information it considers necessary and appropriate, including without limitation, user contact details, IP addressing and traffic information, usage history and posted content.
Hold Harmless. Customer agree not to use Products and Services in violation of any local, state or Federal laws, rules or regulations, and agrees to indemnify, defend and hold SP harmless from and against any claims brought against SP or any of its Affiliates arising from any alleged improper or illegal use of any of the Products and Services provided to Customer by SP or any of its Affiliates. For the purposes of this Section 6, “claims” means losses, actions, liabilities, damages, expenses, reasonable attorneys’ fees and court costs.
Customer agrees not to use Products and Services in violation of any local, state or Federal laws, rules or regulations, or orders, including, but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”) and its related July 10, 2015 Omnibus Ruling, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its related Rules and Regulations, the Fair Debt Collection Practices Act (“FDCPA”) and its state or local law equivalents, and agrees to indemnify, defend and hold SP and its Affiliated Entities (defined below) harmless from and against all Losses (defined below) that are incurred, suffered or paid, directly or indirectly, by any of them in connection with, arising out of or resulting from any claim alleging improper or illegal use of any of the Products and Services provided to Customer or any of Customer’s clients (or to persons or entities that Customer has directed or retained SP to contact on Customer’s behalf) by SP or any of its Affiliated Entities, including but not limited to any claims arising from following the direction of Customer for communications to its clients as to frequency of sending messages by any medium, including but not limited to text, e-mail, facsimile or paper regarding any matter, including but not limited to past due sums, deposits for anticipated procedures, estimates of cost of procedures, appointment reminders, payment receipts or other communications. For purposes of Section 6, indemnification of SP and its Affiliated Entities includes, but is not limited to payment by Customer of any judgment, settlement, claim, penalties and costs, interest, reasonable attorneys’ fees and cost of defense, if SP or an Affiliated Entity is named as a party to any action or suit related to delivery of communications to a Customer client or otherwise subject to this indemnification. In such an event, SP and its Affiliated Entities shall have the option at any time of either being defended by Customer’s counsel or providing their own defense to the action (subject to regular monthly reimbursement from Customer for costs and fees incurred, regardless of the outcome of such action). For purposes of this Section 6: (i) “Losses” means any and all losses, liabilities, damages, penalties, obligations, awards, fines, deficiencies, demands, interest, costs and expenses (including reasonable attorneys’ fees, consultants’ fees and other professional fees and disbursements); and (ii) “Affiliated Entity” shall mean any “affiliate” of SP (as such term is construed under Rule 405 promulgated under the Securities Act of 1933), as well as, without limitation, any independent contractor, business partner, solution extender, or service provider under contract with SP that assists SP in delivering any of the Products or Services provided by SP pursuant to this Agreement.
No Liability for Force Majeure Events. Neither Party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), labor strife, internet failure, wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
Term and Termination. Payment and pricing terms may not be modified by SP without prior thirty (30) days’ written notice. This Agreement shall be for an initial term of one year from the Effective Date and shall be automatically renewable for successive one-year periods unless either party delivers notice of non-renewal to the other party not less than sixty (60) days prior to the end of the initial term or renewal term then in effect. All rights and obligations of the parties accrued during the initial term or any renewal term of this Agreement shall survive any termination of this Agreement. Dispute Resolution. This Agreement shall be governed by the laws of the State of Illinois. Except as noted below, any dispute or claim arising out of or relating to this Agreement or the breach thereof shall be settled by binding arbitration in accordance with the Commercial Arbitration rules of the American Arbitration Association (“AAA”) with an arbitrator selected in accordance with the rules of the AAA, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration proceeding shall take place and the arbitration award given in writing in the City of Chicago, Illinois. In the event of any litigation or arbitration to interpret or enforce any of the provisions of this Agreement, the prevailing party shall be entitled to recover all costs and expenses associated with the proceeding, including arbitrator compensation and all attorney’s fees and expert witness fees and other costs reasonably incurred in such litigation or arbitration. Neither party shall have any liability to the other for any lost profits, lost revenues, incidental or consequential damages, or for punitive damages. SP shall have the right to injunctive relief without the necessity of posting bond to enforce any of its rights set forth in Section 3 hereof, and Customer consents to the exclusive venue and jurisdiction of the state or federal courts situated in Cook County, Illinois for the resolution of any such dispute.
Miscellaneous. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and cannot be modified unless in writing and signed by the parties. This Agreement is not assignable by Customer without the prior written consent of SP. This Agreement may be executed in several counterparts, whether by original, photocopy, e-mail PDF format or facsimile, all of which when taken together will constitute one valid, binding agreement among the parties. No waiver by a party of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision hereof. Any notice hereunder shall be deemed given: when delivered personally; or one (1) business day after when sent via Federal Express (overnight or same day service) or other bonded next day courier service addressed to the party as called for herein as set forth below (or as other provided by notice by the party entitled to notice); or three (3) business days after sent by certified or registered mail, postage prepaid and addressed to the party entitled to notice; or same day if sent by e-mail to the party at the e-mail address set forth below (to the extent this Agreement expressly calls for e-mail delivery), or such other e-mail address as the party entitled to notice shall provide to the other party.
No inference in favor or against any party shall be drawn based upon who served as principal draftsman of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement, to be effective as of the Effective Date.
Customer Information:
Business Name: {{{Customer.Legal.Name}}}
Signature: {{{Customer.Signor}}}
Full Name: {{{Customer.Signor}}}
Email Address: {{{Customer.email}}}
Title: {{{Customer.Signor.Title}}}
Business Address: {{{Business_Address}}}
SwervePay, LLC
Signed by: Jaeme Adams
Title: CEO
Email: legal@swervepay.com
Address: SP North
38896 N. Cedarcrest Dr.
Lake Villa, IL 60046
Schedule A - SolutionReach - Text to Pay
Effective April 1, 2021
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SCHEDULE A
Fee Schedule | Rate | Quantity |
Monthly Fees Payment Processing | 2.30% and $0.20 2.80% and $0.30 | Per Swipe Transaction Per Key Entered and Card Not Present Transactions |
One Time Fees (Invoiced at time of order and non-refundable) Device / Readers: Magtek USB Keyboard Emulated | $130.00 | Per Device |
Effective October 10, 2018 to April 1, 2021
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees Payment Processing | 2.30% and $0.20 2.80% and $0.30 | Per Swipe Transaction Per Key Entered and Card Not Present Transactions |
One Time Fees (Invoiced at time of order and non-refundable) Device / Readers: Magtek USB Keyboard Emulated | $130.00 | Per Device |
Schedule A - Pricing: Apex CC Processing w ACH
Effective March 21, 2019
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
SwervePay Payment Processing Services | 2.25% 2.95% $0.25 $0.25 | Swipe Credit Card Transactions Non-Swipe Credit Card Transactions Per Credit Card Transaction Per ACH Transaction |
Device / Readers: M130's Magtek USB Keyboard Emulated
| $130.00 $120.00 | Per Device Per Device |
{{{Business_Legal_Name}}}
{{{Business_Contact_Name}}}
Effective January 25, 2019 to March 21, 2019
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
SwervePay Payment Processing Services | 2.25% 2.95% $0.25 $0.25 | Swipe Credit Card Transactions Non-Swipe Credit Card Transactions Per Credit Card Transaction Per ACH Transaction |
Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
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Schedule A - Health Enterprise 2.59 2.95 .15
Effective January 28, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.59% 2.95% $0.15 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's | $130.00 | Per Device |
Effective January 14, 2020 to January 28, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.59% 2.95% $0.15 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's | $130.00 | Per Device |
Effective April 3, 2019 to January 14, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.59% 2.95% $0.15 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Magtek USB Keyboard Emulated | $130.00 $120.00 | Per Device Per Device |
Schedule A - Pricing: Revspring Payment Processing
Effective August 15, 2019
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Merchant Services One Time Fees: ACH Return Fee Chargeback or Retrieveal Fee PCI Non Reporting Fee | 2.80% $15.00 $35.00 $25.00 | Processed Volume Per Return Per Chargeback / Retrieval Per Instance (monthly) |
Schedule A - SolutionReach Text to Pay 66
Effective April 4, 2023
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SCHEDULE A
Fee Schedule | Rate | Quantity |
Monthly Payment Processing Fees | 2.35% $0.20 2.85% $0.30 | Swipe Transactions Per Swipe Transaction Non-Swipe Transactions Per Non-Swipe Transaction |
* Monthly Minimum Fee | $30.00 | Per month if invoice does not total at least $30.00 |
One Time Fees ACH Return Fee Chargeback and Retrieval Fee PCI Non-Compliance Fee Per Non-Compliant Month. Finvi Payments may terminate if Client fails to maintain PCI Compliance. Device / Card Readers: M130's (Devices orders are non-refundable) | $15.00 $35.00 $25.00 $130.00 | Per Return Per Instance Per Month Per Device |
Effective August 31, 2022 to April 4, 2023
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SCHEDULE A
Fee Schedule | Rate | Quantity |
Monthly Payment Processing Fees | 2.35% $0.20 2.85% $0.30 | Swipe Transactions Per Swipe Transaction Non-Swipe Transactions Per Non-Swipe Transaction |
* Monthly Minimum Fee | $10.00 | Per month if invoice does not total at least $10.00 |
One Time Fees ACH Return Fee Chargeback and Retrieval Fee PCI Non-Compliance Fee Per Non-Compliant Month. Finvi Payments may terminate if Client fails to maintain PCI Compliance. Device / Card Readers: M130's (Devices orders are non-refundable) | $15.00 $35.00 $25.00 $130.00 | Per Return Per Instance Per Month Per Device |
Effective April 1, 2021 to August 31, 2022
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SCHEDULE A
Fee Schedule | Rate | Quantity |
Monthly Payment Processing Fees | 2.30% $0.20 2.80% $0.30 | Swipe Transactions Per Swipe Transaction Non-Swipe Transactions Per Non-Swipe Transaction |
* Monthly Minimum Fee | $10.00 | Per month if invoice does not total at least $10.00 |
One Time Fees ACH Return Fee Chargeback and Retrieval Fee PCI Non Compliant Reporting Fee Device / Card Readers: M130's (Devices orders are non-refundable) | $15.00 $35.00 $25.00 $130.00 | Per Return Per Instance Per Month Per Device |
Effective June 17, 2020 to April 1, 2021
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Payment Processing Fees | 2.30% $0.20 2.80% $0.30 | Swipe Transactions Per Swipe Transaction Non-Swipe Transactions Per Non-Swipe Transaction |
* Monthly Minimum Fee | $10.00 | Per month if invoice does not total at least $10.00 |
One Time Fees ACH Return Fee Chargeback and Retrieval Fee PCI Non Compliant Reporting Fee Device / Card Readers: M130's (Devices orders are non-refundable) | $15.00 $35.00 $25.00 $130.00 | Per Return Per Instance Per Month Per Device |
Effective August 16, 2019 to June 17, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Payment Processing Fees | 2.30% $0.20 2.80% $0.30 | Swipe Transactions Per Swipe Transaction Non-Swipe Transactions Per Non-Swipe Transaction |
* Monthly Minimum Fee | $10.00 | Per month if invoice does not total at least $10.00 |
One Time Fees Device / Card Readers: M130's ACH Return Fee Chargeback and Retrieval Fee PCI Non Compliant Reporting Fee | $130.00 $15.00 $35.00 | Per Device Per Return Per Instance Per Month |
Schedule A - Pricing: Revspring Payment Processing 71
Effective August 16, 2019
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Merchant Services One Time Fees: Non-Sufficient Funds Fee Chargeback or Retrieveal Fee PCI Non Reporting Fee | 2.80% $25.00 $15.00 $25.00 | Processed Volume Per Transaction Per Chargeback / Retrieval Per Instance (monthly) |
Schedule A - Pricing: TheraOffice
Effective December 31, 2019
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: SwervePay Health Software and Services | 2.65% $0.25 | Flat Rate on Volume Per Transaction |
Device / Readers: M130's | $130.00 | Per Device |
Setup / Training | $149.00 | Per Location |
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Effective September 13, 2019 to December 31, 2019
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: SwervePay Health Pro Software & | 2.69% & $0.20 3.25% & $0.30 | Swipe Transactions Non-Swipe Transactions |
Device / Readers: M130's | $130.00 | Per Device |
Setup / Training | $149.00 | Per Location |
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Schedule A - Pricing: SwervePay Payment Processing 3.95
Effective November 5, 2019
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Merchant Services One Time Fees: ACH Return Fee Chargeback or Retrieveal Fee PCI Non Reporting Fee | 3.95% $15.00 $35.00 $25.00 | Processed Volume Per Return Per Chargeback / Retrieval Per Instance (monthly) |
Schedule A - Pricing: APEX Payment Processing 2.49
Effective November 5, 2019
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Merchant Services | 2.49% $0.20 | Processed Volume Per Transaction |
One Time Fees: ACH Return Fee Chargeback and Retrieval Fee PCI Non Reporting Fee | $15.00 $35.00 $25.00 | Per Return Per Dispute Per Month |
Schedule A - Pricing: Ontario 2.25
Effective March 25, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 2.25% | Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | ACH Return Fee Per Return Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Schedule A - Pricing: Ontario 2.50 Flat .25
Effective March 31, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 2.50% $0.25 | Processed Volume Per Transaction |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | ACH Return Fee Per Return Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Schedule A - Pricing: Ontario 2.75 Flat .25
Effective March 31, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 2.75% $0.25 | Processed Volume Per Transaction |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | ACH Return Fee Per Return Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Schedule A - SwervePay Health Enterprise 2.50 .30
Effective April 9, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.50% $0.30 | Processed Volume Per Transaction |
Other Fees Card Readers (M130's) Setup / Training ACH Return Fee Dispute Fee PCI Non Compliant Reporting Fee | $130.00 $549.00 $15.00 $35.00 $25.00 | Per Device One Time Fee Per Location Per Return Per Dispute Per Month Not Compliant |
Schedule A - Pricing: Ontario 2.05 Flat
Effective May 8, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 2.05% | Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | ACH Return Fee Per Return Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
Effective April 27, 2020 to May 8, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 2.05% | Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | ACH Return Fee Per Return Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
Effective April 27, 2020 to April 27, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 2.05% | Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | ACH Return Fee Per Return Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
Effective April 11, 2020 to April 27, 2020
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Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 2.05% | Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | ACH Return Fee Per Return Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
SwervePayPayfacSub-MerchantProcessingAgreement.OS.042020
Effective April 21, 2020
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SwervePay Sub-Merchant Processing Agreement
This SwervePay Sub-Merchant Processing Agreement (“Agreement”) is effective as of the date signed below (“Effective Date”) between the customer designated below (“Client”) and SwervePay, LLC (“Payment Facilitator”) governing Client’s use of Payment Facilitator’s payment processing services to accept credit cards, debit cards, ACH transactions and/or checks (together, the “Services” and individually, each a “Service”).
CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY USING THE SERVICES CLIENT ACCEPT THESE TERMS AND CONDITIONS. IF CLIENT DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY DISCONTINUE USE OF THE SERVICES.
- Services
The Services allow Client to accept payment card transactions, ACH transactions and other electronic payment transactions (collectively, “Payment Transactions”) into Client’s bank account(s) or a Payment Facilitator account (as determined by Payment Facilitator in its sole discretion) on a compatible computer and/or mobile device. The Services are licensed to Client, and Payment Facilitator owns all copyright, trade secret, patent, and other proprietary rights in the Services. Payment Facilitator is not a bank; Payment Facilitator is a registered payment facilitator that processes or directs the processing of payments Client receives from Client customers (each “Client Customer” and collectively, “Client Customers”). To do this, Payment Facilitator enters into agreements with other processors and banks. Client will be required to provide certain personal and/or business information to open an account with Payment Facilitator, which must be approved by Payment Facilitator prior to using the Services (the “Sub-Merchant Account”). Client must provide accurate and complete information to Payment Facilitator when opening the Sub-Merchant Account. Payment Facilitator may forward some or all of this information to its processor and to any other person or entity that has involvement in connection with the processing of any of Client’s Payment Transactions, including Client’s bank or other financial institutions and Card Organizations. If Client’s request to open a Sub-Merchant Account is approved, Payment Facilitator may request additional information from Client at any time. Payment Facilitator may also periodically obtain reports to determine whether Client continues to meet the requirements for a Sub-Merchant Account. In addition, Client may be required to enter into additional agreements as required by Payment Facilitator’s processors (each a “Payment Facilitator Processor” and collectively, “Payment Facilitator’s Processors”) or the card organizations, such as MasterCard, Visa, Discover Network or American Express (the “Card Organizations”). The Card Organizations and Payment Facilitator Processors require that Client and Payment Facilitator comply with all of their respective applicable bylaws, rules and regulations, which may be amended at any time (collectively, the “Rules”). Payment Facilitator may amend this Agreement to comply with such amendments. Portions of these rules and regulations applicable to Visa and MasterCard are available on the Visa and MasterCard websites.
2. Card Readers / Swipe Device
Once Client’s Sub-Merchant Account is approved, and if purchased (or alternate arrangements) or required for Client’s account, the swipe device(s) will be sent to Client at the address provided. Payment Facilitator does not warrant that the swipe device or the Services will be compatible with Client’s computer, mobile device or third-party carrier. Client’s use of any swipe device and the Services may also be subject to the terms of Client’s mobile device manufacturer and Client’s carrier. Payment Facilitator shall not be responsible for any damages caused by defects associated with any swipe devices used by Client with respect to Client’s business or any hacking of any of such swipe devices.
3. Sub-Merchant Account By establishing a Sub-Merchant Account, Client confirms that Client is 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 it operates. The Services may only be used within the United States of America. Client agrees that Payment Facilitator is authorized to contact and share information about Client’s Sub-Merchant Account with Client’s bank or other financial institution and all Card Organizations. Upon approval of Client’s Sub-Merchant Account and by accepting the terms of this Agreement, Client authorizes Payment Facilitator to hold, receive, and disburse funds on Client’s behalf. Client may terminate this authorization by closing Client’s Sub-Merchant Account. Client agrees that in using the Services, Client will do the following:
- Only send SMS receipts to Client Customers who have requested a receipt be delivered in that manner;
- Comply with all applicable laws and regulations and all requirements of: (i) Card Organizations applicable to merchants; and (ii) all Payment Facilitator Processors.
- Maintain the security of account login information Client receives as part of Client’s use of the Services.
- Client agrees that if Client loses Client’s computer or mobile device, or Client has reason to believe that Client’s Sub-Merchant Account is no longer secure, Client will immediately notify Payment Facilitator;
- Not accept payments in connection with any illegal activity, or any activity that is inconsistent with Client’s type of business;
- Not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (i) adult content; (ii) airline or cruise line; (iii) collection agency; (iv) credit counseling or identity protection services; (v) debt elimination or reduction services; (vi) distressed property sales and marketing; (vii) gambling establishments or gambling; (viii) no card present tobacco or pharmaceutical sales; (ix) multilevel marketing programs or goods or services sold through such systems; (x) goods or services sold through rebate or upsell programs; (xi) timeshare resales and related marketing of goods, services or properties; (xii) sales to from operations outside the United States of America; (xiii) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; (xiv) acceptance of credit cards, debit cards or other forms of payment at scrip dispensing terminals; (xv) buyer club activities or buyer club memberships; (xvi) inbound or outbound telemarketing services; or (xvii) continuity or subscription services generated from direct marketing activities.
- Use the Services only for lawful merchant activities as approved by Payment Facilitator and not in a manner that results in or may result in complaints, disputes, chargebacks, fees, fines or penalties; and
- Not knowingly submit any sales transaction (i) that adds any surcharge to the transaction, except to the extent authorized by the Rules or applicable law, (ii) that adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately, (iii) that represents the refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible or arises from the dishonor of a Cardholder’s personal check or from the acceptance of a Card at a terminal that dispenses scrip, (iv) that is not a valid transaction between the Client and a bona fide Cardholder, (v) that Client knows or should have known to be fraudulent or not authorized by the Cardholder, or that Client knows or should have known to be authorized by a Cardholder colluding with Client for a fraudulent purpose, (vi) until after the products are shipped the services are performed, and/or Client has completed the transaction, unless Client has obtained Cardholder consent for a recurring transaction, (vii) where a valid authorization was required but not obtained, (viii) where multiple authorizations for amounts less than the total sale amount have been obtained, (ix) which results in a disbursement of cash or cash equivalent to a Cardholder or (x) that establishes a maximum dollar sale transaction amount, except to the extent authorized by the Rules.
- Not submit any refund transaction: (i) that does not correlate to an original sales transaction from the Cardholder, (ii) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Cardholder for postage paid by the Cardholder to return merchandise in accordance with a policy applied consistently by Client to all Client Customers, (iii) for returned products that were acquired in a cash purchase from Client, (iv) that would cause an overdraft, or (v) more than three (3) business days following either: (A) a regulatory requirement granting a Cardholder’s right to a refund; or (B) a non-disputed Cardholder request.
- Not use any Cardholder data or other transaction data received from Payment Facilitator or Payment Facilitator Processor for any purpose not authorized by this Agreement.
- Not disclose any Cardholder data or other transaction data to any entity except for necessary disclosures to affected Cardholders, and through Payment Facilitator Processor to affected Card Organization entities.
- Not provide Payment Facilitator any inaccurate, incomplete, or misleading information.
- Provide Payment Facilitator with timely notification of events that have caused or could cause material changes in Client’s ability to fulfill Client’s obligations under this Agreement, including but not limited to (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; or (iii) actions by governmental or non-governmental agencies.
- Not transfer or attempt to transfer Client’s financial liability by asking or requiring Cardholders to waive their dispute rights.
- Not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
- Not submit transactions for entities that do not have their principal places of business in the United States
- Not use the Services to process cash advances.
4. Unauthorized Use, Compliance with Law
Client may only use the Services in compliance with all laws, rules, and regulations applicable to the use of the Services. Payment Facilitator may choose not to authorize or settle any transaction submitted to Payment Facilitator if Payment Facilitator believes the transaction is in violation of this Agreement or may cause harm to Client, Client Customers, Payment Facilitator, or Payment Facilitator’s processors. Client expressly authorizes Payment Facilitator to share information about Client, Client’s Sub-Merchant Account or Client’s transactions with Client’s bank(s) and other financial institutions and with law enforcement if Payment Facilitator believes the Services have been used for an illegal, unauthorized or criminal purpose. Unauthorized Use, Compliance with Law
Client agrees to pay the applicable fees set forth when Client signed up for the Services (“Fees”). Payment Facilitator reserves the right to change Fees at any time upon thirty (30) days after sending notice (by any means, including but not limited to email, text, regular mail or otherwise) prior to the effective date of the change. Client’s continued use of the Services indicates Client’s consent to the change in Fees. If Client does not consent to the change in Fees, Client must close Client’s Sub-Merchant Account, otherwise we shall be permitted to change or add such Fees thirty days following sending of the notice. Client further agrees that if unusual or unexpected transaction activity occurs on Client’s Sub-Merchant Account, Payment Facilitator has the right to hold funds while Payment Facilitator conducts an investigation into the processing activity. Payment Facilitator also has the right to request and to receive from Client’s documentation to support the transaction activity, including, but not be limited to, invoices, signed sales receipts, shipping documentation, and any other relevant documentation pertaining to a transaction or transactions in question.
5. Deposit of Sub-Merchant Account Funds
Client will establish and maintain with an Automated Clearing House (“ACH”) receiving depository institution acceptable to Payment Facilitator’s Processors one or more commercial checking account(s) based in the United States to facilitate payment for Payment Transactions. Client will maintain sufficient funds in the account to accommodate all transactions, including, but not limited to, Fees, fines and chargebacks. Client irrevocably authorizes the debit of the account for chargebacks, Fees and any other penalties, fees or payments or monies due under this Agreement to Payment Facilitator or its Payment Facilitator Processors with respect to Client’s Sub-Merchant Account (collectively, “Indebtedness to Payment Facilitator”). Once Client’s bank account is validated, Payment Facilitator or Payment Facilitator’s Processor(s) will deposit to Client’s Sub-Merchant Account the amounts actually received by Payment Facilitator for completed transactions submitted through the Services no later than two days following the end of every business day. Payments to Client’s bank account will normally register within 2-3 business days. Each transaction will be considered complete when Payment Facilitator has received the funds and when such funds have been accepted by the designated bank or financial institution. Payment Facilitator shall have the right to deduct from Client’s Sub-Merchant Account: (i) following the end of each month during the term of this Agreement any Fees owing from Client to Payment Facilitator or any Payment Facilitator Processor; and (ii) immediately at any time, any Indebtedness to Payment Facilitator.
Should Payment Facilitator need to conduct an investigation or resolve any dispute related to Client’s Sub-Merchant Account (including but not limited to issues around possible Prohibited Transactions or other breaches by Client of this Agreement or applicable Payment Facilitator, Payment Facilitator Processor or Card Organization Rules), Payment Facilitator may defer payment or restrict access to Client’s funds for as long as Payment Facilitator deems necessary. Payment Facilitator also may defer payment or restrict access to Client’s funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
6. Sub-Merchant Account Activity
Client is responsible for monitoring Client’s transactions and ensuring that Payment Facilitator’s payments to Client are correct. Client agrees to contact Payment Facilitator immediately if Client discovers an error or an unauthorized transaction on Client’s Sub-Merchant Account. Client must notify Payment Facilitator of any errors in payments made to Client within thirty (30) days of the error or unauthorized transaction. Client’s failure to notify Payment Facilitator of any such errors within the applicable thirty (30) day period will constitute a waiver of any right or claim to amounts owed to Client.
Client is responsible for reconciling all transactions with Client’s Sub-Merchant Account and keeping permanent records of such transactions.
7. Reserve Account/Security Interest
For the purpose of providing a source of funds to pay damages which Payment Facilitator or its Payment Facilitator Processors may potentially suffer under this Agreement and to pay Indebtedness to Payment Facilitator or other amounts Client may owe Payment Facilitator under this Agreement or assessed by any Payment Facilitator Processor, a separate reserve account (the “Reserve Account”) may be established from time to time by Client, Payment Facilitator, or any Payment Facilitator Processor to secure Client’s current and/or future potential obligations as reasonably determined by Payment Facilitator or any Payment Facilitator Processor. The Reserve Account will be in an amount as reasonably determined by Payment Facilitator or its applicable Payment Facilitator Processor(s) to protect their present or future interests and may be raised, reduced or removed at any time by Payment Facilitator or any Payment Facilitator Processor, in Payment Facilitator’s sole discretion. If there are not sufficient funds in Client’s Reserve Account, Payment Facilitator has the right of recoupment and set-off and may fund the Reserve Account from any funding source associated with Client’s Sub-Merchant Account, including but not limited to any funds due to Client under this Agreement, or available in Client’s bank account. Client grants Payment Facilitator a security interest in and lien on any and all funds held in (a) any Reserve Account, (b) all funds at any time in the Sub-Merchant Account, regardless of the source of funds, and (c) any amounts due to Client under this Agreement. Client agrees to provide other security to Payment Facilitator upon request to secure Client’s obligations under this Agreement. This security interest may be exercised by Payment Facilitator or any Payment Facilitator Processor or any of Payment Facilitator or any Payment Facilitator Processor’s assigns, without notice or demand of any kind by making an immediate withdrawal, debit or freezing of Client’s assets. Payment Facilitator may also make reversals of deposits or transfers made to Client’s Sub-Merchant Account. Client agrees to execute any additional documentation required for Payment Facilitator to perfect Payment Facilitator’s security interest, including such form(s) of control agreement(s) as Payment Facilitator may from time to time require regarding dominion of the funds referenced in Sections 8(a), 8(b) and 8(c) hereof. Client further agrees to pay to Payment Facilitator upon demand any Indebtedness Owing to Payment Facilitator or other monies owing by Client to Payment Facilitator or any Payment Facilitator Processor pursuant to this Agreement or otherwise.
8. Honoring Cards
- Whenever possible, Client will identify the person presenting a Card and purporting to be a person authorized to use a Card and check the expiration date and signature on each Card. Client will not honor a Card if the Card has expired or if Client determines that the account number on the Card does not match the account number on the Card’s magnetic stripe or the account number is listed on a current Electronic Warning Bulletin file.
- Client is responsible for ensuring that the cardholder of each Card understands that Client is responsible for the transaction, including the goods or services that are the subject of the transaction. In addition, Client is solely responsible for all customer service issues relating to Client’s goods or services, including pricing, fulfillment, order cancellation, returns, refunds and adjustments, warranty, and support.
- Client will not add any amount to the posted price of goods or services Client offers as a condition of paying with a Card that is not consistent with the Card Organization Rules and laws.
- Client will properly disclose to the holder of each form of credit card, debit card or other card (each a “Card” and collectively, the “Cards”) that is or may be used in connection with any of the transactions subject to this Agreement (each a “Cardholder”), at the time of transaction, any limitation Client has on accepting returned merchandise. Client’s return policy must be in accordance with the Card Organization Rules. If Client’s refund policy prohibits returns or is unsatisfactory to the Cardholder, Client may still receive a Chargeback relating to such transactions.
- Client agrees to make a written receipt available to the Cardholder for any transaction. Client may provide the Cardholder the option to decline a written receipt. Client may also offer electronic receipts delivered by SMS or e-mail to the Cardholder.
9. Taxes
Client is responsible for collecting, reporting and remitting any taxes required to be collected, paid or withheld in connection with the Services (“Taxes”). Payment Facilitator is not responsible to determine whether or not Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction.
If in a given calendar year Client receives: (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Payment Facilitator or its Payment Facilitator processor(s) is authorized to report annually to the Internal Revenue Service (“IRS”), as required by law, Client’s name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments Client receives in a calendar year, and the total dollar amount of the payments Client receives for each month in a calendar year.
10. Returns
By using the Services, Client agrees to process returns of, and provide refunds and adjustments for, Client’s goods or services through Client’s Sub-Merchant Account in accordance with this Agreement, each Payment Facilitator Processor’s Rules and applicable Card Organization Rules.
11. Chargebacks
The amount of a transaction may be reversed or charged back to Client’s Sub-Merchant Account (each a “Chargeback”) for reasons, including, but not limited to, any one of the following: (a) an invalid Card account is submitted by Client; (b) neither the Cardholder nor a person authorized by the Cardholder received the goods or services requested; (c) the Cardholder disputes the quality of the goods or services received; (d) the Cardholder never received a credit for a returned item or a cancelled order; (e) the Cardholder was charged incorrectly; (f) the authorization code is invalid; (g) the Card was expired or not effective; (h) the transaction is disputed; (i) the transaction is reversed by the Card Organization, any Payment Facilitator Processor, or a financial institution for any reason, (j) the transaction was not authorized; or (k) the transaction is allegedly unlawful, suspicious, or believed by Payment Facilitator to be in violation of the terms of this Agreement.
For any transaction that results in a Chargeback, Payment Facilitator may withhold the Chargeback amount in the Reserve Account. Client may be subject to a chargeback on sales for a minimum period of 360 days from the date the sale was entered into the processing system. Payment Facilitator may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by each applicable Payment Facilitator Processor from Client’s Sub-Merchant Account, Client’s Reserve Account, if any, any proceeds due to Client, or Client’s bank account. If Client has pending Chargebacks or Payment Facilitator reasonably believes that a Chargeback is likely, Payment Facilitator may withhold or delay payments from Client’s Sub-Merchant Account for the later of: (i) 270 days following termination of this Agreement; (ii) 180 days from Client’s last Chargeback; or (iii) 30 days following Client’s delivery of written notification disputing the Chargeback in question and the basis therefor with appropriate documentation in accordance with Section 13 below. Client agrees to respond to all Chargebacks promptly. If Payment Facilitator is unable to recover funds related to a Chargeback for which Client is liable, Client will pay Payment Facilitator the full amount of the Chargeback immediately upon demand. Client agrees to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of Payment Facilitator related to Payment Facilitator’s efforts to collect any Sub-Merchant Account deficit balances unpaid by Client.
If Payment Facilitator determines that Client is incurring an excessive amount of Chargebacks, Client may be subject to a Card Organization’s monitoring program. Client is responsible for monitoring Client’s monthly chargeback percentage and developing chargeback reduction programs as required by the Card Organizations. Payment Facilitator may also establish controls or conditions governing Client’s Sub-Merchant Account, including but not limited to (a) an increase in processing fees, (b) creating a Reserve Account in an amount reasonably determined by Payment Facilitator to cover anticipated Chargebacks and related fees, (c) delaying payments, and (d) terminating or suspending the Services and this Agreement. Failure to establish such controls or conditions as established by Payment Facilitator within the specified period (or ten days following notification of such controls or conditions if no time period is specified) shall constitute a breach by Client of this Agreement.
12. Processing Errors
Client agrees to promptly notify Payment Facilitator of any errors within thirty (30) days after the date of the asserted error or missing transaction(s). If Client does not notify Payment Facilitator within the 30-day period, Payment Facilitator is not liable for, nor obligated to investigate, correct, such asserted error and Client agrees that all claims related to such error are waived. If Payment Facilitator discovers processing errors, it will attempt to rectify processing errors.
13. Privacy and Legal Notices; HIPAA, TCPA, FDCPA
Client agrees to keep information received from Cardholders confidential. Client will not disclose to any third party any Cardholder account information other personal information except in connection with the Services and in accordance with the Card Organization Rules or applicable law (including but not limited as required under the Health Insurance Portability and Accountability Act or “HIPAA”). Client must keep all Cardholder information in a secure manner to prevent disclosure to unauthorized parties. Client may not disclose or distribute any such information to a third party or use the information for marketing purposes unless Client receives the express consent of the user. Furthermore, Client agrees to be subject to Payment Facilitator’s privacy policy and any other legal notices located at www.swervepay.com.
Client agrees not to use the Services in violation of any local, state or Federal laws, rules or regulations, or orders, including, but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”), Fair Debt Collection Practices Act ("FDCPA") and HIPAA and its related Rules and Regulations, and agree to indemnify, defend and hold Payment Facilitator and its Affiliated Entities (defined below) harmless from and against all Losses (defined below) that are incurred, suffered or paid, directly or indirectly, by any of them in connection with, arising out of or resulting from any claim alleging improper or illegal use of any of the Services provided to Client and/or Client Customers by Payment Facilitator or any of its Affiliated Entities, including but not limited to any claims arising from following Client’s direction for communications to Client Customers as to frequency of sending messages by any medium, including but not limited to text, e-mail, facsimile or paper regarding any matter, including but not limited to past due sums, deposits for anticipated procedures, estimates of cost of procedures, appointment reminders, payment receipts or other communications. For purposes of Section 13, indemnification of Payment Facilitator and its Affiliated Entities includes, but is not limited to payment by Client of any judgment, settlement, claim, penalties and costs, interest, reasonable attorneys’ fees and cost of defense, if Payment Facilitator or an Affiliated Entity is named as a party to any action or suit related to delivery of communications to Client Customer or otherwise subject to this indemnification. In such an event, Payment Facilitator and its Affiliated Entities shall have the option at any time of either being defended by Client’s counsel or providing their own defense to the action (subject to regular monthly reimbursement from Client for costs and fees incurred, regardless of the outcome of such action). For purposes of this Section 13: (i) “Losses” means any and all losses, liabilities, damages, penalties, obligations, awards, fines, deficiencies, demands, interest, costs and expenses (including reasonable attorneys’ fees, consultants’ fees and other professional fees and disbursements); and (ii) “Affiliated Entity” shall mean any “affiliate” of Payment Facilitator (as such term is construed under Rule 405 promulgated under the Securities Act of 1933), as well as, without limitation, any independent contractor, business partner, solution extender, or service provider under contract with Payment Facilitator or assists Payment Facilitator in delivering any of the Services provided by Payment Facilitator pursuant to this Agreement.
14. Consent to Electronic Notices
From time to time, Payment Facilitator may be required to provide to Client certain notices, disclosures or information about Client’s Sub-Merchant Account or in connection with the Services. Client agrees that this information may be provided to Client by posting it on Payment Facilitator’s website or mobile app, or by sending Client an e-mail to the e-mail of record with Payment Facilitator when Client signed up for the Services. Notices provided to Client via e-mail will be deemed given and received on the transmission date of the e-mail. Notices posted to the website or mobile app will be deemed given and received within 24 hours of posting.
15. Compliance with Law: Payment Card Industry Data Security Standards Non-Disclosure & Storage of Cardholder and Transaction Information Requirements
While Payment Facilitator and/or its Affiliates use advanced security features to ensure the security and safety of Client’s personal information and that of Client Customers, Payment Facilitator cannot absolutely guarantee the security of any of such personal information from unauthorized access, loss or disclosure by third parties. Client confirms and certifies that: (a) Client is, and shall be, in full compliance during the term of this Agreement with all laws, statutes and federal and/or state regulations, as well as the Rules as may be applicable to Client, Client’s business and any Payment Transaction; (b) all acceptances of Cards as a form of payments via the Internet shall at a minimum, include the following information and processes on their Internet sites: (i) prominent display of Sub-Merchant name as “Merchant” and as the name that will appear on the cardholder statement, (ii) a complete description of good or services offered; (iii) delivery standards including method and time for delivery; (iv) terms and conditions of purchase, and export or legal descriptions; (v) return/refund policy described in reasonable details; (vi) opportunity to review and confirm order prior to order submission; (vii) secure method for payment data transmission; (viii) currency of transaction used to make payment (USD); (ix) disclosure of Sub-Merchant outlets to country of origin; (x) display of card association or payment network logos; (xi) clear disclosure of Sub-Merchant privacy policy; (xii) alternate Sub-Merchant contact info options; and (xiii) display of web hosting company contact information; (c) it (and any outside agent that it may utilize to submit Transactions to Payment Facilitator) complies and will comply with the Payment Card Data Security Standards (“PCI DSS”) and Sub-Merchant hereby agrees to pay any fines and penalties that may be assessed by Visa, MasterCard or Discover or any other Card Organization as a result of Sub-Merchant’s non-compliance with the requirements of PCI DSS, any data breaches, or by its failure to accurately validate its compliance. Sub-Merchant will review and monitor the requirements at http://www.visa.com/CISP, and http://www.pcisecuritystandards.org in order to determine the timeframes and mandates for compliance under PCI DSS. The foregoing is an on-going obligation during the term of this Agreement and as this Agreement may be renewed. Sub-Merchant acknowledges and understands that Sub-Merchant may be prohibited from participating in Visa, MasterCard or Discover or other Card Organization programs if it is determined that Sub-Merchant is non-compliant. The following lists certain (but not all) of the current PCI DSS requirements, all of which Sub-Merchant shall comply with, if applicable: (i) install and maintain a working network firewall to protect data accessible via the Internet; (ii) keep security patches up to date; (iii) encrypt stored data; (iv) encrypt data sent across networks; (v) use and regularly update anti-virus software; (vi) restrict access to data to business (“need to know”); (vii) assign a unique ID to each person with computer access to data; (viii) not use Payment Facilitator supplied defaults for system passwords and security parameters; (ix) track access data by unique ID; (x) maintain a policy that addresses information security for employees and contractors; and (xi) restrict physical access to Cardholder information. Sub-Merchant shall notify Payment Facilitator if it utilizes any third-party that provides payment related services, directly or indirectly, and/or stores, transmits, or processes Cardholder data. Sub-Merchant is responsible for ensuring compliance of any such third-parties with PCI DSS. In the event of the failure, including bankruptcy, insolvency, or other suspension of Sub-Merchant’s business operations, Sub-Merchant shall not sell, transfer, or disclose any materials that contain Cardholder account numbers, personal information, or other Cardholder transaction information to third-parties (collectively, “Cardholder Information”). Sub-Merchant on behalf of itself and each of its agents and Affiliates shall either return this Cardholder Information to Payment Facilitator, or provide Payment Facilitator with acceptable proof of destruction of Cardholder Information. If Sub-Merchant is undergoing a forensic investigation regarding PCI DSS compliance at the time Sub-Merchant executes this Agreement, then Sub-Merchant shall fully cooperate with the investigation until completed. Payment Facilitator warrants that it and each of its Affiliates complies with the applicable required PCI DSS regulations and that Payment Facilitator and each of its Affiliates is a PCI DSS validated service provider.
16. Termination of Services
Client may cancel the Services or terminate this Agreement at any time, with, or without cause. Cancellation of the Services will become immediate upon Client’s notice to Payment Facilitator. Cancellation of the Services or termination of this Agreement will not alter Client’s obligation to pay all amounts owed to Payment Facilitator, including any Fees, and Client will continue to be bound by this Agreement, which obligations shall survive any termination of this Agreement. Upon termination of this Agreement, the license granted under this Agreement shall cease and Payment Facilitator shall not be liable to Client or any third party for such termination or access to the Services.
Upon termination of this Agreement, any pending transactions will be cancelled unless processed by Payment Facilitator (or its Payment Facilitator Processors) in Payment Facilitator’s sole discretion. Subject to Section 18 below, any funds that Payment Facilitator is holding in custody for Client at the time of termination, less any applicable Fees chargebacks, penalties or payments due under this Agreement, will be paid out to Client according to Client’s payment schedule (consistent with past practice and subject to Payment Facilitator’s rights to withhold payment for monies owed to Payment Facilitator or reserves established by Payment Facilitator). If an investigation is pending at the time Client closes Client’s Sub-Merchant Account, Payment Facilitator may hold Client’s funds until the investigation is completed. Payment Facilitator may hold all funds for up to 180 days from the date of the last transaction or 180 days from the date of the last chargeback, whichever is the later.
Payment Facilitator may terminate this Agreement and close Client’s Sub-Merchant Account for any reason or no reason at any time upon notice to Client, and without liability to Client for closing Client’s Sub-Merchant Account. Payment Facilitator may also suspend or terminate the Services and access to Client’s Sub-Merchant Account if Client: (a) have violated the terms of this Agreement, the Card Organization Rules, any other agreement Client has with Payment Facilitator, (b) pose an unacceptable credit or fraud risk to Payment Facilitator or any Payment Facilitator Processor, as determined by Payment Facilitator in its sole discretion, (c) fall outside the credit policy approved by a Payment Facilitator Processor, of if requested by a Card Organization or governmental entity, (d) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct, or (e) breach any of Client’s obligations under this Agreement. Payment Facilitator also reserves the right to add Client’s Sub-Merchant Account to the Terminated Merchant File, if Client’s Sub-Merchant Account meets the criteria defined by MasterCard.
17. Effect of Termination
Any termination of this Agreement does not relieve Client of any obligations to pay any Fees, penalties or costs accrued prior to the termination and any other amounts owed by Client to Payment Facilitator as provided in this Agreement. Client will continue to be responsible for any and all Chargebacks, credits and adjustments and all other amounts then due, or which later become due. In connection with termination, Payment Facilitator or its applicable Payment Facilitator Processor(s) may require the establishment and maintenance of a Reserve Account by Client in accordance with Section 7.
Subject to the terms and conditions of this Agreement, Payment Facilitator grants Client a personal, limited, non-exclusive, non-transferable license, during such time that Client satisfies the conditions set forth in this Agreement, to electronically access and use the Services solely for the purpose described herein. Except as expressly allowed herein or by applicable law, Client is not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following: (i) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way any components of the Services; (ii) permit any third party to benefit from the use or functionality of the Services via a rental, lease, timesharing, service bureau, or other arrangement; (iii) transfer any of the rights granted to Client under this Agreement; (iv) work around any technical limitations in the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer the any component of Services except as otherwise permitted by applicable law; (v) perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or the use of the Services by Payment Facilitator’s other licensees or customers; or (vi) export the Services, directly or indirectly.
18. Reservation of Rights and Ownership
Payment Facilitator reserves all rights not expressly granted to Client in this Agreement. Components of the Services are protected by copyright, trade secret and other intellectual property laws. Payment Facilitator and its licensors own the title, copyright, and other worldwide intellectual property rights in the Services and all copies of the Services. This Agreement does not grant Client any rights to trademarks or service marks of Payment Facilitator. This Agreement does not limit any rights that Payment Facilitator may have under trade secret, copyright, patent or other laws.
19. Privacy & Use of Client’s Information
The Services may utilize SMS messages delivered through wireless service providers, such as AT&T, Sprint, Verizon, etc. Client acknowledges that any SMS message goes through Client and the message recipient’s wireless service provider’s systems. The privacy statement of each associated wireless service provider applies as the message passes through those systems. As a requirement to permit usage of SMS systems some wireless service providers may require that Payment Facilitator disclose to them information about users of the Services and the nature of business to be conducted. In this situation the information will be used to ensure legitimate use of the SMS systems and not for marketing purposes. Client acknowledges and agrees that Payment Facilitator may provide information about Client to wireless service providers as described above. Client also acknowledges that in accessing the Services Client may upload or enter certain data from Client’s account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. Client may be made aware of or offered services, features, products, applications, online communities, or promotions provided by Payment Facilitator or Payment Facilitator’s Affiliates. Installing this application grants Payment Facilitator the right to send the identifiers for Client’s mobile device to third parties for the use of advertising purposes. Client is responsible for securely managing access to Client’s data and to the Services. Client agrees to be bound by the applicable Payment Facilitator privacy policy, as it may be amended from time to time in accordance with its terms.
20. Disclaimer of Warranties
THE SERVICES AND ANY CONTENT ACCESSIBLE THROUGH THE SERVICES ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYMENT FACILITATOR, ITS AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, PAYMENT FACILITATOR PROCESSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DEALERS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) DISCLAIM ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, CONTENT, AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NON- INFRINGEMENT. PAYMENT FACILITATOR DOES NOT WARRANT THAT THE SOFTWARE, THE SERVICES, THE SWIPE DEVICE, THIRD PARTY SERVICES OR ANY ONLINE SERVICES ARE SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, OR ERRORS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. FURTHER, PAYMENT FACILITATOR DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT OR DATA THROUGH THE SERVICES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT. THIS WARRANTY GIVES CLIENT SPECIFIC LEGAL RIGHTS, AND CLIENT MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
21. Limitation of Liability and Damages
CLIENT AGREE THAT IN NO EVENT WILL PAYMENT FACILITATOR, ANY PAYMENT FACILITATOR PROCESSOR OR ANY AFFILIATE OF PAYMENT FACILITATOR BE LIABLE FOR ANY LOSS, COST, LIABILITY OR DAMAGE INCURRED AS A RESULT OF YOUR USE OF THE SERVICES, THE TERMINATION OF SERVICES OR PARTICIPATION IN THIRD PARTY SERVICES. THE ENTIRE CUMULATIVE LIABILITY OF PAYMENT FACILITATOR, PAYMENT FACILITATOR’S AFFILIATES, ITS SUPPLIERS AND PAYMENT FACILITATOR PROCESSORS FOR ANY REASON ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OF THE SERVICES SHALL BE LIMITED AS PROVIDED HEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYMENT FACILITATOR, ITS AFFILIATES, ITS PAYMENT FACILITATOR PROCESSORS AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, THE LOSS, CORRUPTION OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS, USE OF THE SOFTWARE WITH HARDWARE OR OTHER SOFTWARE THAT DOES NOT MEET PAYMENT FACILITATOR’S SYSTEMS REQUIREMENTS OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY OF PAYMENT FACILITATOR, ITS AFFILIATES, ITS SUPPLIERS, ITS PAYMENT FACILITATOR PROCESSORS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CLIENT. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PAYMENT FACILITATOR AND CLIENT. PAYMENT FACILITATOR WOULD NOT HAVE PROVIDED THE SERVICES WITHOUT SUCH LIMITATIONS.
22. Consent
Client’s consent to do business electronically and receive electronic communications from Payment Facilitator, and Payment Facilitator’s agreement to do so covers all transactions Client conducts through the Services for as long as Client remains a licensee of the Services. If Client later decides that Client does not want to receive future communications electronically, Client may contact Payment Facilitator with withdrawal in writing of Client’s consent and discontinue the use of the Services.
23. Indemnification
Client agrees to indemnify, defend and hold Payment Facilitator, its Affiliates, its Payment Facilitator Processors, contractors, employees, agents and its third party suppliers, licensors, attorneys and partners (collectively, the “Payment Facilitator Indemnitees”) harmless from any and all claims, losses, damages, and liabilities, costs and expenses, including without limitation legal fees and expenses, arising out of or related to Client’s use or misuse of the Services, any violation by Client of this Agreement, or any breach of the representations, warranties, and covenants made by Client in this Agreement. Payment Facilitator reserves the right, at Client’s expense, to assume the exclusive defense and control of any matter for which Client is required to indemnify any of Payment Facilitator Indemnitees, including rights to settle, and Client agrees to cooperate with the defense and settlement of these claims. Payment Facilitator will use reasonable efforts to notify Client of any claim, action, or proceeding brought by a third party that is subject to the foregoing indemnification upon becoming aware of it.
24. Amendment
Please review the Agreement periodically on Payment Facilitator’s website provided to Client for additional terms and changes. Payment Facilitator has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to, Fees, terms, Internet-based services, pricing, technical support options, and other product-related policies, at any time upon notice by any means Payment Facilitator determines in its discretion to be reasonable. Client’s continued use of the Services after Payment Facilitator’s publication of any such changes shall constitute Client’s acceptance of this Agreement as modified.
25. Third Party Services
In connection with Client’s use of the Services, Client may be made aware of services, products, offers and promotions provided by third parties, and not by Payment Facilitator (“Third Party Services”). If Client decides to use Third Party Services, Client is responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing any Third Party Services. Client authorizes Payment Facilitator to use and disclose Client’s contact information, including name and address, for the purpose of making the Third Party Services Client chooses available to Client. Client agrees that the third party, and not Payment Facilitator, is responsible for the performance of the Third Party Services.
26. Export Restrictions
Client acknowledges that the Services are subject to the U.S. export controls regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII) and that Client will comply with all applicable laws and regulations. Client will not export or re-export the Services, or portion thereof, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end user, or to any end user who Client knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons.
27. Representations and Warranties
Client represents and warrants to Payment Facilitator that: (a) if an individual, Client is at least eighteen (18) years of age; (b) Client is eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by Client when Client registered is Client’s name or business name under which Client sells goods and services; (d) any sales transaction submitted by Client will represent a bona fide sale by Client; (e) any sales transactions submitted by Client will accurately describe the goods and/or services sold and delivered to a purchaser; (f) Client will fulfill all of Client’s obligations to each of Client Customers for which Client submits a transaction and will be responsible for and resolve any customer dispute or complaint directly with the purchaser and will be financially liable to Payment Facilitator for transactions entered into with purchasers; (g) Client and all transactions initiated by Client will comply with all federal, state, and local laws, rules, and regulations applicable to Client and/or Client’s business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no sales transaction submitted by Client through the Services will represent a sale to any principal, partner, proprietor, or owner of Client’s entity or any of Client’s other Affiliates; (i) Client will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (j) Client’s use of the Services will be in compliance with this Agreement; (k) Client agrees to follow the applicable Card brand operating Rules and regulations; and (l) Client is not engaged in any of the businesses or in any of the activities listed on Exhibit A, attached hereto and incorporated herein by reference.
28. Miscellaneous
Except as expressly set forth in this Agreement, this Agreement is a complete statement of the agreement between Client and Payment Facilitator and sets forth the entire liability of Payment Facilitator, its Payment Facilitator Processors, its Affiliates and its suppliers and Client’s exclusive remedy with respect to the Services and Third Party Services and their use. The suppliers, agents, employees, distributors, and dealers of Payment Facilitator are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Payment Facilitator. Any waiver of the terms herein by Payment Facilitator must be in a writing signed by an authorized officer of Payment Facilitator and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement may not be assigned by Client without the prior written approval of Payment Facilitator, but may be assigned without Client’s consent by Payment Facilitator without restriction. Any assignment in violation of this Section will be void. This Agreement will be governed by Illinois law, without regard to its conflicts of law principles, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in Cook County, Illinois or federal court for the Northern District of Illinois for the resolution of any dispute with respect to the this Agreement or any of the Services called for herein. Client hereby waives Client’s right to trial by jury with respect to any judicial proceeding relative to this Agreement or any of the Services called for herein. For purposes of this Agreement, the term “Affiliate” shall mean a person or entity controlled by or under common control with another person or entity, as the term “affiliate” is construed under Rule 405 promulgated under the Securities Act of 1933 as amended. All rights and obligations of the parties hereto accruing under this Agreement during the term of this Agreement shall survive any termination of this Agreement. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. This Agreement may be executed in several counterparts, whether by original, photocopy, facsimile, email pdf or electronic signature, both of which when taken together shall constitute one valid binding Agreement. By clicking via the internet or other electronic media that Client agrees to the terms of this Agreement, this shall constitute the counterpart electronic signature by both Client and Payment Facilitator to be bound by the terms of this Agreement. Any notice required hereunder shall be deemed given if delivered in writing in person or sent by email to the email address of the other party set forth below or if sent by Federal Express or other bonded courier one business day after sent via next business day or same business day delivery to the address of the party set forth below to three business days after deposit in the U.S. Mail by either registered or certified mail, addressed to the party entitled to notice at the address set forth below, or if a party delivers notice of a change in address, then the delivery shall be made to the most recent address provided by notice of the party changing his, her or its address as set forth in such notice. If no address is designated by Client below, then the address shall be Client’s main corporate address as set forth on Client’s main corporate website.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date of full execution of this Agreement.
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By: {{{Customer_Signor}}} | |
Its: {{{Customer_Signor_Title}}} | |
Date of Execution: {{{Todays_Date}}} | |
Address: {{{Customer_Street_Address}}} {{{Customer_City}}}. {{{Customer_State}}} {{{Customer_ZipCode}}} | |
Email: {{{Customer_Signor_Email}}} |
15807945
EXHIBIT A
PROHIBITED BUSINESSES AND ACTIVITIES
The following businesses and activities are strictly prohibited, unless otherwise agreed to by Payment Facilitator and Payment Facilitator Processors:
- Age Restricted Products or Services
- Any business where the anticipated % of International Card Sales is expected to be greater than 20% of total sales
- Bail Bond Services or Bankruptcy Lawyers
- Career Placement or Advice Center Businesses
- Crowd Sourced Fundraising
- Dating Services
- Delayed Delivery Businesses where the good or service provided is not shipped, delivered or fulfilled when the card transaction is processed but is to occur at a future date
- Online Personal Computer Technical Support
- Personal Enhancement Products and/or Nutraceuticals
- Psychic Services
- Shipping or Forwarding Brokers
- Travel Agencies or Tour Operators
- Any product, service or activity that is deceptive, unfair, predatory or prohibited by one or more Card Brands
- Any merchant selling goods or services that represent a violation of any law, statute or regulation
- Any merchant operating outside the United States
- Any merchant submitting sales for payment that resulted from another commercial entity providing goods or services to the cardholder, including those businesses that may otherwise qualify themselves as a Payment Service Company or Payment Facilitator
- Any 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 merchants accepting a card as payment for a dishonored check or for an item deemed uncollectible by another merchant
- Loan payments conducted on a Visa branded credit card
- Adult entertainment and/or adult content websites including Electronic Commerce adult content (videotext) merchants that would include MCC’s 5967,7273 and 7841
- Buyer Clubs/Membership Clubs
- 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
- Gambling Activities and Establishments including MCC 7995, including lotteries, internet gaming, daily fantasy sports, contests, sweepstakes, “special incentives” or offering of prizes as an inducement to purchase goods or services
- Infomercial merchants
- Internet Pharmacies
- Multi-Level Marketing Businesses
- Outbound Telemarketers and Telecom merchants including MCC’s 4814,4816, and 5966
- Payment Facilitators
- Rebate-Based Businesses
- Up-Selling merchants
- Any merchant that accepts a card at a scrip-dispensing terminal
- Airlines including Charter Airlines
- Bestiality
- Bidding Fee Auctions including Penny Auctions
- Brand or Reputational damaging, potential or otherwise, activities including Child Pornography, Escort Services, Mail Order Brides, Occult
- Collection Agencies
- Commodity Trading or Security Trading
- Credit Counseling or Credit Repair Services
- Credit Protection or Identity Theft Protection Services
- Cruise Lines
- Currency Exchanges or Dealers
- Debt Elimination, Debt Reduction or Debt Consulting Services
- Digital Wallet or Prepaid Companies
- Discount Buying Memberships/Clubs
- Discount Medical or Dental plans including Discount Insurance
- Discount Coupon merchants or Online Sites
- Distressed Property Sales and/or Marketing
- Drug Paraphernalia
- e-Cigarettes
- Firearms and weapons including Ammunition
- 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
- Marijuana dispensaries and related products or services
- Money Transfer, Wire Transfers, Money Orders, Transmitters, and Check Cashing including merchants required to be registered as Money Service Business
- ”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 periodically and/or a significantly larger amount
- Pawn Shop
- Prepaid Phone Cards
- Prepaid Phone Services
- Pseudo Pharmaceuticals
- 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
- Transacting Virtual Currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world
21916745.3
Effective April 21, 2020 to April 21, 2020
DownloadTable of Contents
SwervePay Sub-Merchant Processing Agreement
This SwervePay Sub-Merchant Processing Agreement (“Agreement”) is effective as of the date signed below (“Effective Date”) between the customer designated below (“Client”) and SwervePay, LLC (“Payment Facilitator”) governing Client’s use of Payment Facilitator’s payment processing services to accept credit cards, debit cards, ACH transactions and/or checks (together, the “Services” and individually, each a “Service”).
CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY USING THE SERVICES CLIENT ACCEPT THESE TERMS AND CONDITIONS. IF CLIENT DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY DISCONTINUE USE OF THE SERVICES.
- Services
The Services allow Client to accept payment card transactions, ACH transactions and other electronic payment transactions (collectively, “Payment Transactions”) into Client’s bank account(s) or a Payment Facilitator account (as determined by Payment Facilitator in its sole discretion) on a compatible computer and/or mobile device. The Services are licensed to Client, and Payment Facilitator owns all copyright, trade secret, patent, and other proprietary rights in the Services. Payment Facilitator is not a bank; Payment Facilitator is a registered payment facilitator that processes or directs the processing of payments Client receives from Client customers (each “Client Customer” and collectively, “Client Customers”). To do this, Payment Facilitator enters into agreements with other processors and banks. Client will be required to provide certain personal and/or business information to open an account with Payment Facilitator, which must be approved by Payment Facilitator prior to using the Services (the “Sub-Merchant Account”). Client must provide accurate and complete information to Payment Facilitator when opening the Sub-Merchant Account. Payment Facilitator may forward some or all of this information to its processor and to any other person or entity that has involvement in connection with the processing of any of Client’s Payment Transactions, including Client’s bank or other financial institutions and Card Organizations. If Client’s request to open a Sub-Merchant Account is approved, Payment Facilitator may request additional information from Client at any time. Payment Facilitator may also periodically obtain reports to determine whether Client continues to meet the requirements for a Sub-Merchant Account. In addition, Client may be required to enter into additional agreements as required by Payment Facilitator’s processors (each a “Payment Facilitator Processor” and collectively, “Payment Facilitator’s Processors”) or the card organizations, such as MasterCard, Visa, Discover Network or American Express (the “Card Organizations”). The Card Organizations and Payment Facilitator Processors require that Client and Payment Facilitator comply with all of their respective applicable bylaws, rules and regulations, which may be amended at any time (collectively, the “Rules”). Payment Facilitator may amend this Agreement to comply with such amendments. Portions of these rules and regulations applicable to Visa and MasterCard are available on the Visa and MasterCard websites.
2. Card Readers / Swipe Device
Once Client’s Sub-Merchant Account is approved, and if purchased (or alternate arrangements) or required for Client’s account, the swipe device(s) will be sent to Client at the address provided. Payment Facilitator does not warrant that the swipe device or the Services will be compatible with Client’s computer, mobile device or third-party carrier. Client’s use of any swipe device and the Services may also be subject to the terms of Client’s mobile device manufacturer and Client’s carrier. Payment Facilitator shall not be responsible for any damages caused by defects associated with any swipe devices used by Client with respect to Client’s business or any hacking of any of such swipe devices.
3. Sub-Merchant Account By establishing a Sub-Merchant Account, Client confirms that Client is 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 it operates. The Services may only be used within the United States of America. Client agrees that Payment Facilitator is authorized to contact and share information about Client’s Sub-Merchant Account with Client’s bank or other financial institution and all Card Organizations. Upon approval of Client’s Sub-Merchant Account and by accepting the terms of this Agreement, Client authorizes Payment Facilitator to hold, receive, and disburse funds on Client’s behalf. Client may terminate this authorization by closing Client’s Sub-Merchant Account. Client agrees that in using the Services, Client will do the following:
- Only send SMS receipts to Client Customers who have requested a receipt be delivered in that manner;
- Comply with all applicable laws and regulations and all requirements of: (i) Card Organizations applicable to merchants; and (ii) all Payment Facilitator Processors.
- Maintain the security of account login information Client receives as part of Client’s use of the Services.
- Client agrees that if Client loses Client’s computer or mobile device, or Client has reason to believe that Client’s Sub-Merchant Account is no longer secure, Client will immediately notify Payment Facilitator;
- Not accept payments in connection with any illegal activity, or any activity that is inconsistent with Client’s type of business;
- Not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (i) adult content; (ii) airline or cruise line; (iii) collection agency; (iv) credit counseling or identity protection services; (v) debt elimination or reduction services; (vi) distressed property sales and marketing; (vii) gambling establishments or gambling; (viii) no card present tobacco or pharmaceutical sales; (ix) multilevel marketing programs or goods or services sold through such systems; (x) goods or services sold through rebate or upsell programs; (xi) timeshare resales and related marketing of goods, services or properties; (xii) sales to from operations outside the United States of America; (xiii) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; (xiv) acceptance of credit cards, debit cards or other forms of payment at scrip dispensing terminals; (xv) buyer club activities or buyer club memberships; (xvi) inbound or outbound telemarketing services; or (xvii) continuity or subscription services generated from direct marketing activities.
- Use the Services only for lawful merchant activities as approved by Payment Facilitator and not in a manner that results in or may result in complaints, disputes, chargebacks, fees, fines or penalties; and
- Not knowingly submit any sales transaction (i) that adds any surcharge to the transaction, except to the extent authorized by the Rules or applicable law, (ii) that adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately, (iii) that represents the refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible or arises from the dishonor of a Cardholder’s personal check or from the acceptance of a Card at a terminal that dispenses scrip, (iv) that is not a valid transaction between the Client and a bona fide Cardholder, (v) that Client knows or should have known to be fraudulent or not authorized by the Cardholder, or that Client knows or should have known to be authorized by a Cardholder colluding with Client for a fraudulent purpose, (vi) until after the products are shipped the services are performed, and/or Client has completed the transaction, unless Client has obtained Cardholder consent for a recurring transaction, (vii) where a valid authorization was required but not obtained, (viii) where multiple authorizations for amounts less than the total sale amount have been obtained, (ix) which results in a disbursement of cash or cash equivalent to a Cardholder or (x) that establishes a maximum dollar sale transaction amount, except to the extent authorized by the Rules.
- Not submit any refund transaction: (i) that does not correlate to an original sales transaction from the Cardholder, (ii) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Cardholder for postage paid by the Cardholder to return merchandise in accordance with a policy applied consistently by Client to all Client Customers, (iii) for returned products that were acquired in a cash purchase from Client, (iv) that would cause an overdraft, or (v) more than three (3) business days following either: (A) a regulatory requirement granting a Cardholder’s right to a refund; or (B) a non-disputed Cardholder request.
- Not use any Cardholder data or other transaction data received from Payment Facilitator or Payment Facilitator Processor for any purpose not authorized by this Agreement.
- Not disclose any Cardholder data or other transaction data to any entity except for necessary disclosures to affected Cardholders, and through Payment Facilitator Processor to affected Card Organization entities.
- Not provide Payment Facilitator any inaccurate, incomplete, or misleading information.
- Provide Payment Facilitator with timely notification of events that have caused or could cause material changes in Client’s ability to fulfill Client’s obligations under this Agreement, including but not limited to (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; or (iii) actions by governmental or non-governmental agencies.
- Not transfer or attempt to transfer Client’s financial liability by asking or requiring Cardholders to waive their dispute rights.
- Not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
- Not submit transactions for entities that do not have their principal places of business in the United States
- Not use the Services to process cash advances.
4. Unauthorized Use, Compliance with Law
Client may only use the Services in compliance with all laws, rules, and regulations applicable to the use of the Services. Payment Facilitator may choose not to authorize or settle any transaction submitted to Payment Facilitator if Payment Facilitator believes the transaction is in violation of this Agreement or may cause harm to Client, Client Customers, Payment Facilitator, or Payment Facilitator’s processors. Client expressly authorizes Payment Facilitator to share information about Client, Client’s Sub-Merchant Account or Client’s transactions with Client’s bank(s) and other financial institutions and with law enforcement if Payment Facilitator believes the Services have been used for an illegal, unauthorized or criminal purpose. Unauthorized Use, Compliance with Law
Client agrees to pay the applicable fees set forth when Client signed up for the Services (“Fees”). Payment Facilitator reserves the right to change Fees at any time upon thirty (30) days after sending notice (by any means, including but not limited to email, text, regular mail or otherwise) prior to the effective date of the change. Client’s continued use of the Services indicates Client’s consent to the change in Fees. If Client does not consent to the change in Fees, Client must close Client’s Sub-Merchant Account, otherwise we shall be permitted to change or add such Fees thirty days following sending of the notice. Client further agrees that if unusual or unexpected transaction activity occurs on Client’s Sub-Merchant Account, Payment Facilitator has the right to hold funds while Payment Facilitator conducts an investigation into the processing activity. Payment Facilitator also has the right to request and to receive from Client’s documentation to support the transaction activity, including, but not be limited to, invoices, signed sales receipts, shipping documentation, and any other relevant documentation pertaining to a transaction or transactions in question.
5. Deposit of Sub-Merchant Account Funds
Client will establish and maintain with an Automated Clearing House (“ACH”) receiving depository institution acceptable to Payment Facilitator’s Processors one or more commercial checking account(s) based in the United States to facilitate payment for Payment Transactions. Client will maintain sufficient funds in the account to accommodate all transactions, including, but not limited to, Fees, fines and chargebacks. Client irrevocably authorizes the debit of the account for chargebacks, Fees and any other penalties, fees or payments or monies due under this Agreement to Payment Facilitator or its Payment Facilitator Processors with respect to Client’s Sub-Merchant Account (collectively, “Indebtedness to Payment Facilitator”). Once Client’s bank account is validated, Payment Facilitator or Payment Facilitator’s Processor(s) will deposit to Client’s Sub-Merchant Account the amounts actually received by Payment Facilitator for completed transactions submitted through the Services no later than two days following the end of every business day. Payments to Client’s bank account will normally register within 2-3 business days. Each transaction will be considered complete when Payment Facilitator has received the funds and when such funds have been accepted by the designated bank or financial institution. Payment Facilitator shall have the right to deduct from Client’s Sub-Merchant Account: (i) following the end of each month during the term of this Agreement any Fees owing from Client to Payment Facilitator or any Payment Facilitator Processor; and (ii) immediately at any time, any Indebtedness to Payment Facilitator.
Should Payment Facilitator need to conduct an investigation or resolve any dispute related to Client’s Sub-Merchant Account (including but not limited to issues around possible Prohibited Transactions or other breaches by Client of this Agreement or applicable Payment Facilitator, Payment Facilitator Processor or Card Organization Rules), Payment Facilitator may defer payment or restrict access to Client’s funds for as long as Payment Facilitator deems necessary. Payment Facilitator also may defer payment or restrict access to Client’s funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
6. Sub-Merchant Account Activity
Client is responsible for monitoring Client’s transactions and ensuring that Payment Facilitator’s payments to Client are correct. Client agrees to contact Payment Facilitator immediately if Client discovers an error or an unauthorized transaction on Client’s Sub-Merchant Account. Client must notify Payment Facilitator of any errors in payments made to Client within thirty (30) days of the error or unauthorized transaction. Client’s failure to notify Payment Facilitator of any such errors within the applicable thirty (30) day period will constitute a waiver of any right or claim to amounts owed to Client.
Client is responsible for reconciling all transactions with Client’s Sub-Merchant Account and keeping permanent records of such transactions.
7. Reserve Account/Security Interest
For the purpose of providing a source of funds to pay damages which Payment Facilitator or its Payment Facilitator Processors may potentially suffer under this Agreement and to pay Indebtedness to Payment Facilitator or other amounts Client may owe Payment Facilitator under this Agreement or assessed by any Payment Facilitator Processor, a separate reserve account (the “Reserve Account”) may be established from time to time by Client, Payment Facilitator, or any Payment Facilitator Processor to secure Client’s current and/or future potential obligations as reasonably determined by Payment Facilitator or any Payment Facilitator Processor. The Reserve Account will be in an amount as reasonably determined by Payment Facilitator or its applicable Payment Facilitator Processor(s) to protect their present or future interests and may be raised, reduced or removed at any time by Payment Facilitator or any Payment Facilitator Processor, in Payment Facilitator’s sole discretion. If there are not sufficient funds in Client’s Reserve Account, Payment Facilitator has the right of recoupment and set-off and may fund the Reserve Account from any funding source associated with Client’s Sub-Merchant Account, including but not limited to any funds due to Client under this Agreement, or available in Client’s bank account. Client grants Payment Facilitator a security interest in and lien on any and all funds held in (a) any Reserve Account, (b) all funds at any time in the Sub-Merchant Account, regardless of the source of funds, and (c) any amounts due to Client under this Agreement. Client agrees to provide other security to Payment Facilitator upon request to secure Client’s obligations under this Agreement. This security interest may be exercised by Payment Facilitator or any Payment Facilitator Processor or any of Payment Facilitator or any Payment Facilitator Processor’s assigns, without notice or demand of any kind by making an immediate withdrawal, debit or freezing of Client’s assets. Payment Facilitator may also make reversals of deposits or transfers made to Client’s Sub-Merchant Account. Client agrees to execute any additional documentation required for Payment Facilitator to perfect Payment Facilitator’s security interest, including such form(s) of control agreement(s) as Payment Facilitator may from time to time require regarding dominion of the funds referenced in Sections 8(a), 8(b) and 8(c) hereof. Client further agrees to pay to Payment Facilitator upon demand any Indebtedness Owing to Payment Facilitator or other monies owing by Client to Payment Facilitator or any Payment Facilitator Processor pursuant to this Agreement or otherwise.
8. Honoring Cards
- Whenever possible, Client will identify the person presenting a Card and purporting to be a person authorized to use a Card and check the expiration date and signature on each Card. Client will not honor a Card if the Card has expired or if Client determines that the account number on the Card does not match the account number on the Card’s magnetic stripe or the account number is listed on a current Electronic Warning Bulletin file.
- Client is responsible for ensuring that the cardholder of each Card understands that Client is responsible for the transaction, including the goods or services that are the subject of the transaction. In addition, Client is solely responsible for all customer service issues relating to Client’s goods or services, including pricing, fulfillment, order cancellation, returns, refunds and adjustments, warranty, and support.
- Client will not add any amount to the posted price of goods or services Client offers as a condition of paying with a Card that is not consistent with the Card Organization Rules and laws.
- Client will properly disclose to the holder of each form of credit card, debit card or other card (each a “Card” and collectively, the “Cards”) that is or may be used in connection with any of the transactions subject to this Agreement (each a “Cardholder”), at the time of transaction, any limitation Client has on accepting returned merchandise. Client’s return policy must be in accordance with the Card Organization Rules. If Client’s refund policy prohibits returns or is unsatisfactory to the Cardholder, Client may still receive a Chargeback relating to such transactions.
- Client agrees to make a written receipt available to the Cardholder for any transaction. Client may provide the Cardholder the option to decline a written receipt. Client may also offer electronic receipts delivered by SMS or e-mail to the Cardholder.
9. Taxes
Client is responsible for collecting, reporting and remitting any taxes required to be collected, paid or withheld in connection with the Services (“Taxes”). Payment Facilitator is not responsible to determine whether or not Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction.
If in a given calendar year Client receives: (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Payment Facilitator or its Payment Facilitator processor(s) is authorized to report annually to the Internal Revenue Service (“IRS”), as required by law, Client’s name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments Client receives in a calendar year, and the total dollar amount of the payments Client receives for each month in a calendar year.
10. Returns
By using the Services, Client agrees to process returns of, and provide refunds and adjustments for, Client’s goods or services through Client’s Sub-Merchant Account in accordance with this Agreement, each Payment Facilitator Processor’s Rules and applicable Card Organization Rules.
11. Chargebacks
The amount of a transaction may be reversed or charged back to Client’s Sub-Merchant Account (each a “Chargeback”) for reasons, including, but not limited to, any one of the following: (a) an invalid Card account is submitted by Client; (b) neither the Cardholder nor a person authorized by the Cardholder received the goods or services requested; (c) the Cardholder disputes the quality of the goods or services received; (d) the Cardholder never received a credit for a returned item or a cancelled order; (e) the Cardholder was charged incorrectly; (f) the authorization code is invalid; (g) the Card was expired or not effective; (h) the transaction is disputed; (i) the transaction is reversed by the Card Organization, any Payment Facilitator Processor, or a financial institution for any reason, (j) the transaction was not authorized; or (k) the transaction is allegedly unlawful, suspicious, or believed by Payment Facilitator to be in violation of the terms of this Agreement.
For any transaction that results in a Chargeback, Payment Facilitator may withhold the Chargeback amount in the Reserve Account. Client may be subject to a chargeback on sales for a minimum period of 360 days from the date the sale was entered into the processing system. Payment Facilitator may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by each applicable Payment Facilitator Processor from Client’s Sub-Merchant Account, Client’s Reserve Account, if any, any proceeds due to Client, or Client’s bank account. If Client has pending Chargebacks or Payment Facilitator reasonably believes that a Chargeback is likely, Payment Facilitator may withhold or delay payments from Client’s Sub-Merchant Account for the later of: (i) 270 days following termination of this Agreement; (ii) 180 days from Client’s last Chargeback; or (iii) 30 days following Client’s delivery of written notification disputing the Chargeback in question and the basis therefor with appropriate documentation in accordance with Section 13 below. Client agrees to respond to all Chargebacks promptly. If Payment Facilitator is unable to recover funds related to a Chargeback for which Client is liable, Client will pay Payment Facilitator the full amount of the Chargeback immediately upon demand. Client agrees to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of Payment Facilitator related to Payment Facilitator’s efforts to collect any Sub-Merchant Account deficit balances unpaid by Client.
If Payment Facilitator determines that Client is incurring an excessive amount of Chargebacks, Client may be subject to a Card Organization’s monitoring program. Client is responsible for monitoring Client’s monthly chargeback percentage and developing chargeback reduction programs as required by the Card Organizations. Payment Facilitator may also establish controls or conditions governing Client’s Sub-Merchant Account, including but not limited to (a) an increase in processing fees, (b) creating a Reserve Account in an amount reasonably determined by Payment Facilitator to cover anticipated Chargebacks and related fees, (c) delaying payments, and (d) terminating or suspending the Services and this Agreement. Failure to establish such controls or conditions as established by Payment Facilitator within the specified period (or ten days following notification of such controls or conditions if no time period is specified) shall constitute a breach by Client of this Agreement.
12. Processing Errors
Client agrees to promptly notify Payment Facilitator of any errors within thirty (30) days after the date of the asserted error or missing transaction(s). If Client does not notify Payment Facilitator within the 30-day period, Payment Facilitator is not liable for, nor obligated to investigate, correct, such asserted error and Client agrees that all claims related to such error are waived. If Payment Facilitator discovers processing errors, it will attempt to rectify processing errors.
13. Privacy and Legal Notices; HIPAA, TCPA, FDCPA
Client agrees to keep information received from Cardholders confidential. Client will not disclose to any third party any Cardholder account information other personal information except in connection with the Services and in accordance with the Card Organization Rules or applicable law (including but not limited as required under the Health Insurance Portability and Accountability Act or “HIPAA”). Client must keep all Cardholder information in a secure manner to prevent disclosure to unauthorized parties. Client may not disclose or distribute any such information to a third party or use the information for marketing purposes unless Client receives the express consent of the user. Furthermore, Client agrees to be subject to Payment Facilitator’s privacy policy and any other legal notices located at www.swervepay.com.
Client agrees not to use the Services in violation of any local, state or Federal laws, rules or regulations, or orders, including, but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”), Fair Debt Collection Practices Act ("FDCPA") and HIPAA and its related Rules and Regulations, and agree to indemnify, defend and hold Payment Facilitator and its Affiliated Entities (defined below) harmless from and against all Losses (defined below) that are incurred, suffered or paid, directly or indirectly, by any of them in connection with, arising out of or resulting from any claim alleging improper or illegal use of any of the Services provided to Client and/or Client Customers by Payment Facilitator or any of its Affiliated Entities, including but not limited to any claims arising from following Client’s direction for communications to Client Customers as to frequency of sending messages by any medium, including but not limited to text, e-mail, facsimile or paper regarding any matter, including but not limited to past due sums, deposits for anticipated procedures, estimates of cost of procedures, appointment reminders, payment receipts or other communications. For purposes of Section 13, indemnification of Payment Facilitator and its Affiliated Entities includes, but is not limited to payment by Client of any judgment, settlement, claim, penalties and costs, interest, reasonable attorneys’ fees and cost of defense, if Payment Facilitator or an Affiliated Entity is named as a party to any action or suit related to delivery of communications to Client Customer or otherwise subject to this indemnification. In such an event, Payment Facilitator and its Affiliated Entities shall have the option at any time of either being defended by Client’s counsel or providing their own defense to the action (subject to regular monthly reimbursement from Client for costs and fees incurred, regardless of the outcome of such action). For purposes of this Section 13: (i) “Losses” means any and all losses, liabilities, damages, penalties, obligations, awards, fines, deficiencies, demands, interest, costs and expenses (including reasonable attorneys’ fees, consultants’ fees and other professional fees and disbursements); and (ii) “Affiliated Entity” shall mean any “affiliate” of Payment Facilitator (as such term is construed under Rule 405 promulgated under the Securities Act of 1933), as well as, without limitation, any independent contractor, business partner, solution extender, or service provider under contract with Payment Facilitator or assists Payment Facilitator in delivering any of the Services provided by Payment Facilitator pursuant to this Agreement.
14. Consent to Electronic Notices
From time to time, Payment Facilitator may be required to provide to Client certain notices, disclosures or information about Client’s Sub-Merchant Account or in connection with the Services. Client agrees that this information may be provided to Client by posting it on Payment Facilitator’s website or mobile app, or by sending Client an e-mail to the e-mail of record with Payment Facilitator when Client signed up for the Services. Notices provided to Client via e-mail will be deemed given and received on the transmission date of the e-mail. Notices posted to the website or mobile app will be deemed given and received within 24 hours of posting.
15. Compliance with Law: Payment Card Industry Data Security Standards Non-Disclosure & Storage of Cardholder and Transaction Information Requirements
While Payment Facilitator and/or its Affiliates use advanced security features to ensure the security and safety of Client’s personal information and that of Client Customers, Payment Facilitator cannot absolutely guarantee the security of any of such personal information from unauthorized access, loss or disclosure by third parties. Client confirms and certifies that: (a) Client is, and shall be, in full compliance during the term of this Agreement with all laws, statutes and federal and/or state regulations, as well as the Rules as may be applicable to Client, Client’s business and any Payment Transaction; (b) all acceptances of Cards as a form of payments via the Internet shall at a minimum, include the following information and processes on their Internet sites: (i) prominent display of Sub-Merchant name as “Merchant” and as the name that will appear on the cardholder statement, (ii) a complete description of good or services offered; (iii) delivery standards including method and time for delivery; (iv) terms and conditions of purchase, and export or legal descriptions; (v) return/refund policy described in reasonable details; (vi) opportunity to review and confirm order prior to order submission; (vii) secure method for payment data transmission; (viii) currency of transaction used to make payment (USD); (ix) disclosure of Sub-Merchant outlets to country of origin; (x) display of card association or payment network logos; (xi) clear disclosure of Sub-Merchant privacy policy; (xii) alternate Sub-Merchant contact info options; and (xiii) display of web hosting company contact information; (c) it (and any outside agent that it may utilize to submit Transactions to Payment Facilitator) complies and will comply with the Payment Card Data Security Standards (“PCI DSS”) and Sub-Merchant hereby agrees to pay any fines and penalties that may be assessed by Visa, MasterCard or Discover or any other Card Organization as a result of Sub-Merchant’s non-compliance with the requirements of PCI DSS, any data breaches, or by its failure to accurately validate its compliance. Sub-Merchant will review and monitor the requirements at http://www.visa.com/CISP, and http://www.pcisecuritystandards.org in order to determine the timeframes and mandates for compliance under PCI DSS. The foregoing is an on-going obligation during the term of this Agreement and as this Agreement may be renewed. Sub-Merchant acknowledges and understands that Sub-Merchant may be prohibited from participating in Visa, MasterCard or Discover or other Card Organization programs if it is determined that Sub-Merchant is non-compliant. The following lists certain (but not all) of the current PCI DSS requirements, all of which Sub-Merchant shall comply with, if applicable: (i) install and maintain a working network firewall to protect data accessible via the Internet; (ii) keep security patches up to date; (iii) encrypt stored data; (iv) encrypt data sent across networks; (v) use and regularly update anti-virus software; (vi) restrict access to data to business (“need to know”); (vii) assign a unique ID to each person with computer access to data; (viii) not use Payment Facilitator supplied defaults for system passwords and security parameters; (ix) track access data by unique ID; (x) maintain a policy that addresses information security for employees and contractors; and (xi) restrict physical access to Cardholder information. Sub-Merchant shall notify Payment Facilitator if it utilizes any third-party that provides payment related services, directly or indirectly, and/or stores, transmits, or processes Cardholder data. Sub-Merchant is responsible for ensuring compliance of any such third-parties with PCI DSS. In the event of the failure, including bankruptcy, insolvency, or other suspension of Sub-Merchant’s business operations, Sub-Merchant shall not sell, transfer, or disclose any materials that contain Cardholder account numbers, personal information, or other Cardholder transaction information to third-parties (collectively, “Cardholder Information”). Sub-Merchant on behalf of itself and each of its agents and Affiliates shall either return this Cardholder Information to Payment Facilitator, or provide Payment Facilitator with acceptable proof of destruction of Cardholder Information. If Sub-Merchant is undergoing a forensic investigation regarding PCI DSS compliance at the time Sub-Merchant executes this Agreement, then Sub-Merchant shall fully cooperate with the investigation until completed. Payment Facilitator warrants that it and each of its Affiliates complies with the applicable required PCI DSS regulations and that Payment Facilitator and each of its Affiliates is a PCI DSS validated service provider.
16. Termination of Services
Client may cancel the Services or terminate this Agreement at any time, with, or without cause. Cancellation of the Services will become immediate upon Client’s notice to Payment Facilitator. Cancellation of the Services or termination of this Agreement will not alter Client’s obligation to pay all amounts owed to Payment Facilitator, including any Fees, and Client will continue to be bound by this Agreement, which obligations shall survive any termination of this Agreement. Upon termination of this Agreement, the license granted under this Agreement shall cease and Payment Facilitator shall not be liable to Client or any third party for such termination or access to the Services.
Upon termination of this Agreement, any pending transactions will be cancelled unless processed by Payment Facilitator (or its Payment Facilitator Processors) in Payment Facilitator’s sole discretion. Subject to Section 18 below, any funds that Payment Facilitator is holding in custody for Client at the time of termination, less any applicable Fees chargebacks, penalties or payments due under this Agreement, will be paid out to Client according to Client’s payment schedule (consistent with past practice and subject to Payment Facilitator’s rights to withhold payment for monies owed to Payment Facilitator or reserves established by Payment Facilitator). If an investigation is pending at the time Client closes Client’s Sub-Merchant Account, Payment Facilitator may hold Client’s funds until the investigation is completed. Payment Facilitator may hold all funds for up to 180 days from the date of the last transaction or 180 days from the date of the last chargeback, whichever is the later.
Payment Facilitator may terminate this Agreement and close Client’s Sub-Merchant Account for any reason or no reason at any time upon notice to Client, and without liability to Client for closing Client’s Sub-Merchant Account. Payment Facilitator may also suspend or terminate the Services and access to Client’s Sub-Merchant Account if Client: (a) have violated the terms of this Agreement, the Card Organization Rules, any other agreement Client has with Payment Facilitator, (b) pose an unacceptable credit or fraud risk to Payment Facilitator or any Payment Facilitator Processor, as determined by Payment Facilitator in its sole discretion, (c) fall outside the credit policy approved by a Payment Facilitator Processor, of if requested by a Card Organization or governmental entity, (d) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct, or (e) breach any of Client’s obligations under this Agreement. Payment Facilitator also reserves the right to add Client’s Sub-Merchant Account to the Terminated Merchant File, if Client’s Sub-Merchant Account meets the criteria defined by MasterCard.
17. Effect of Termination
Any termination of this Agreement does not relieve Client of any obligations to pay any Fees, penalties or costs accrued prior to the termination and any other amounts owed by Client to Payment Facilitator as provided in this Agreement. Client will continue to be responsible for any and all Chargebacks, credits and adjustments and all other amounts then due, or which later become due. In connection with termination, Payment Facilitator or its applicable Payment Facilitator Processor(s) may require the establishment and maintenance of a Reserve Account by Client in accordance with Section 7.
Subject to the terms and conditions of this Agreement, Payment Facilitator grants Client a personal, limited, non-exclusive, non-transferable license, during such time that Client satisfies the conditions set forth in this Agreement, to electronically access and use the Services solely for the purpose described herein. Except as expressly allowed herein or by applicable law, Client is not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following: (i) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way any components of the Services; (ii) permit any third party to benefit from the use or functionality of the Services via a rental, lease, timesharing, service bureau, or other arrangement; (iii) transfer any of the rights granted to Client under this Agreement; (iv) work around any technical limitations in the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer the any component of Services except as otherwise permitted by applicable law; (v) perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or the use of the Services by Payment Facilitator’s other licensees or customers; or (vi) export the Services, directly or indirectly.
18. Reservation of Rights and Ownership
Payment Facilitator reserves all rights not expressly granted to Client in this Agreement. Components of the Services are protected by copyright, trade secret and other intellectual property laws. Payment Facilitator and its licensors own the title, copyright, and other worldwide intellectual property rights in the Services and all copies of the Services. This Agreement does not grant Client any rights to trademarks or service marks of Payment Facilitator. This Agreement does not limit any rights that Payment Facilitator may have under trade secret, copyright, patent or other laws.
19. Privacy & Use of Client’s Information
The Services may utilize SMS messages delivered through wireless service providers, such as AT&T, Sprint, Verizon, etc. Client acknowledges that any SMS message goes through Client and the message recipient’s wireless service provider’s systems. The privacy statement of each associated wireless service provider applies as the message passes through those systems. As a requirement to permit usage of SMS systems some wireless service providers may require that Payment Facilitator disclose to them information about users of the Services and the nature of business to be conducted. In this situation the information will be used to ensure legitimate use of the SMS systems and not for marketing purposes. Client acknowledges and agrees that Payment Facilitator may provide information about Client to wireless service providers as described above. Client also acknowledges that in accessing the Services Client may upload or enter certain data from Client’s account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. Client may be made aware of or offered services, features, products, applications, online communities, or promotions provided by Payment Facilitator or Payment Facilitator’s Affiliates. Installing this application grants Payment Facilitator the right to send the identifiers for Client’s mobile device to third parties for the use of advertising purposes. Client is responsible for securely managing access to Client’s data and to the Services. Client agrees to be bound by the applicable Payment Facilitator privacy policy, as it may be amended from time to time in accordance with its terms.
20. Disclaimer of Warranties
THE SERVICES AND ANY CONTENT ACCESSIBLE THROUGH THE SERVICES ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYMENT FACILITATOR, ITS AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, PAYMENT FACILITATOR PROCESSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DEALERS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) DISCLAIM ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, CONTENT, AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NON- INFRINGEMENT. PAYMENT FACILITATOR DOES NOT WARRANT THAT THE SOFTWARE, THE SERVICES, THE SWIPE DEVICE, THIRD PARTY SERVICES OR ANY ONLINE SERVICES ARE SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, OR ERRORS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. FURTHER, PAYMENT FACILITATOR DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT OR DATA THROUGH THE SERVICES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT. THIS WARRANTY GIVES CLIENT SPECIFIC LEGAL RIGHTS, AND CLIENT MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
21. Limitation of Liability and Damages
CLIENT AGREE THAT IN NO EVENT WILL PAYMENT FACILITATOR, ANY PAYMENT FACILITATOR PROCESSOR OR ANY AFFILIATE OF PAYMENT FACILITATOR BE LIABLE FOR ANY LOSS, COST, LIABILITY OR DAMAGE INCURRED AS A RESULT OF YOUR USE OF THE SERVICES, THE TERMINATION OF SERVICES OR PARTICIPATION IN THIRD PARTY SERVICES. THE ENTIRE CUMULATIVE LIABILITY OF PAYMENT FACILITATOR, PAYMENT FACILITATOR’S AFFILIATES, ITS SUPPLIERS AND PAYMENT FACILITATOR PROCESSORS FOR ANY REASON ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OF THE SERVICES SHALL BE LIMITED AS PROVIDED HEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYMENT FACILITATOR, ITS AFFILIATES, ITS PAYMENT FACILITATOR PROCESSORS AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, THE LOSS, CORRUPTION OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS, USE OF THE SOFTWARE WITH HARDWARE OR OTHER SOFTWARE THAT DOES NOT MEET PAYMENT FACILITATOR’S SYSTEMS REQUIREMENTS OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY OF PAYMENT FACILITATOR, ITS AFFILIATES, ITS SUPPLIERS, ITS PAYMENT FACILITATOR PROCESSORS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CLIENT. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PAYMENT FACILITATOR AND CLIENT. PAYMENT FACILITATOR WOULD NOT HAVE PROVIDED THE SERVICES WITHOUT SUCH LIMITATIONS.
22. Consent
Client’s consent to do business electronically and receive electronic communications from Payment Facilitator, and Payment Facilitator’s agreement to do so covers all transactions Client conducts through the Services for as long as Client remains a licensee of the Services. If Client later decides that Client does not want to receive future communications electronically, Client may contact Payment Facilitator with withdrawal in writing of Client’s consent and discontinue the use of the Services.
23. Indemnification
Client agrees to indemnify, defend and hold Payment Facilitator, its Affiliates, its Payment Facilitator Processors, contractors, employees, agents and its third party suppliers, licensors, attorneys and partners (collectively, the “Payment Facilitator Indemnitees”) harmless from any and all claims, losses, damages, and liabilities, costs and expenses, including without limitation legal fees and expenses, arising out of or related to Client’s use or misuse of the Services, any violation by Client of this Agreement, or any breach of the representations, warranties, and covenants made by Client in this Agreement. Payment Facilitator reserves the right, at Client’s expense, to assume the exclusive defense and control of any matter for which Client is required to indemnify any of Payment Facilitator Indemnitees, including rights to settle, and Client agrees to cooperate with the defense and settlement of these claims. Payment Facilitator will use reasonable efforts to notify Client of any claim, action, or proceeding brought by a third party that is subject to the foregoing indemnification upon becoming aware of it.
24. Amendment
Please review the Agreement periodically on Payment Facilitator’s website provided to Client for additional terms and changes. Payment Facilitator has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to, Fees, terms, Internet-based services, pricing, technical support options, and other product-related policies, at any time upon notice by any means Payment Facilitator determines in its discretion to be reasonable. Client’s continued use of the Services after Payment Facilitator’s publication of any such changes shall constitute Client’s acceptance of this Agreement as modified.
25. Third Party Services
In connection with Client’s use of the Services, Client may be made aware of services, products, offers and promotions provided by third parties, and not by Payment Facilitator (“Third Party Services”). If Client decides to use Third Party Services, Client is responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing any Third Party Services. Client authorizes Payment Facilitator to use and disclose Client’s contact information, including name and address, for the purpose of making the Third Party Services Client chooses available to Client. Client agrees that the third party, and not Payment Facilitator, is responsible for the performance of the Third Party Services.
26. Export Restrictions
Client acknowledges that the Services are subject to the U.S. export controls regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII) and that Client will comply with all applicable laws and regulations. Client will not export or re-export the Services, or portion thereof, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end user, or to any end user who Client knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons.
27. Representations and Warranties
Client represents and warrants to Payment Facilitator that: (a) if an individual, Client is at least eighteen (18) years of age; (b) Client is eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by Client when Client registered is Client’s name or business name under which Client sells goods and services; (d) any sales transaction submitted by Client will represent a bona fide sale by Client; (e) any sales transactions submitted by Client will accurately describe the goods and/or services sold and delivered to a purchaser; (f) Client will fulfill all of Client’s obligations to each of Client Customers for which Client submits a transaction and will be responsible for and resolve any customer dispute or complaint directly with the purchaser and will be financially liable to Payment Facilitator for transactions entered into with purchasers; (g) Client and all transactions initiated by Client will comply with all federal, state, and local laws, rules, and regulations applicable to Client and/or Client’s business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no sales transaction submitted by Client through the Services will represent a sale to any principal, partner, proprietor, or owner of Client’s entity or any of Client’s other Affiliates; (i) Client will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (j) Client’s use of the Services will be in compliance with this Agreement; (k) Client agrees to follow the applicable Card brand operating Rules and regulations; and (l) Client is not engaged in any of the businesses or in any of the activities listed on Exhibit A, attached hereto and incorporated herein by reference.
28. Miscellaneous
Except as expressly set forth in this Agreement, this Agreement is a complete statement of the agreement between Client and Payment Facilitator and sets forth the entire liability of Payment Facilitator, its Payment Facilitator Processors, its Affiliates and its suppliers and Client’s exclusive remedy with respect to the Services and Third Party Services and their use. The suppliers, agents, employees, distributors, and dealers of Payment Facilitator are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Payment Facilitator. Any waiver of the terms herein by Payment Facilitator must be in a writing signed by an authorized officer of Payment Facilitator and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement may not be assigned by Client without the prior written approval of Payment Facilitator, but may be assigned without Client’s consent by Payment Facilitator without restriction. Any assignment in violation of this Section will be void. This Agreement will be governed by Illinois law, without regard to its conflicts of law principles, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in Cook County, Illinois or federal court for the Northern District of Illinois for the resolution of any dispute with respect to the this Agreement or any of the Services called for herein. Client hereby waives Client’s right to trial by jury with respect to any judicial proceeding relative to this Agreement or any of the Services called for herein. For purposes of this Agreement, the term “Affiliate” shall mean a person or entity controlled by or under common control with another person or entity, as the term “affiliate” is construed under Rule 405 promulgated under the Securities Act of 1933 as amended. All rights and obligations of the parties hereto accruing under this Agreement during the term of this Agreement shall survive any termination of this Agreement. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. This Agreement may be executed in several counterparts, whether by original, photocopy, facsimile, email pdf or electronic signature, both of which when taken together shall constitute one valid binding Agreement. By clicking via the internet or other electronic media that Client agrees to the terms of this Agreement, this shall constitute the counterpart electronic signature by both Client and Payment Facilitator to be bound by the terms of this Agreement. Any notice required hereunder shall be deemed given if delivered in writing in person or sent by email to the email address of the other party set forth below or if sent by Federal Express or other bonded courier one business day after sent via next business day or same business day delivery to the address of the party set forth below to three business days after deposit in the U.S. Mail by either registered or certified mail, addressed to the party entitled to notice at the address set forth below, or if a party delivers notice of a change in address, then the delivery shall be made to the most recent address provided by notice of the party changing his, her or its address as set forth in such notice. If no address is designated by Client below, then the address shall be Client’s main corporate address as set forth on Client’s main corporate website.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date of full execution of this Agreement.
| Customer: |
| {{{Business_Legal_Name}}} |
By: {{{Customer_Signor}}} | |
Its: {{{Customer_Signor_Title}}} | |
Date of Execution: {{{Todays_Date}}} | |
Address: {{{Business_Street_Address}}} {{Business_City}}, {{Business_State}} {{Business_ZipCode}} | |
Email: {{{Customer_Signor_Email}}} |
15807945
EXHIBIT A
PROHIBITED BUSINESSES AND ACTIVITIES
The following businesses and activities are strictly prohibited, unless otherwise agreed to by Payment Facilitator and Payment Facilitator Processors:
- Age Restricted Products or Services
- Any business where the anticipated % of International Card Sales is expected to be greater than 20% of total sales
- Bail Bond Services or Bankruptcy Lawyers
- Career Placement or Advice Center Businesses
- Crowd Sourced Fundraising
- Dating Services
- Delayed Delivery Businesses where the good or service provided is not shipped, delivered or fulfilled when the card transaction is processed but is to occur at a future date
- Online Personal Computer Technical Support
- Personal Enhancement Products and/or Nutraceuticals
- Psychic Services
- Shipping or Forwarding Brokers
- Travel Agencies or Tour Operators
- Any product, service or activity that is deceptive, unfair, predatory or prohibited by one or more Card Brands
- Any merchant selling goods or services that represent a violation of any law, statute or regulation
- Any merchant operating outside the United States
- Any merchant submitting sales for payment that resulted from another commercial entity providing goods or services to the cardholder, including those businesses that may otherwise qualify themselves as a Payment Service Company or Payment Facilitator
- Any 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 merchants accepting a card as payment for a dishonored check or for an item deemed uncollectible by another merchant
- Loan payments conducted on a Visa branded credit card
- Adult entertainment and/or adult content websites including Electronic Commerce adult content (videotext) merchants that would include MCC’s 5967,7273 and 7841
- Buyer Clubs/Membership Clubs
- 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
- Gambling Activities and Establishments including MCC 7995, including lotteries, internet gaming, daily fantasy sports, contests, sweepstakes, “special incentives” or offering of prizes as an inducement to purchase goods or services
- Infomercial merchants
- Internet Pharmacies
- Multi-Level Marketing Businesses
- Outbound Telemarketers and Telecom merchants including MCC’s 4814,4816, and 5966
- Payment Facilitators
- Rebate-Based Businesses
- Up-Selling merchants
- Any merchant that accepts a card at a scrip-dispensing terminal
- Airlines including Charter Airlines
- Bestiality
- Bidding Fee Auctions including Penny Auctions
- Brand or Reputational damaging, potential or otherwise, activities including Child Pornography, Escort Services, Mail Order Brides, Occult
- Collection Agencies
- Commodity Trading or Security Trading
- Credit Counseling or Credit Repair Services
- Credit Protection or Identity Theft Protection Services
- Cruise Lines
- Currency Exchanges or Dealers
- Debt Elimination, Debt Reduction or Debt Consulting Services
- Digital Wallet or Prepaid Companies
- Discount Buying Memberships/Clubs
- Discount Medical or Dental plans including Discount Insurance
- Discount Coupon merchants or Online Sites
- Distressed Property Sales and/or Marketing
- Drug Paraphernalia
- e-Cigarettes
- Firearms and weapons including Ammunition
- 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
- Marijuana dispensaries and related products or services
- Money Transfer, Wire Transfers, Money Orders, Transmitters, and Check Cashing including merchants required to be registered as Money Service Business
- ”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 periodically and/or a significantly larger amount
- Pawn Shop
- Prepaid Phone Cards
- Prepaid Phone Services
- Pseudo Pharmaceuticals
- 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
- Transacting Virtual Currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world
21916745.3
Effective April 20, 2020 to April 21, 2020
DownloadTable of Contents
SwervePay Sub-Merchant Processing Agreement
This SwervePay Sub-Merchant Processing Agreement (“Agreement”) is effective as of the date signed below (“Effective Date”) between the customer designated below (“Client”) and SwervePay, LLC (“Payment Facilitator”) governing Client’s use of Payment Facilitator’s payment processing services to accept credit cards, debit cards, ACH transactions and/or checks (together, the “Services” and individually, each a “Service”).
CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY USING THE SERVICES CLIENT ACCEPT THESE TERMS AND CONDITIONS. IF CLIENT DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY DISCONTINUE USE OF THE SERVICES.
- Services
The Services allow Client to accept payment card transactions, ACH transactions and other electronic payment transactions (collectively, “Payment Transactions”) into Client’s bank account(s) or a Payment Facilitator account (as determined by Payment Facilitator in its sole discretion) on a compatible computer and/or mobile device. The Services are licensed to Client, and Payment Facilitator owns all copyright, trade secret, patent, and other proprietary rights in the Services. Payment Facilitator is not a bank; Payment Facilitator is a registered payment facilitator that processes or directs the processing of payments Client receives from Client customers (each “Client Customer” and collectively, “Client Customers”). To do this, Payment Facilitator enters into agreements with other processors and banks. Client will be required to provide certain personal and/or business information to open an account with Payment Facilitator, which must be approved by Payment Facilitator prior to using the Services (the “Sub-Merchant Account”). Client must provide accurate and complete information to Payment Facilitator when opening the Sub-Merchant Account. Payment Facilitator may forward some or all of this information to its processor and to any other person or entity that has involvement in connection with the processing of any of Client’s Payment Transactions, including Client’s bank or other financial institutions and Card Organizations. If Client’s request to open a Sub-Merchant Account is approved, Payment Facilitator may request additional information from Client at any time. Payment Facilitator may also periodically obtain reports to determine whether Client continues to meet the requirements for a Sub-Merchant Account. In addition, Client may be required to enter into additional agreements as required by Payment Facilitator’s processors (each a “Payment Facilitator Processor” and collectively, “Payment Facilitator’s Processors”) or the card organizations, such as MasterCard, Visa, Discover Network or American Express (the “Card Organizations”). The Card Organizations and Payment Facilitator Processors require that Client and Payment Facilitator comply with all of their respective applicable bylaws, rules and regulations, which may be amended at any time (collectively, the “Rules”). Payment Facilitator may amend this Agreement to comply with such amendments. Portions of these rules and regulations applicable to Visa and MasterCard are available on the Visa and MasterCard websites.
2. Card Readers / Swipe Device
Once Client’s Sub-Merchant Account is approved, and if purchased (or alternate arrangements) or required for Client’s account, the swipe device(s) will be sent to Client at the address provided. Payment Facilitator does not warrant that the swipe device or the Services will be compatible with Client’s computer, mobile device or third-party carrier. Client’s use of any swipe device and the Services may also be subject to the terms of Client’s mobile device manufacturer and Client’s carrier. Payment Facilitator shall not be responsible for any damages caused by defects associated with any swipe devices used by Client with respect to Client’s business or any hacking of any of such swipe devices.
3. Sub-Merchant Account By establishing a Sub-Merchant Account, Client confirms that Client is 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 it operates. The Services may only be used within the United States of America. Client agrees that Payment Facilitator is authorized to contact and share information about Client’s Sub-Merchant Account with Client’s bank or other financial institution and all Card Organizations. Upon approval of Client’s Sub-Merchant Account and by accepting the terms of this Agreement, Client authorizes Payment Facilitator to hold, receive, and disburse funds on Client’s behalf. Client may terminate this authorization by closing Client’s Sub-Merchant Account. Client agrees that in using the Services, Client will do the following:
- Only send SMS receipts to Client Customers who have requested a receipt be delivered in that manner;
- Comply with all applicable laws and regulations and all requirements of: (i) Card Organizations applicable to merchants; and (ii) all Payment Facilitator Processors.
- Maintain the security of account login information Client receives as part of Client’s use of the Services.
- Client agrees that if Client loses Client’s computer or mobile device, or Client has reason to believe that Client’s Sub-Merchant Account is no longer secure, Client will immediately notify Payment Facilitator;
- Not accept payments in connection with any illegal activity, or any activity that is inconsistent with Client’s type of business;
- Not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (i) adult content; (ii) airline or cruise line; (iii) collection agency; (iv) credit counseling or identity protection services; (v) debt elimination or reduction services; (vi) distressed property sales and marketing; (vii) gambling establishments or gambling; (viii) no card present tobacco or pharmaceutical sales; (ix) multilevel marketing programs or goods or services sold through such systems; (x) goods or services sold through rebate or upsell programs; (xi) timeshare resales and related marketing of goods, services or properties; (xii) sales to from operations outside the United States of America; (xiii) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; (xiv) acceptance of credit cards, debit cards or other forms of payment at scrip dispensing terminals; (xv) buyer club activities or buyer club memberships; (xvi) inbound or outbound telemarketing services; or (xvii) continuity or subscription services generated from direct marketing activities.
- Use the Services only for lawful merchant activities as approved by Payment Facilitator and not in a manner that results in or may result in complaints, disputes, chargebacks, fees, fines or penalties; and
- Not knowingly submit any sales transaction (i) that adds any surcharge to the transaction, except to the extent authorized by the Rules or applicable law, (ii) that adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately, (iii) that represents the refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible or arises from the dishonor of a Cardholder’s personal check or from the acceptance of a Card at a terminal that dispenses scrip, (iv) that is not a valid transaction between the Client and a bona fide Cardholder, (v) that Client knows or should have known to be fraudulent or not authorized by the Cardholder, or that Client knows or should have known to be authorized by a Cardholder colluding with Client for a fraudulent purpose, (vi) until after the products are shipped the services are performed, and/or Client has completed the transaction, unless Client has obtained Cardholder consent for a recurring transaction, (vii) where a valid authorization was required but not obtained, (viii) where multiple authorizations for amounts less than the total sale amount have been obtained, (ix) which results in a disbursement of cash or cash equivalent to a Cardholder or (x) that establishes a maximum dollar sale transaction amount, except to the extent authorized by the Rules.
- Not submit any refund transaction: (i) that does not correlate to an original sales transaction from the Cardholder, (ii) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Cardholder for postage paid by the Cardholder to return merchandise in accordance with a policy applied consistently by Client to all Client Customers, (iii) for returned products that were acquired in a cash purchase from Client, (iv) that would cause an overdraft, or (v) more than three (3) business days following either: (A) a regulatory requirement granting a Cardholder’s right to a refund; or (B) a non-disputed Cardholder request.
- Not use any Cardholder data or other transaction data received from Payment Facilitator or Payment Facilitator Processor for any purpose not authorized by this Agreement.
- Not disclose any Cardholder data or other transaction data to any entity except for necessary disclosures to affected Cardholders, and through Payment Facilitator Processor to affected Card Organization entities.
- Not provide Payment Facilitator any inaccurate, incomplete, or misleading information.
- Provide Payment Facilitator with timely notification of events that have caused or could cause material changes in Client’s ability to fulfill Client’s obligations under this Agreement, including but not limited to (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; or (iii) actions by governmental or non-governmental agencies.
- Not transfer or attempt to transfer Client’s financial liability by asking or requiring Cardholders to waive their dispute rights.
- Not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
- Not submit transactions for entities that do not have their principal places of business in the United States
- Not use the Services to process cash advances.
4. Unauthorized Use, Compliance with Law
Client may only use the Services in compliance with all laws, rules, and regulations applicable to the use of the Services. Payment Facilitator may choose not to authorize or settle any transaction submitted to Payment Facilitator if Payment Facilitator believes the transaction is in violation of this Agreement or may cause harm to Client, Client Customers, Payment Facilitator, or Payment Facilitator’s processors. Client expressly authorizes Payment Facilitator to share information about Client, Client’s Sub-Merchant Account or Client’s transactions with Client’s bank(s) and other financial institutions and with law enforcement if Payment Facilitator believes the Services have been used for an illegal, unauthorized or criminal purpose. Unauthorized Use, Compliance with Law
Client agrees to pay the applicable fees set forth when Client signed up for the Services (“Fees”). Payment Facilitator reserves the right to change Fees at any time upon thirty (30) days after sending notice (by any means, including but not limited to email, text, regular mail or otherwise) prior to the effective date of the change. Client’s continued use of the Services indicates Client’s consent to the change in Fees. If Client does not consent to the change in Fees, Client must close Client’s Sub-Merchant Account, otherwise we shall be permitted to change or add such Fees thirty days following sending of the notice. Client further agrees that if unusual or unexpected transaction activity occurs on Client’s Sub-Merchant Account, Payment Facilitator has the right to hold funds while Payment Facilitator conducts an investigation into the processing activity. Payment Facilitator also has the right to request and to receive from Client’s documentation to support the transaction activity, including, but not be limited to, invoices, signed sales receipts, shipping documentation, and any other relevant documentation pertaining to a transaction or transactions in question.
5. Deposit of Sub-Merchant Account Funds
Client will establish and maintain with an Automated Clearing House (“ACH”) receiving depository institution acceptable to Payment Facilitator’s Processors one or more commercial checking account(s) based in the United States to facilitate payment for Payment Transactions. Client will maintain sufficient funds in the account to accommodate all transactions, including, but not limited to, Fees, fines and chargebacks. Client irrevocably authorizes the debit of the account for chargebacks, Fees and any other penalties, fees or payments or monies due under this Agreement to Payment Facilitator or its Payment Facilitator Processors with respect to Client’s Sub-Merchant Account (collectively, “Indebtedness to Payment Facilitator”). Once Client’s bank account is validated, Payment Facilitator or Payment Facilitator’s Processor(s) will deposit to Client’s Sub-Merchant Account the amounts actually received by Payment Facilitator for completed transactions submitted through the Services no later than two days following the end of every business day. Payments to Client’s bank account will normally register within 2-3 business days. Each transaction will be considered complete when Payment Facilitator has received the funds and when such funds have been accepted by the designated bank or financial institution. Payment Facilitator shall have the right to deduct from Client’s Sub-Merchant Account: (i) following the end of each month during the term of this Agreement any Fees owing from Client to Payment Facilitator or any Payment Facilitator Processor; and (ii) immediately at any time, any Indebtedness to Payment Facilitator.
Should Payment Facilitator need to conduct an investigation or resolve any dispute related to Client’s Sub-Merchant Account (including but not limited to issues around possible Prohibited Transactions or other breaches by Client of this Agreement or applicable Payment Facilitator, Payment Facilitator Processor or Card Organization Rules), Payment Facilitator may defer payment or restrict access to Client’s funds for as long as Payment Facilitator deems necessary. Payment Facilitator also may defer payment or restrict access to Client’s funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
6. Sub-Merchant Account Activity
Client is responsible for monitoring Client’s transactions and ensuring that Payment Facilitator’s payments to Client are correct. Client agrees to contact Payment Facilitator immediately if Client discovers an error or an unauthorized transaction on Client’s Sub-Merchant Account. Client must notify Payment Facilitator of any errors in payments made to Client within thirty (30) days of the error or unauthorized transaction. Client’s failure to notify Payment Facilitator of any such errors within the applicable thirty (30) day period will constitute a waiver of any right or claim to amounts owed to Client.
Client is responsible for reconciling all transactions with Client’s Sub-Merchant Account and keeping permanent records of such transactions.
7. Reserve Account/Security Interest
For the purpose of providing a source of funds to pay damages which Payment Facilitator or its Payment Facilitator Processors may potentially suffer under this Agreement and to pay Indebtedness to Payment Facilitator or other amounts Client may owe Payment Facilitator under this Agreement or assessed by any Payment Facilitator Processor, a separate reserve account (the “Reserve Account”) may be established from time to time by Client, Payment Facilitator, or any Payment Facilitator Processor to secure Client’s current and/or future potential obligations as reasonably determined by Payment Facilitator or any Payment Facilitator Processor. The Reserve Account will be in an amount as reasonably determined by Payment Facilitator or its applicable Payment Facilitator Processor(s) to protect their present or future interests and may be raised, reduced or removed at any time by Payment Facilitator or any Payment Facilitator Processor, in Payment Facilitator’s sole discretion. If there are not sufficient funds in Client’s Reserve Account, Payment Facilitator has the right of recoupment and set-off and may fund the Reserve Account from any funding source associated with Client’s Sub-Merchant Account, including but not limited to any funds due to Client under this Agreement, or available in Client’s bank account. Client grants Payment Facilitator a security interest in and lien on any and all funds held in (a) any Reserve Account, (b) all funds at any time in the Sub-Merchant Account, regardless of the source of funds, and (c) any amounts due to Client under this Agreement. Client agrees to provide other security to Payment Facilitator upon request to secure Client’s obligations under this Agreement. This security interest may be exercised by Payment Facilitator or any Payment Facilitator Processor or any of Payment Facilitator or any Payment Facilitator Processor’s assigns, without notice or demand of any kind by making an immediate withdrawal, debit or freezing of Client’s assets. Payment Facilitator may also make reversals of deposits or transfers made to Client’s Sub-Merchant Account. Client agrees to execute any additional documentation required for Payment Facilitator to perfect Payment Facilitator’s security interest, including such form(s) of control agreement(s) as Payment Facilitator may from time to time require regarding dominion of the funds referenced in Sections 8(a), 8(b) and 8(c) hereof. Client further agrees to pay to Payment Facilitator upon demand any Indebtedness Owing to Payment Facilitator or other monies owing by Client to Payment Facilitator or any Payment Facilitator Processor pursuant to this Agreement or otherwise.
8. Honoring Cards
- Whenever possible, Client will identify the person presenting a Card and purporting to be a person authorized to use a Card and check the expiration date and signature on each Card. Client will not honor a Card if the Card has expired or if Client determines that the account number on the Card does not match the account number on the Card’s magnetic stripe or the account number is listed on a current Electronic Warning Bulletin file.
- Client is responsible for ensuring that the cardholder of each Card understands that Client is responsible for the transaction, including the goods or services that are the subject of the transaction. In addition, Client is solely responsible for all customer service issues relating to Client’s goods or services, including pricing, fulfillment, order cancellation, returns, refunds and adjustments, warranty, and support.
- Client will not add any amount to the posted price of goods or services Client offers as a condition of paying with a Card that is not consistent with the Card Organization Rules and laws.
- Client will properly disclose to the holder of each form of credit card, debit card or other card (each a “Card” and collectively, the “Cards”) that is or may be used in connection with any of the transactions subject to this Agreement (each a “Cardholder”), at the time of transaction, any limitation Client has on accepting returned merchandise. Client’s return policy must be in accordance with the Card Organization Rules. If Client’s refund policy prohibits returns or is unsatisfactory to the Cardholder, Client may still receive a Chargeback relating to such transactions.
- Client agrees to make a written receipt available to the Cardholder for any transaction. Client may provide the Cardholder the option to decline a written receipt. Client may also offer electronic receipts delivered by SMS or e-mail to the Cardholder.
9. Taxes
Client is responsible for collecting, reporting and remitting any taxes required to be collected, paid or withheld in connection with the Services (“Taxes”). Payment Facilitator is not responsible to determine whether or not Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction.
If in a given calendar year Client receives: (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Payment Facilitator or its Payment Facilitator processor(s) is authorized to report annually to the Internal Revenue Service (“IRS”), as required by law, Client’s name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments Client receives in a calendar year, and the total dollar amount of the payments Client receives for each month in a calendar year.
10. Returns
By using the Services, Client agrees to process returns of, and provide refunds and adjustments for, Client’s goods or services through Client’s Sub-Merchant Account in accordance with this Agreement, each Payment Facilitator Processor’s Rules and applicable Card Organization Rules.
11. Chargebacks
The amount of a transaction may be reversed or charged back to Client’s Sub-Merchant Account (each a “Chargeback”) for reasons, including, but not limited to, any one of the following: (a) an invalid Card account is submitted by Client; (b) neither the Cardholder nor a person authorized by the Cardholder received the goods or services requested; (c) the Cardholder disputes the quality of the goods or services received; (d) the Cardholder never received a credit for a returned item or a cancelled order; (e) the Cardholder was charged incorrectly; (f) the authorization code is invalid; (g) the Card was expired or not effective; (h) the transaction is disputed; (i) the transaction is reversed by the Card Organization, any Payment Facilitator Processor, or a financial institution for any reason, (j) the transaction was not authorized; or (k) the transaction is allegedly unlawful, suspicious, or believed by Payment Facilitator to be in violation of the terms of this Agreement.
For any transaction that results in a Chargeback, Payment Facilitator may withhold the Chargeback amount in the Reserve Account. Client may be subject to a chargeback on sales for a minimum period of 360 days from the date the sale was entered into the processing system. Payment Facilitator may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by each applicable Payment Facilitator Processor from Client’s Sub-Merchant Account, Client’s Reserve Account, if any, any proceeds due to Client, or Client’s bank account. If Client has pending Chargebacks or Payment Facilitator reasonably believes that a Chargeback is likely, Payment Facilitator may withhold or delay payments from Client’s Sub-Merchant Account for the later of: (i) 270 days following termination of this Agreement; (ii) 180 days from Client’s last Chargeback; or (iii) 30 days following Client’s delivery of written notification disputing the Chargeback in question and the basis therefor with appropriate documentation in accordance with Section 13 below. Client agrees to respond to all Chargebacks promptly. If Payment Facilitator is unable to recover funds related to a Chargeback for which Client is liable, Client will pay Payment Facilitator the full amount of the Chargeback immediately upon demand. Client agrees to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of Payment Facilitator related to Payment Facilitator’s efforts to collect any Sub-Merchant Account deficit balances unpaid by Client.
If Payment Facilitator determines that Client is incurring an excessive amount of Chargebacks, Client may be subject to a Card Organization’s monitoring program. Client is responsible for monitoring Client’s monthly chargeback percentage and developing chargeback reduction programs as required by the Card Organizations. Payment Facilitator may also establish controls or conditions governing Client’s Sub-Merchant Account, including but not limited to (a) an increase in processing fees, (b) creating a Reserve Account in an amount reasonably determined by Payment Facilitator to cover anticipated Chargebacks and related fees, (c) delaying payments, and (d) terminating or suspending the Services and this Agreement. Failure to establish such controls or conditions as established by Payment Facilitator within the specified period (or ten days following notification of such controls or conditions if no time period is specified) shall constitute a breach by Client of this Agreement.
12. Processing Errors
Client agrees to promptly notify Payment Facilitator of any errors within thirty (30) days after the date of the asserted error or missing transaction(s). If Client does not notify Payment Facilitator within the 30-day period, Payment Facilitator is not liable for, nor obligated to investigate, correct, such asserted error and Client agrees that all claims related to such error are waived. If Payment Facilitator discovers processing errors, it will attempt to rectify processing errors.
13. Privacy and Legal Notices; HIPAA, TCPA, FDCPA
Client agrees to keep information received from Cardholders confidential. Client will not disclose to any third party any Cardholder account information other personal information except in connection with the Services and in accordance with the Card Organization Rules or applicable law (including but not limited as required under the Health Insurance Portability and Accountability Act or “HIPAA”). Client must keep all Cardholder information in a secure manner to prevent disclosure to unauthorized parties. Client may not disclose or distribute any such information to a third party or use the information for marketing purposes unless Client receives the express consent of the user. Furthermore, Client agrees to be subject to Payment Facilitator’s privacy policy and any other legal notices located at www.swervepay.com.
Client agrees not to use the Services in violation of any local, state or Federal laws, rules or regulations, or orders, including, but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”), Fair Debt Collection Practices Act ("FDCPA") and HIPAA and its related Rules and Regulations, and agree to indemnify, defend and hold Payment Facilitator and its Affiliated Entities (defined below) harmless from and against all Losses (defined below) that are incurred, suffered or paid, directly or indirectly, by any of them in connection with, arising out of or resulting from any claim alleging improper or illegal use of any of the Services provided to Client and/or Client Customers by Payment Facilitator or any of its Affiliated Entities, including but not limited to any claims arising from following Client’s direction for communications to Client Customers as to frequency of sending messages by any medium, including but not limited to text, e-mail, facsimile or paper regarding any matter, including but not limited to past due sums, deposits for anticipated procedures, estimates of cost of procedures, appointment reminders, payment receipts or other communications. For purposes of Section 13, indemnification of Payment Facilitator and its Affiliated Entities includes, but is not limited to payment by Client of any judgment, settlement, claim, penalties and costs, interest, reasonable attorneys’ fees and cost of defense, if Payment Facilitator or an Affiliated Entity is named as a party to any action or suit related to delivery of communications to Client Customer or otherwise subject to this indemnification. In such an event, Payment Facilitator and its Affiliated Entities shall have the option at any time of either being defended by Client’s counsel or providing their own defense to the action (subject to regular monthly reimbursement from Client for costs and fees incurred, regardless of the outcome of such action). For purposes of this Section 13: (i) “Losses” means any and all losses, liabilities, damages, penalties, obligations, awards, fines, deficiencies, demands, interest, costs and expenses (including reasonable attorneys’ fees, consultants’ fees and other professional fees and disbursements); and (ii) “Affiliated Entity” shall mean any “affiliate” of Payment Facilitator (as such term is construed under Rule 405 promulgated under the Securities Act of 1933), as well as, without limitation, any independent contractor, business partner, solution extender, or service provider under contract with Payment Facilitator or assists Payment Facilitator in delivering any of the Services provided by Payment Facilitator pursuant to this Agreement.
14. Consent to Electronic Notices
From time to time, Payment Facilitator may be required to provide to Client certain notices, disclosures or information about Client’s Sub-Merchant Account or in connection with the Services. Client agrees that this information may be provided to Client by posting it on Payment Facilitator’s website or mobile app, or by sending Client an e-mail to the e-mail of record with Payment Facilitator when Client signed up for the Services. Notices provided to Client via e-mail will be deemed given and received on the transmission date of the e-mail. Notices posted to the website or mobile app will be deemed given and received within 24 hours of posting.
15. Compliance with Law: Payment Card Industry Data Security Standards Non-Disclosure & Storage of Cardholder and Transaction Information Requirements
While Payment Facilitator and/or its Affiliates use advanced security features to ensure the security and safety of Client’s personal information and that of Client Customers, Payment Facilitator cannot absolutely guarantee the security of any of such personal information from unauthorized access, loss or disclosure by third parties. Client confirms and certifies that: (a) Client is, and shall be, in full compliance during the term of this Agreement with all laws, statutes and federal and/or state regulations, as well as the Rules as may be applicable to Client, Client’s business and any Payment Transaction; (b) all acceptances of Cards as a form of payments via the Internet shall at a minimum, include the following information and processes on their Internet sites: (i) prominent display of Sub-Merchant name as “Merchant” and as the name that will appear on the cardholder statement, (ii) a complete description of good or services offered; (iii) delivery standards including method and time for delivery; (iv) terms and conditions of purchase, and export or legal descriptions; (v) return/refund policy described in reasonable details; (vi) opportunity to review and confirm order prior to order submission; (vii) secure method for payment data transmission; (viii) currency of transaction used to make payment (USD); (ix) disclosure of Sub-Merchant outlets to country of origin; (x) display of card association or payment network logos; (xi) clear disclosure of Sub-Merchant privacy policy; (xii) alternate Sub-Merchant contact info options; and (xiii) display of web hosting company contact information; (c) it (and any outside agent that it may utilize to submit Transactions to Payment Facilitator) complies and will comply with the Payment Card Data Security Standards (“PCI DSS”) and Sub-Merchant hereby agrees to pay any fines and penalties that may be assessed by Visa, MasterCard or Discover or any other Card Organization as a result of Sub-Merchant’s non-compliance with the requirements of PCI DSS, any data breaches, or by its failure to accurately validate its compliance. Sub-Merchant will review and monitor the requirements at http://www.visa.com/CISP, and http://www.pcisecuritystandards.org in order to determine the timeframes and mandates for compliance under PCI DSS. The foregoing is an on-going obligation during the term of this Agreement and as this Agreement may be renewed. Sub-Merchant acknowledges and understands that Sub-Merchant may be prohibited from participating in Visa, MasterCard or Discover or other Card Organization programs if it is determined that Sub-Merchant is non-compliant. The following lists certain (but not all) of the current PCI DSS requirements, all of which Sub-Merchant shall comply with, if applicable: (i) install and maintain a working network firewall to protect data accessible via the Internet; (ii) keep security patches up to date; (iii) encrypt stored data; (iv) encrypt data sent across networks; (v) use and regularly update anti-virus software; (vi) restrict access to data to business (“need to know”); (vii) assign a unique ID to each person with computer access to data; (viii) not use Payment Facilitator supplied defaults for system passwords and security parameters; (ix) track access data by unique ID; (x) maintain a policy that addresses information security for employees and contractors; and (xi) restrict physical access to Cardholder information. Sub-Merchant shall notify Payment Facilitator if it utilizes any third-party that provides payment related services, directly or indirectly, and/or stores, transmits, or processes Cardholder data. Sub-Merchant is responsible for ensuring compliance of any such third-parties with PCI DSS. In the event of the failure, including bankruptcy, insolvency, or other suspension of Sub-Merchant’s business operations, Sub-Merchant shall not sell, transfer, or disclose any materials that contain Cardholder account numbers, personal information, or other Cardholder transaction information to third-parties (collectively, “Cardholder Information”). Sub-Merchant on behalf of itself and each of its agents and Affiliates shall either return this Cardholder Information to Payment Facilitator, or provide Payment Facilitator with acceptable proof of destruction of Cardholder Information. If Sub-Merchant is undergoing a forensic investigation regarding PCI DSS compliance at the time Sub-Merchant executes this Agreement, then Sub-Merchant shall fully cooperate with the investigation until completed. Payment Facilitator warrants that it and each of its Affiliates complies with the applicable required PCI DSS regulations and that Payment Facilitator and each of its Affiliates is a PCI DSS validated service provider.
16. Termination of Services
Client may cancel the Services or terminate this Agreement at any time, with, or without cause. Cancellation of the Services will become immediate upon Client’s notice to Payment Facilitator. Cancellation of the Services or termination of this Agreement will not alter Client’s obligation to pay all amounts owed to Payment Facilitator, including any Fees, and Client will continue to be bound by this Agreement, which obligations shall survive any termination of this Agreement. Upon termination of this Agreement, the license granted under this Agreement shall cease and Payment Facilitator shall not be liable to Client or any third party for such termination or access to the Services.
Upon termination of this Agreement, any pending transactions will be cancelled unless processed by Payment Facilitator (or its Payment Facilitator Processors) in Payment Facilitator’s sole discretion. Subject to Section 18 below, any funds that Payment Facilitator is holding in custody for Client at the time of termination, less any applicable Fees chargebacks, penalties or payments due under this Agreement, will be paid out to Client according to Client’s payment schedule (consistent with past practice and subject to Payment Facilitator’s rights to withhold payment for monies owed to Payment Facilitator or reserves established by Payment Facilitator). If an investigation is pending at the time Client closes Client’s Sub-Merchant Account, Payment Facilitator may hold Client’s funds until the investigation is completed. Payment Facilitator may hold all funds for up to 180 days from the date of the last transaction or 180 days from the date of the last chargeback, whichever is the later.
Payment Facilitator may terminate this Agreement and close Client’s Sub-Merchant Account for any reason or no reason at any time upon notice to Client, and without liability to Client for closing Client’s Sub-Merchant Account. Payment Facilitator may also suspend or terminate the Services and access to Client’s Sub-Merchant Account if Client: (a) have violated the terms of this Agreement, the Card Organization Rules, any other agreement Client has with Payment Facilitator, (b) pose an unacceptable credit or fraud risk to Payment Facilitator or any Payment Facilitator Processor, as determined by Payment Facilitator in its sole discretion, (c) fall outside the credit policy approved by a Payment Facilitator Processor, of if requested by a Card Organization or governmental entity, (d) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct, or (e) breach any of Client’s obligations under this Agreement. Payment Facilitator also reserves the right to add Client’s Sub-Merchant Account to the Terminated Merchant File, if Client’s Sub-Merchant Account meets the criteria defined by MasterCard.
17. Effect of Termination
Any termination of this Agreement does not relieve Client of any obligations to pay any Fees, penalties or costs accrued prior to the termination and any other amounts owed by Client to Payment Facilitator as provided in this Agreement. Client will continue to be responsible for any and all Chargebacks, credits and adjustments and all other amounts then due, or which later become due. In connection with termination, Payment Facilitator or its applicable Payment Facilitator Processor(s) may require the establishment and maintenance of a Reserve Account by Client in accordance with Section 7.
Subject to the terms and conditions of this Agreement, Payment Facilitator grants Client a personal, limited, non-exclusive, non-transferable license, during such time that Client satisfies the conditions set forth in this Agreement, to electronically access and use the Services solely for the purpose described herein. Except as expressly allowed herein or by applicable law, Client is not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following: (i) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way any components of the Services; (ii) permit any third party to benefit from the use or functionality of the Services via a rental, lease, timesharing, service bureau, or other arrangement; (iii) transfer any of the rights granted to Client under this Agreement; (iv) work around any technical limitations in the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer the any component of Services except as otherwise permitted by applicable law; (v) perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or the use of the Services by Payment Facilitator’s other licensees or customers; or (vi) export the Services, directly or indirectly.
18. Reservation of Rights and Ownership
Payment Facilitator reserves all rights not expressly granted to Client in this Agreement. Components of the Services are protected by copyright, trade secret and other intellectual property laws. Payment Facilitator and its licensors own the title, copyright, and other worldwide intellectual property rights in the Services and all copies of the Services. This Agreement does not grant Client any rights to trademarks or service marks of Payment Facilitator. This Agreement does not limit any rights that Payment Facilitator may have under trade secret, copyright, patent or other laws.
19. Privacy & Use of Client’s Information
The Services may utilize SMS messages delivered through wireless service providers, such as AT&T, Sprint, Verizon, etc. Client acknowledges that any SMS message goes through Client and the message recipient’s wireless service provider’s systems. The privacy statement of each associated wireless service provider applies as the message passes through those systems. As a requirement to permit usage of SMS systems some wireless service providers may require that Payment Facilitator disclose to them information about users of the Services and the nature of business to be conducted. In this situation the information will be used to ensure legitimate use of the SMS systems and not for marketing purposes. Client acknowledges and agrees that Payment Facilitator may provide information about Client to wireless service providers as described above. Client also acknowledges that in accessing the Services Client may upload or enter certain data from Client’s account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. Client may be made aware of or offered services, features, products, applications, online communities, or promotions provided by Payment Facilitator or Payment Facilitator’s Affiliates. Installing this application grants Payment Facilitator the right to send the identifiers for Client’s mobile device to third parties for the use of advertising purposes. Client is responsible for securely managing access to Client’s data and to the Services. Client agrees to be bound by the applicable Payment Facilitator privacy policy, as it may be amended from time to time in accordance with its terms.
20. Disclaimer of Warranties
THE SERVICES AND ANY CONTENT ACCESSIBLE THROUGH THE SERVICES ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYMENT FACILITATOR, ITS AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, PAYMENT FACILITATOR PROCESSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DEALERS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) DISCLAIM ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, CONTENT, AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NON- INFRINGEMENT. PAYMENT FACILITATOR DOES NOT WARRANT THAT THE SOFTWARE, THE SERVICES, THE SWIPE DEVICE, THIRD PARTY SERVICES OR ANY ONLINE SERVICES ARE SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, OR ERRORS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. FURTHER, PAYMENT FACILITATOR DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT OR DATA THROUGH THE SERVICES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT. THIS WARRANTY GIVES CLIENT SPECIFIC LEGAL RIGHTS, AND CLIENT MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
21. Limitation of Liability and Damages
CLIENT AGREE THAT IN NO EVENT WILL PAYMENT FACILITATOR, ANY PAYMENT FACILITATOR PROCESSOR OR ANY AFFILIATE OF PAYMENT FACILITATOR BE LIABLE FOR ANY LOSS, COST, LIABILITY OR DAMAGE INCURRED AS A RESULT OF YOUR USE OF THE SERVICES, THE TERMINATION OF SERVICES OR PARTICIPATION IN THIRD PARTY SERVICES. THE ENTIRE CUMULATIVE LIABILITY OF PAYMENT FACILITATOR, PAYMENT FACILITATOR’S AFFILIATES, ITS SUPPLIERS AND PAYMENT FACILITATOR PROCESSORS FOR ANY REASON ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OF THE SERVICES SHALL BE LIMITED AS PROVIDED HEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYMENT FACILITATOR, ITS AFFILIATES, ITS PAYMENT FACILITATOR PROCESSORS AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, THE LOSS, CORRUPTION OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS, USE OF THE SOFTWARE WITH HARDWARE OR OTHER SOFTWARE THAT DOES NOT MEET PAYMENT FACILITATOR’S SYSTEMS REQUIREMENTS OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY OF PAYMENT FACILITATOR, ITS AFFILIATES, ITS SUPPLIERS, ITS PAYMENT FACILITATOR PROCESSORS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CLIENT. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PAYMENT FACILITATOR AND CLIENT. PAYMENT FACILITATOR WOULD NOT HAVE PROVIDED THE SERVICES WITHOUT SUCH LIMITATIONS.
22. Consent
Client’s consent to do business electronically and receive electronic communications from Payment Facilitator, and Payment Facilitator’s agreement to do so covers all transactions Client conducts through the Services for as long as Client remains a licensee of the Services. If Client later decides that Client does not want to receive future communications electronically, Client may contact Payment Facilitator with withdrawal in writing of Client’s consent and discontinue the use of the Services.
23. Indemnification
Client agrees to indemnify, defend and hold Payment Facilitator, its Affiliates, its Payment Facilitator Processors, contractors, employees, agents and its third party suppliers, licensors, attorneys and partners (collectively, the “Payment Facilitator Indemnitees”) harmless from any and all claims, losses, damages, and liabilities, costs and expenses, including without limitation legal fees and expenses, arising out of or related to Client’s use or misuse of the Services, any violation by Client of this Agreement, or any breach of the representations, warranties, and covenants made by Client in this Agreement. Payment Facilitator reserves the right, at Client’s expense, to assume the exclusive defense and control of any matter for which Client is required to indemnify any of Payment Facilitator Indemnitees, including rights to settle, and Client agrees to cooperate with the defense and settlement of these claims. Payment Facilitator will use reasonable efforts to notify Client of any claim, action, or proceeding brought by a third party that is subject to the foregoing indemnification upon becoming aware of it.
24. Amendment
Please review the Agreement periodically on Payment Facilitator’s website provided to Client for additional terms and changes. Payment Facilitator has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to, Fees, terms, Internet-based services, pricing, technical support options, and other product-related policies, at any time upon notice by any means Payment Facilitator determines in its discretion to be reasonable. Client’s continued use of the Services after Payment Facilitator’s publication of any such changes shall constitute Client’s acceptance of this Agreement as modified.
25. Third Party Services
In connection with Client’s use of the Services, Client may be made aware of services, products, offers and promotions provided by third parties, and not by Payment Facilitator (“Third Party Services”). If Client decides to use Third Party Services, Client is responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing any Third Party Services. Client authorizes Payment Facilitator to use and disclose Client’s contact information, including name and address, for the purpose of making the Third Party Services Client chooses available to Client. Client agrees that the third party, and not Payment Facilitator, is responsible for the performance of the Third Party Services.
26. Export Restrictions
Client acknowledges that the Services are subject to the U.S. export controls regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII) and that Client will comply with all applicable laws and regulations. Client will not export or re-export the Services, or portion thereof, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end user, or to any end user who Client knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons.
27. Representations and Warranties
Client represents and warrants to Payment Facilitator that: (a) if an individual, Client is at least eighteen (18) years of age; (b) Client is eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by Client when Client registered is Client’s name or business name under which Client sells goods and services; (d) any sales transaction submitted by Client will represent a bona fide sale by Client; (e) any sales transactions submitted by Client will accurately describe the goods and/or services sold and delivered to a purchaser; (f) Client will fulfill all of Client’s obligations to each of Client Customers for which Client submits a transaction and will be responsible for and resolve any customer dispute or complaint directly with the purchaser and will be financially liable to Payment Facilitator for transactions entered into with purchasers; (g) Client and all transactions initiated by Client will comply with all federal, state, and local laws, rules, and regulations applicable to Client and/or Client’s business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no sales transaction submitted by Client through the Services will represent a sale to any principal, partner, proprietor, or owner of Client’s entity or any of Client’s other Affiliates; (i) Client will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (j) Client’s use of the Services will be in compliance with this Agreement; (k) Client agrees to follow the applicable Card brand operating Rules and regulations; and (l) Client is not engaged in any of the businesses or in any of the activities listed on Exhibit A, attached hereto and incorporated herein by reference.
28. Miscellaneous
Except as expressly set forth in this Agreement, this Agreement is a complete statement of the agreement between Client and Payment Facilitator and sets forth the entire liability of Payment Facilitator, its Payment Facilitator Processors, its Affiliates and its suppliers and Client’s exclusive remedy with respect to the Services and Third Party Services and their use. The suppliers, agents, employees, distributors, and dealers of Payment Facilitator are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Payment Facilitator. Any waiver of the terms herein by Payment Facilitator must be in a writing signed by an authorized officer of Payment Facilitator and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement may not be assigned by Client without the prior written approval of Payment Facilitator, but may be assigned without Client’s consent by Payment Facilitator without restriction. Any assignment in violation of this Section will be void. This Agreement will be governed by Illinois law, without regard to its conflicts of law principles, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in Cook County, Illinois or federal court for the Northern District of Illinois for the resolution of any dispute with respect to the this Agreement or any of the Services called for herein. Client hereby waives Client’s right to trial by jury with respect to any judicial proceeding relative to this Agreement or any of the Services called for herein. For purposes of this Agreement, the term “Affiliate” shall mean a person or entity controlled by or under common control with another person or entity, as the term “affiliate” is construed under Rule 405 promulgated under the Securities Act of 1933 as amended. All rights and obligations of the parties hereto accruing under this Agreement during the term of this Agreement shall survive any termination of this Agreement. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. This Agreement may be executed in several counterparts, whether by original, photocopy, facsimile, email pdf or electronic signature, both of which when taken together shall constitute one valid binding Agreement. By clicking via the internet or other electronic media that Client agrees to the terms of this Agreement, this shall constitute the counterpart electronic signature by both Client and Payment Facilitator to be bound by the terms of this Agreement. Any notice required hereunder shall be deemed given if delivered in writing in person or sent by email to the email address of the other party set forth below or if sent by Federal Express or other bonded courier one business day after sent via next business day or same business day delivery to the address of the party set forth below to three business days after deposit in the U.S. Mail by either registered or certified mail, addressed to the party entitled to notice at the address set forth below, or if a party delivers notice of a change in address, then the delivery shall be made to the most recent address provided by notice of the party changing his, her or its address as set forth in such notice. If no address is designated by Client below, then the address shall be Client’s main corporate address as set forth on Client’s main corporate website.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date of full execution of this Agreement.
| CLIENT: |
| {{{Business_Legal_Name}}} |
By: | |
Its: | |
Date of Execution: {{{Todays_Date}}} | |
Address: {{{Business_Street_Address}}} {{Business_City}}, {{Business_State}} {{Business_ZipCode}} | |
Email: {{{Business_Contact_Email_Address}}} |
15807945
EXHIBIT A
PROHIBITED BUSINESSES AND ACTIVITIES
The following businesses and activities are strictly prohibited, unless otherwise agreed to by Payment Facilitator and Payment Facilitator Processors:
- Age Restricted Products or Services
- Any business where the anticipated % of International Card Sales is expected to be greater than 20% of total sales
- Bail Bond Services or Bankruptcy Lawyers
- Career Placement or Advice Center Businesses
- Crowd Sourced Fundraising
- Dating Services
- Delayed Delivery Businesses where the good or service provided is not shipped, delivered or fulfilled when the card transaction is processed but is to occur at a future date
- Online Personal Computer Technical Support
- Personal Enhancement Products and/or Nutraceuticals
- Psychic Services
- Shipping or Forwarding Brokers
- Travel Agencies or Tour Operators
- Any product, service or activity that is deceptive, unfair, predatory or prohibited by one or more Card Brands
- Any merchant selling goods or services that represent a violation of any law, statute or regulation
- Any merchant operating outside the United States
- Any merchant submitting sales for payment that resulted from another commercial entity providing goods or services to the cardholder, including those businesses that may otherwise qualify themselves as a Payment Service Company or Payment Facilitator
- Any 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 merchants accepting a card as payment for a dishonored check or for an item deemed uncollectible by another merchant
- Loan payments conducted on a Visa branded credit card
- Adult entertainment and/or adult content websites including Electronic Commerce adult content (videotext) merchants that would include MCC’s 5967,7273 and 7841
- Buyer Clubs/Membership Clubs
- 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
- Gambling Activities and Establishments including MCC 7995, including lotteries, internet gaming, daily fantasy sports, contests, sweepstakes, “special incentives” or offering of prizes as an inducement to purchase goods or services
- Infomercial merchants
- Internet Pharmacies
- Multi-Level Marketing Businesses
- Outbound Telemarketers and Telecom merchants including MCC’s 4814,4816, and 5966
- Payment Facilitators
- Rebate-Based Businesses
- Up-Selling merchants
- Any merchant that accepts a card at a scrip-dispensing terminal
- Airlines including Charter Airlines
- Bestiality
- Bidding Fee Auctions including Penny Auctions
- Brand or Reputational damaging, potential or otherwise, activities including Child Pornography, Escort Services, Mail Order Brides, Occult
- Collection Agencies
- Commodity Trading or Security Trading
- Credit Counseling or Credit Repair Services
- Credit Protection or Identity Theft Protection Services
- Cruise Lines
- Currency Exchanges or Dealers
- Debt Elimination, Debt Reduction or Debt Consulting Services
- Digital Wallet or Prepaid Companies
- Discount Buying Memberships/Clubs
- Discount Medical or Dental plans including Discount Insurance
- Discount Coupon merchants or Online Sites
- Distressed Property Sales and/or Marketing
- Drug Paraphernalia
- e-Cigarettes
- Firearms and weapons including Ammunition
- 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
- Marijuana dispensaries and related products or services
- Money Transfer, Wire Transfers, Money Orders, Transmitters, and Check Cashing including merchants required to be registered as Money Service Business
- ”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 periodically and/or a significantly larger amount
- Pawn Shop
- Prepaid Phone Cards
- Prepaid Phone Services
- Pseudo Pharmaceuticals
- 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
- Transacting Virtual Currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world
21916745.3
SwervePayGeneralTermsofService.OS.042020
Effective May 29, 2020
DownloadTable of Contents
SwervePay General Terms of Services for All Services
UNLESS OTHERWISE EXPRESSLY AGREED IN AN AUTHORIZED WRITTEN AGREEMENT, THESE TERMS OF SERVICE (“TOS”) APPLY TO ALL SERVICES DELIVERED BY OR RECEIVED FROM SWERVEPAY FOR ANY MERCHANT OR CUSTOMER. THESE TOS ARE INCORPORATED BY REFERENCE INTO EACH AND EVERY AGREEMENT BETWEEN SWERVEPAY AND EACH PURCHASE, CONSUMER, OR OTHER USER OF ITS SERVICES. IT CONSTITUTES A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND SWERVEPAY, LLC. YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE AGREEMENT. BY USING ANY OF OUR SERVICES, YOU ACCEPT THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, PROMPTLY DISCONTINUE USE OF THE SERVICES.
In these TOS, “Customer,” “You” and “Your” refer to each customer or sub-merchant and its designated agents, including Your administrative contact, employees, officers, directors, agents, Affiliates, successors and assigns, and “SwervePay,” “we,” “us” and “our” refer collectively to SwervePay, LLC, a Delaware limited liability company, and its Members, officers, directors, employees, agents, affiliates, subsidiaries (including, but not limited to SwervePay Auto, LLC, SwervePay Finance, LLC and SwervePay Health, LLC), successors and/or assigns. These TOS explains our obligations to You, and Your obligations to us in relation to the service(s) You purchase, use or otherwise acquire from us (“Services”). By using any Services, You agree to establish an account with us for such Services. When You use Your account or permit someone else to use Your account to purchase or otherwise acquire access to any SwervePay Services or to modify or cancel Your Services (even if we were not notified of such authorization), this Agreement as amended covers any such service or actions. Additionally, You agree that the administrative contact for any Services provided to You is Your agent with full authority to act on Your behalf with respect to such Services, as permitted by the Services and related documentation, including (but not limited to) the authority to terminate, transfer (where transfer is permitted by the Agreement), or modify such Services, or purchase additional services. Any acceptance of Your application(s) or requests for our Services and the performance of our Services will be deemed to occur at our offices in Chicago, Illinois.
Important Notice Concerning Bundled Services: If You purchase separate SwervePay Services that are sold together as a “bundled” package, as opposed to Your purchasing such services separately, termination of any part of the Services may result in termination of all SwervePay Services provided as part of the bundled package unless arrangements are made to pay for the Services separately.
Definitions
“Affiliate(s)” means a person or entity controlled by or under common control with another person or entity, including, without limitation, as the term “affiliate” is construed under Rule 405 promulgated under the Securities Act of 1933 as amended.
“Customer Agreement(s)” means any agreement for Services between SwervePay and a Customer, each of which shall and hereby does incorporate these TOS by reference except as otherwise expressly agreed in such agreement.
“Card Issuer” means, as applicable, any of Visa, MasterCard, Discover, American Express, any ATM or debit or gift card network, or any other financial service card organizations, with two or more of such organizations hereinafter sometimes collectively referred to as “Card Issuers” and as to each Card Issuer, each such card issued by it, a “Card” and each holder or owner of a Card being a “Cardholder” or “Customer.”
“Card Organization Rules” means the rules imposed from time to time by each Card Issuer intended to govern the usage of its network and services.
“Chargeback” means a challenge to a payment that a Customer or Cardholder files directly with his, her or its Card Issuer, bank or other similar party.
“Customer Data” means any information received from a Cardholder or Customer used in connection with the Services.
“Financial Institution” means banks or financial institutions having business relationships with one or more Financial Processors that have agreed to evaluate and provide merchant accounts and payment authorization services to merchants.
“Financial Processor” means an entity with which SwervePay has established a relationship that performs the back-end authorization and processing of Transactions between the Customer’s Financial Institution and the Cardholder’s bank.
“Services” means any services used by Customer, including merchant services, payment services, and services involving Software and any add-on or additional services requested or specifically described in an agreement. Current descriptions of SwervePay’s Services are available at www.swervepay.com.
“Software” means the object code version of SwervePay’s client software, HTML code, application programming interfaces (“APIs”), related documentation and other client software or code which SwervePay may provide to Customer, including updates, to enable SwervePay to provide the Services to Customer. Unless otherwise specified, Software shall not include any source code. The Software is proprietary to SwervePay and is licensed to Customer pursuant to these TOS, and subject strictly to those terms and restrictions.
“Management Web Site” means SwervePay’s online account management tools for Your use of the Services.
“Swipe Device” means a device, which if purchased or required for Your use of the Services, is capable of receiving information from a Card for payment processing, including via magnetic swipe, chip-reader, or other means. Once Your Customer Account is approved, and if purchased or required for Your account, a Swipe Device will be sent to You or acquired by You for use at the address provided. SwervePay does not warrant that the swipe device or the Services will be compatible with Your computer, mobile Device or third-party carrier. Your use of the Swipe Device and the Services may also be subject to the terms of Your mobile device manufacturer and Your carrier. We shall not be responsible for any damages caused by defects associated with any Swipe Devices used by You with respect to Your business or any hacking, or other unauthorized use, of any of such Swipe Devices.
“Transaction” means a transfer of funds between You and a third-party using the Services, including information related to the purchase of goods and services from Customer by a third-party, such as any of its customers, clients, patients, or consumers of its products and/or services. Specifically, a Transaction is an authorization, delayed capture, sale, void, voice authorization or credit data transmission between SwervePay and its back-end processors in connection with the Services.
Customer Obligations
General Service Requirements. Customer shall be solely responsible for the following:
- Accuracy of Information Provided. You must provide accurate and complete information to us when applying for Your Customer Account. If Your request to open a Customer Account is approved, we may request additional information from You at any time. You shall maintain and promptly update such information if it should change.
- Customer Websites. Customer is responsible for establishing, hosting and maintenance of its website(s) and its connection to the internet (“Customer Website(s)”), fulfilling all orders for products and services sold by merchant to its users on the merchant website(s) or otherwise, including without limitation transmitting merchant’s registration information and transaction data to SwervePay servers or via the SwervePay Management Website and ensuring that any data stored or transmitted by merchant in conjunction with the Services and for enrollment for the Services is accurate, complete and in the form as requested by SwervePay, is securely collected and is not corrupted due to merchant’s systems. Customer is also responsible for reviewing the transactions in its account on a regular basis and notifying SwervePay promptly of unauthorized activity through its account.
- Banking. Customer is responsible for establishing and maintaining a commercial banking relationship and account with one or more Financial Institutions, for purposes of receiving the Services (“Account”). The terms of such relationship shall be determined solely by Customer and the Financial Institution.
- Access. Customer is responsible for keeping its access credentials, including usernames, user IDs, passwords and the like, confidential. Customer shall notify SwervePay immediately upon learning of any unauthorized use of its username or password. Customer shall be solely responsible for (i) updating its passwords for access to the Services periodically, and (ii) creating passwords that are reasonably “strong” under the circumstances, in accordance with SwervePay’s requirements. A “strong” password is at least six characters long, does not contain all or part of the user’s account name, and contains at least three of the four following categories of characters: uppercase characters, lowercase characters, base 10 digits, and symbols found on the keyboard (such as !, @, #). Strong passwords should be generated in such a way that knowledge of one does not lead to knowledge of another.
- Business Practices. Customer is responsible for maintaining commercially reasonable business practices in conjunction with use of the Services, collecting, storing and transmitting its customer data in a secure manner and protecting the privacy of its customer data. Customer shall comply with SwervePay’s requests for reasonable action on Customer’s part, to the extent necessary, to maintain security and integrity of the Services.
- Computing. Customer is responsible for updating to the most current Software version and security updates and patches necessary to properly operate the Services and keeping all Customer enrollment and payment information current and updated on the Management Web Site; and
- Compliance. Customer agrees, and hereby represents and warrants that Customer shall (a) use the Services in accordance with the applicable user guides and other documentation provided by SwervePay from time to time; and (b) not use or permit others to use information obtained through the use of the Services for any purpose other than in conjunction with the Services and in a manner described in the documentation for the Services.
Honoring Cards. Whenever possible, You will identify the person presenting a Card and purporting to be a person authorized to use a Card and check the expiration date and signature on each Card. You will not honor a Card if the Card has expired or if You determine or suspect that the account number on the Card does not match the account number on the Card’s magnetic stripe or the account number is listed on a current Electronic Warning Bulletin file. You are responsible for ensuring that the Cardholder understands that You are responsible for the transaction, including the goods or services that are the subject of the transaction. In addition, You are solely responsible for all customer service issues relating to Your goods or services, including pricing, fulfillment, order cancellation, returns, refunds and adjustments, warranty, and support. You will not add any amount to the posted price of goods or services You offer as a condition of paying with a Card that is not consistent with the Card Issuer Rules and laws. You will properly disclose to each Cardholder that is or may be used in connection with any of the transactions subject to this Agreement, at the time of transaction, any limitation You have on accepting returned merchandise. Your return policy must be in accordance with the Card Issuer Rules. If Your refund policy prohibits returns or is unsatisfactory to the Cardholder, You may still receive a Chargeback relating to such transactions. You agree to make a written receipt available to the Cardholder for any transaction. You may provide the Cardholder the option to decline a written receipt. You may also offer electronic receipts delivered by SMS or e-mail to the Cardholder.
Returns. You agree to process returns of, and provide refunds and adjustments for, Your goods or services through Your Customer Account in accordance with these TOS, any Customer Agreement, each Vendor Processor’s Rules and applicable Card Issuer Rules.
Restrictions on Use of Services. In connection with the Services, You will comply with all Payment Card Industry Data Security Standard (“PCI-DSS”) requirements and consent to our Acceptable Use Policy, which is available at www.swervepay.com: You also agree that You will (a) not send SMS receipts to customers who have expressly refused delivery of a receipt in that manner; (b) comply with all applicable laws and regulations and all requirements of: (i) Card Issuers applicable to merchants; and (ii) all SwervePay Processors; (c) maintain the security of account login information You receive as part of Your use of the Services; (d) if You lose Your computer or mobile device, or You have reason to believe that Your account is no longer secure, You will immediately notify us; (e) not accept payments in connection with any illegal activity, or any activity that is inconsistent with Your type of business or any activity prohibited by the rules of Your Card Issuer.
Compliance With Law. You may only use the Services in compliance with all laws, rules, and regulations applicable to the use of the Services. We may choose not to authorize or settle any transaction submitted to SwervePay if we believe the transaction is in violation of these TOS, the applicable Customer Agreement(s) or may cause harm to You, us, or our Processors.
Processing Errors. You will promptly notify us of any errors within ten (10) days after the date of the asserted error or missing transaction(s). If You do not notify us within the ten (10)-day period, we shall not be liable for, nor obligated to investigate, correct, such asserted error and You agree that all claims related to such error are waived. If we discover processing errors, we will attempt to rectify those processing errors efficiently.
Wireless Service Providers. The Services may utilize SMS messages delivered through wireless service providers, such as AT&T, Sprint, Verizon, etc. You acknowledge that any SMS message goes through Your and the message recipient’s wireless service provider’s systems. The privacy statement of each associated wireless service provider applies as the message passes through those systems. As a requirement to permit usage of SMS systems some wireless service providers may require that we disclose to them information about users of the Services and the nature of business to be conducted. In this situation the information will be used to ensure legitimate use of the SMS systems and not for marketing purposes. You acknowledge and agree that we may provide information about You to wireless service providers as described above. You may upload or enter certain data from Your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You may be made aware of or offered services, features, products, applications, online communities, or promotions provided by us or our affiliates. Installing any of our applications or Software grants us the right to send the identifiers for Your mobile device and Your Customers to third-parties for the use of advertising purposes. You are responsible for securely managing access to Your data and to the Services. You agree to be bound by our privacy policy, as it may be amended from time to time in accordance with its terms or these TOS.
SwervePay's Obligations
Services. Subject to the terms in this Agreement, SwervePay agrees to (i) provide to Customer the Services for which Customer enrolls and pays the applicable fees, either upon request or pursuant to a Customer Agreement, including without limitation the transmission of Transaction information to Financial Processors, and (ii) provide Customer with access to standardized reports regarding Customer’s Transactions processed using the Services and certain reporting tools to assist Customer in accounting activities. SwervePay hereby grants to Customer the right to access and use the Services in accordance with these TOS and any applicable Customer Agreement. SwervePay is not bound by nor should Customer rely on any representation by (i) any agent, representative or employee of any third-party referring or relating to the Services, including Your application or request for them; or in (ii) information posted on our Website of a general informational nature.
Modification of Terms; Changes to Services. Except as otherwise provided in a Customer Agreement, Customer agrees that SwervePay may: (a) revise, amend, update or otherwise change these TOS, including without limitation modifying the service fees or payment terms; and/or (b) revise, amend, update or otherwise change or terminate any part of the Services at any time. Any such revision or change will be binding and effective either, at SwervePay’s sole discretion, thirty (30) days after posting a revision of these TOS on the SwervePay Management Web Site, or upon electronic or written notification to You. You agree to periodically review the Management Web Site, including the current version of this Agreement available on the Management Web Site, to be aware of any such revisions. If You do not agree with any revision to the Agreement, You may terminate this Agreement at any time by providing us with thirty (30) days’ prior written notice. Notice of Your termination will be effective thirty (30) calendar days after receipt and processing by us. Any fees paid by You if You terminate Your Agreement with us are nonrefundable, except as otherwise expressly stated herein, but You will not incur any additional fees due to such termination. By continuing to use SwervePay Services after any revision to this Agreement or change in Services, You agree to abide by and be bound by any such revisions or changes. No non-executive employee, contractor, agent or representative of SwervePay is authorized to alter or amend the terms and conditions of these TOS.
Secure Transactions. SwervePay has implemented and will maintain security systems for the transmission of Customer’s Transactions, consisting of encryption and “firewall” technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet. SwervePay does not guarantee the security of the Services or Transaction data, and SwervePay will not be responsible in the event of any infiltration of its security systems or other breach of Security of Your data or systems or Customer data or systems, provided that SwervePay has used commercially reasonable efforts to prevent any such infiltration. Customer further acknowledges and agrees that Customer, and not SwervePay, is responsible for the security of Transaction data or information or any other information stored on Customer’s servers, and that SwervePay is not responsible for any other party’s servers (other than subcontractors of SwervePay solely to the extent SwervePay is liable for its own actions hereunder).
Technical Support for Services. SwervePay shall provide the technical support services to Customer, if any, pursuant the support package, if any, selected by Customer in a Customer Agreement. SwervePay’s then-current, standard technical support descriptions for Services shall be available at www.swervepay.com.
Proprietary Rights, Licenses, Restrictions
SwervePay IP. Except as otherwise set forth herein, all right, title and interest in and to: (i) all registered and unregistered trademarks, service marks and logos; (ii) all patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) all trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) all registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property (“IP”), proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services identified herein (“SwervePay IP”) are owned by SwervePay Services or its licensors, and You agree to make no claim of interest in or ownership of any such SwervePay IP. You acknowledge that no title to the SwervePay IP is transferred to You, and that You do not obtain any rights, express or implied, in the SwervePay Services or its licensors’ services, other than the rights expressly granted in this Agreement. To the extent that You create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to You, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by SwervePay and all existing and future copyright and other right, title and interest in and to each such Derivative Work, are assigned to, and shall automatically vest in, SwervePay, and to cooperate with SwervePay in connection with any actions by it to establish its rights in the same. SwervePay shall have no obligation to grant You any right in any such Derivative Work. Except to the extent permitted by applicable law, Customer shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Services or any components thereof, or otherwise apply any procedure or process to the Services or components thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings or any algorithm, data, process, procedure or other information contained therein. Customer shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Services or components thereof.
Limited License for Software and Services. Unless otherwise expressly provided in a Customer Agreement, SwervePay grants Customer a personal, limited, non-exclusive, non-transferable license, during such time that You satisfy the conditions set forth in each of Your Customer Agreement(s) and these TOS, to electronically access and use the Services solely for the purpose described herein and in any Customer Agreement. Except as expressly allowed herein, a Customer Agreement or by applicable law, You are not permitted to do any of the following and shall not allow any third-party to do any of the following: (i) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way any components of the Services; (ii) permit any third-party to benefit from the use or functionality of the Services via a rental, lease, timesharing, service bureau, or other arrangement; (iii) transfer any of the rights granted to You under any Customer Agreement or these TOS; (iv) work around any technical limitations in the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer the any component of Services except as otherwise permitted by applicable law; (v) perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or the use of the Services by our other licensees or customers; or (vi) export the Services, directly or indirectly. We reserve all rights not expressly granted to You in these TOS or a Customer Agreement. Components of the Services are protected by intellectual property laws, including international, U.S. federal and state laws. SwervePay and its licensors, collectively (as their respective interests may appear) own the title, copyright, and other worldwide intellectual property rights in the Services and all copies of the Services and any Software. Neither any Customer Agreement nor these TOS: (i) grant You any rights to our trademarks or service marks or (ii) limit any rights that we may have under trade secret, copyright, patent or other laws, domestic or abroad.
Customer Data. All “Customer Data” provided by You or any of Your Customers in the course of a Transaction shall be owned by You or Your Customer (subject to Your right to make the grants in this Section 3). You hereby grant us a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display the Customer Data for the purposes of (i) providing and improving the Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymised and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and (iv) any other purpose for which consent has been provided by the Customer.
Privacy and Security
SwervePay Privacy Polices. Our privacy statement for the Services is located on our Website at https://www.SwervePay.com and is incorporated herein by reference, as it is applicable to the Services and each Customer Agreement. The privacy statement sets forth Your and our rights and responsibilities with regard to Your personal information. You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Website. You agree to monitor our Website periodically to review such revisions. By using our Services after modifications to the privacy statement, You have agreed to these modifications. You acknowledge that if You do not agree to any such modification, You may terminate this Agreement.
Cardholder Information. You shall keep all Customer Data confidential and secure. You shall not disclose to any third-party any Cardholder account information or other personal information except in connection with the Services and in accordance with the Card Organization Rules or applicable law (including but not limited as required under the Health Insurance Portability and Accountability Act or “HIPAA”). You must keep all Cardholder information in a secure manner to prevent disclosure to unauthorized parties. You may not disclose or distribute any such information to a third-party or use the information for marketing purposes unless You receive the express consent of the user.
Use of Data. Customer acknowledges and agrees that in the course of providing the Services, SwervePay will capture certain transaction and user information (collectively, the “Data”). Customer agrees to provide to SwervePay, and SwervePay shall capture, only the Data that is required by the Software and is necessary for SwervePay to provide the Services. SwervePay agrees to use Data in its personally identifiable form only as necessary to complete the requested transaction. SwervePay shall not disclose Data to third-parties or use the Data, except that SwervePay shall have the rights: (i) to use the Data as necessary to perform the Services pursuant to these TOS or contemplated in a Customer Agreement (including distributing the Data to third-parties providing services requested by Customer); (ii) to maintain the Data as long as necessary, as required by law or as used internally for record keeping, internal reporting, and support purposes; (iii) to compile and disclose Data in the aggregate where individual merchant Data is not identifiable, including without limitation, calculating merchant averages by region or industry; and (iv) to provide the Data as required by law or court order, or to defend SwervePay’s rights in a legal dispute. You represent and warrant that You have provided notice to, and obtained consent from, any third-party individuals whose personal Data You supply to us as part of our services with regard to: (i) the purposes for which such third-party’s personal Data has been collected, (ii) the intended recipients or categories of recipients of the third-party’s personal Data, (iii) which parts of the third-party’s Data are obligatory and which parts, if any, are voluntary; and (iv) how the third-party can access and, if necessary, rectify the data You hold about them. You further agree to provide such notice and obtain such consent with regard to any third-party personal Data You supply to us in the future. We are not responsible for any consequences resulting from Your failure to provide notice or receive consent from such persons or entities nor for Your providing outdated, incomplete or inaccurate information.
PCI-DSS Requirements. While SwervePay and/or our Affiliates use security and encryption features to ensure the security and safety of Your personal information and that of Your Customers, SwervePay cannot absolutely guarantee the security of Your personal information from unauthorized access, loss or disclosure by third-parties. To ensure the highest level of security You agree to comply with our Acceptable Use Policy, including the PCI-DSS requirements and You represent and warrant that, while using any Services: (a) You are, and shall remain, in full compliance with all laws, statutes and federal and/or state regulations, as well as the Rules as may be applicable to You, Your business and any Card transaction; (c) You (and any outside agent that You may utilize to submit Transactions to SwervePay) comply and will comply with all our Acceptable Use Policy and all PCI-DSS requirements and You hereby agree to pay any fines and penalties that may be assessed by any Card Issuer as a result of Your non-compliance with PCI-DSS requirements, any data breaches, or by Your failure to accurately validate its compliance. You will review and monitor the requirements at http://www.visa.com/CISP, and http://www.pcisecuritystandards.org in order to determine the timeframes and mandates for compliance under PCI-DSS requirements. Your obligations to do so continue through the later of (y) the Termination Date or the (z) date You cease using all Services. You acknowledge and understand that You may be prohibited from participating in Card Issuer programs if it is determined that You are non-compliant.
Fees, Accounts and Payment Terms
Fees. As consideration for the Services, You agree to pay SwervePay the applicable service(s) fees set forth in an Exhibit A, or as otherwise provided by SwervePay in each Customer Agreement in force and effect, at the time of Your selection (and as it may be amended from time to time), or, if applicable, upon receipt of Your invoice from SwervePay. Should Customer wish to add Services, such addition shall be made by an additional Exhibit A either by written agreement signed by SwervePay and Customer or by e-mail from one party to the other acknowledged by reply e-mail. Fixed monthly fees are charged monthly in advance. Charges that are based on usage, such as text messages or transaction fees, are billed as soon as practicable following the end of the month. No objection to charges will be valid if not provided by notice to SwervePay within thirty (30) days of the date of the applicable invoice or charge by SwervePay. SwervePay will investigate such charges, which shall remain due and payable (and not subject to set off or deduction) until such point in time, if any, that SwervePay advises Customer to the contrary. Customer agrees to an automatic debit to ACH to settle billings; there shall be no separate invoice sent. SwervePay shall have the right from time to time to increase the prices called for on Exhibit A on thirty (30) days’ prior notice to Customer (either by e-mail or written notice), which shall be effective should Customer not object to such price increase within such thirty (30) day period; should customer object to such price increase on a timely basis, then at SwervePay’s option, to be delivered in writing or by e-mail, such price increase shall be rescinded retroactive the original notification, subject to SwervePay’s right to terminate this Agreement as set forth below.
Payments; Refunds; Pre-Payments. You are solely responsible for the credit card or Direct Debit (“Payment Method”) account information You provide to SwervePay and must promptly inform SwervePay of any changes thereto (e.g., change of expiration date or account number). Changes should be communicated to SwervePay by entering the updated information through the SwervePay tools or contacting SwervePay customer support. All payments shall be made in U.S. dollars. All fees are non-refundable unless otherwise explicitly stated in this Agreement. If we do issue a refund, we will do so via the Payment Method used by You to pay for the Services being refunded. For additional services or add-on services, Customer shall either prepay SwervePay’s then-current annual prepaid fees, if available, or pay the then-current monthly fees for such services, in accordance with the applicable Customer Agreement. If Customer uses SwervePay add-on services that are subject to additional standard fees that are not prepaid at enrollment, then SwervePay shall either immediately charge Customer’s credit card or debit Customer’s DDR account, as applicable, for SwervePay’s then-current fees for such services or invoice Customer for such additional standard fees, and Customer shall pay such invoice immediately.
Taxes. Customer is solely responsible for collecting, reporting and remitting any taxes required to be collected, paid or withheld in connection with the Services (“Taxes”). SwervePay is not responsible to determine whether or not Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. If in a given calendar year You receive (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Vendor or its Vendor processor(s) is authorized to report annually to the Internal Revenue Service (“IRS”), as required by law, Your name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments You receive in a calendar year, and the total dollar amount of the payments You receive for each month in a calendar year. You agree to pay all Taxes (including value added, sales and other taxes (other than taxes based on SwervePay’s income)) related to the Services or payments made by You hereunder. All payments due to SwervePay shall be made without any deduction or withholding on account of any tax, duty, charge or penalty, except as required by law, in which case, the sum payable by a party in respect of which such deduction or withholding is to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, SwervePay receives and retains (free from any liability in respect thereof) a net sum equal to the sum it would have received but for such deduction or withholding being required. Set up fees, if any, will become payable on the applicable effective date for the applicable SwervePay Services. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less (the “Agreement Interest Rate”). Customer hereby authorizes us to charge Customer’s Payment Method for the fees due for the Services, and Customer shall provide to SwervePay proper authorization for purposes of allowing SwervePay to debit the applicable Customer account to collect fees due under these TOS and each Customer Agreement. All fees owed by Customer to third-parties (for example, Financial Institutions, Financial Processors and merchant account providers), are Customer’s sole responsibility and are not covered by the Services.
Overcharge Fee. Excluding merchant services, in the event You exceed the Transaction limit permitted for the applicable Services as provided in any Customer Agreement (“Excess Transaction”) in any month, Customer may be charged a monthly transaction fee (“Monthly Overcharge Fee”) to be determined by multiplying each Excess Transaction processed in that month by the corresponding Service’s Transaction Fee. The Monthly Excess Transaction Fee shall be invoiced or debited in accordance with the terms for Fees above.
Chargebacks. These terms apply to Chargebacks for merchant services:
- The amount of a transaction may be reversed or charged back to Your Customer Account (each a “Chargeback”) for reasons, including, but not limited to, any one of the following: (i) an invalid Card account is submitted by You; (ii) neither the Cardholder nor a person authorized by the Cardholder received the goods or services requested; (iii) the Cardholder disputes the quality of the goods or services received; (iv) the Cardholder never received a credit for a returned item or a cancelled order; (v) the Cardholder was charged incorrectly; (vi) the authorization code is invalid; (vii) the Card was expired or not effective; (viii) the transaction is disputed; (ix) the transaction is reversed by the Card Issuer, our Processor, or a financial institution for any reason; or (x) the transaction was not authorized.
- For any transaction that results in a Chargeback, we may withhold or cause to be withheld the Chargeback amount in the Reserve Account. You may be subject to a chargeback on sales for a minimum period of one hundred eighty (180) days from the date the sale was entered into the processing system. We may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by each applicable Vendor Processor from Your Customer Account, Your Reserve Account, if any, any proceeds due to You, or Your bank account. If You have pending Chargebacks or we reasonably believe that a Chargeback is likely, we may withhold or delay payments from Your Customer Account for the later of: (i) two hundred seventy (270) days following the Termination Date; (ii) one hundred eighty (180) days from Your last Chargeback; or (iii) thirty (30) days following Your delivery of written notification disputing the Chargeback in question and the basis therefor with appropriate documentation in accordance herewith. You agree to respond to all Chargebacks promptly. 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 together with interest computed at the Agreement Interest Rate on any unpaid Chargeback amounts You owe to us from time to time. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of SwervePay related to any efforts to collect any Customer Account deficit balances (including, but not limited to, Chargeback amounts) which remain unpaid by for more than thirty (30) days.
Customer Accounts.
- Deposit of Funds. Upon validation of Your Customer Account, Vendor or Vendor’s Processor(s) will deposit to Your Customer Account the amounts actually received by us for completed transactions submitted through the Services at the end of every business day unless otherwise agreed in Your Customer Agreement. Payouts to Your bank account will normally register within two (2) to three (3) business days. Each Transaction will be considered complete when SwervePay has received the funds and when such funds have been accepted by the designated bank or financial institution. We shall have the right to deduct from Your Sub-Customer Account: (i) following the end of each month during the term of this Agreement any Fees owing from You to us or any of our Processors; and (ii) immediately at any time, any Chargebacks, penalties or other Fees owing from You to us or any of our Processors. Should we need to conduct an investigation or resolve any dispute related to Your Sub-Customer Account (including but not limited to issues around possible prohibited transactions or other breaches of these TOS or any Customer Agreement, or applicable SwervePay, Processor or Card Issuer Rules), we may defer payout or restrict access to Your funds for as long as we deem necessary. We also may defer payout or restrict access to Your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
- Customer Account Activity. You are responsible for monitoring Your transactions and ensuring that our payments to You are correct. You agree to contact us immediately if You discover or become aware of an error or an unauthorized transaction on Your Customer Account. You must notify us of any errors in payments made to You within thirty (30) days of the error or unauthorized transaction. Your failure to notify us of any such errors within the applicable thirty (30)-day period will constitute a waiver of any right or claim to amounts owed to You. Further, You are responsible for reconciling all transactions with Your Customer Account and keeping permanent records of such transactions.
- Reserve Accounts. For the purpose of providing a source of funds to pay damages which SwervePay or our Processors may potentially suffer in connection with providing You Services, and to pay Fees, fines, Chargebacks or other amounts You may owe or be assessed by any processor, a separate reserve account (the “Reserve Account”) may be established from time to time by You, us or any of our Processors to secure Your current and/or future potential obligations as reasonably determined us or our Processor. The Reserve Account will be in an amount as reasonably determined to protect the present or future interests and may be raised, reduced or removed at any time, in our or our Processor’s sole discretion. If there are not sufficient funds in Your Reserve Account, You grant us the right of recoupment and set-off and may fund the Reserve Account from any funding source associated with Your Customer Account, including but not limited to any funds due to You for the Services or under any Customer Agreement or available in Your bank account. If, in our opinion, the Personal Property Securities Act 2009 enables us to improve our security interest over the Reserve Account, You agree to do all things necessary, including obtaining the appropriate authorizations and executing any document to effect such improvement.
Representations and Warranties; Disclaimers; Limitations of Liability
By SwervePay. SwervePay represents and warrants that: (a) it has all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (b) all corporate action on the part of SwervePay, its officers, board of directors and stockholders necessary for the performance of its obligations under this Agreement has been taken.
Limitations of Liability.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN A SERVICES AGREEMENT (AS RELATES TO THE SUBJECT MATTER THEREOF), OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, SWERVEPAY AND ITS LICENSORS, AS APPLICABLE, EXPRESSLY DISCLAIM EACH WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES OR SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- SWERVEPAY’S LIABILITY TO YOU RELATING TO THE SERVICES, WHETHER ARISING UNDER THESE TOS, A SERVICES AGREEMENT, OR OTHERWISE, IS LIMITED, AT SWERVEPAY’S OPTION, TO (a) REFUNDING THE PRICE OF THE SERVICES IN RESPECT OF WHICH THE LIABILITY AROSE OR (b) TO PROVIDING, REPLACING OR REPAIRING THOSE SERVICES, OR (c) PROVIDING THOSE SERVICES AGAIN IN A MANNER REASONABLY CALCULATED TO AVOID FUTURE LIABILITY.
- Customer acknowledges that SwervePay is not a financial or credit reporting institution. SwervePay is responsible only for providing data transmission to effect or direct certain payment authorizations for You and is not responsible for the results of any credit inquiry, the operation of websites of ISPs or Financial Institutions or the availability or performance of the Internet, or for any damages or costs You suffer or incur as a result of any instructions given, actions taken or omissions made by You, Your financial processor(s), Your Financial Institution or any ISP. IN NO EVENT WILL SWERVEPAY’S LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE) ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO SWERVEPAY BY YOU HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. IN NO EVENT WILL SWERVEPAY OR ITS LICENSORS HAVE ANY LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE) TO YOU OR ANY OTHER PARTY FOR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE REGARDING ANY LIMITED REMEDY. Notwithstanding the above, the limitations set forth above shall be enforceable to the maximum extent allowed by applicable law.
- YOU ACKNOWLEDGE THAT NEITHER SWERVEPAY NOR ITS LICENSORS HAVE REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY OR WITHOUT COMPROMISE OF THE SECURITY SYSTEMS RELATED TO THE SERVICES OR THAT ALL ERRORS WILL BE CORRECTED.
By Customer. You represent and warrant that You shall comply with all applicable privacy, consumer and other laws and regulations with respect to Your: (i) provision, use and disclosure of the Data, Cardholder information; (ii) dealings with the users, Cardholders or other parties providing the Data; and (iii) use of the Services. You also represent and warrant that that You are either (x) a legal resident of the United States, (y) a United States citizen, or (z) a business entity authorized to conduct business by the state in which it operates. The Services may only be used within the United States of America.
- Corporate and Other Entity Customers. If Customer is a corporation or corporate entity (which for purposes hereof shall include any limited liability company, limited partnership, limited liability partnership or other entity that limits the liability of its beneficial owners) You represent and warrant that: (i) You have all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (ii) all corporate action on the part of You, Your officers, board of directors, stockholders, partners or members necessary for the performance of Your obligations under this Agreement has been taken; (iii) this Agreement constitutes Your valid and legally binding obligation, enforceable against it in accordance with the terms hereof; (iv) You are in good standing in Your jurisdiction of incorporation or organization and are eligible to register and use the Services; (v) Your authorized representative(s) has read and understands the entire Agreement and, after doing so, You desire to be bound thereby, and You have been represented by counsel of Your own choosing; (vi) no representations of any kind or character have been made to induce You to execute and enter into any Agreement, these TOS, or to accept the Services; (vii) any sales transaction submitted by You will represent a bona fide sale by You; (viii) any sales transactions submitted by You will accurately describe the goods and/or services sold and delivered to a Customer; (ix) You will fulfill all of Your obligations to each customer for which You submit a transaction and will resolve any customer dispute or complaint directly with the purchaser; (x) except in the ordinary course of business, no sales transaction submitted by You through the Services will represent a sale to any principal, partner, proprietor, or owner of Your entity or any of Your other Affiliates; (xi) You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (xii) Your use of the Services will be in compliance with this Agreement; and (xiii) You agree to follow the applicable Card brand operating Rules and regulations.
- Individual or Non-Corporate Customers. If You are an individual or other non-corporate entity not covered by Section H.3(a) above, You represent that: (i) You are at least eighteen (18) years of age if an individual, or if an entity, all persons acting on Your behalf are at least eighteen (18) years of age; (ii) You are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (iii) the name You provided when You registered is Your name or business name under which You sell goods and services; (iv) each sales transaction submitted by You will represent a bona fide sale You made; (v) any sales transactions submitted by You will accurately describe the goods and/or services sold and delivered to a purchaser; (vi) You will fulfill all of Your obligations to each customer for which You submit a transaction and will resolve any customer dispute or complaint directly with the purchaser; (vii) You and all transactions initiated by You will comply with all federal, state, and local laws, rules, and regulations applicable to You and/or Your business, including any applicable tax laws and regulations; (viii) except in the ordinary course of business, no sales transaction submitted by You through the Services will represent a sale to any principal, partner, proprietor, or owner of Your entity or any of Your other Affiliates; (ix) You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (x) Your use of the Services will be in compliance with this Agreement; and (xi) You agree to follow the applicable Card Issuer operating Rules and regulations.
Indemnifications
Mutual Indemnifications. Either party to this Agreement (You, on the one hand, and SwervePay, on the other hand) will defend, indemnify, save and hold harmless the other party and the officers, directors, agents, Affiliates, distributors, franchisees and employees of the other party from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from the indemnifying party’s material breach of any duty, representation or warranty of any Customer Agreement or these TOS, as amended. An “Indemnified Party” party’s right to indemnification is conditioned upon the following: prompt written notice to the party obligated to provide indemnification (“Indemnifying Party”) of any claim, action or demand for which indemnity is sought; control of the investigation, preparation, defense and settlement thereof by the Indemnifying Party; and such reasonable cooperation by the indemnified part, at the Indemnifying Party’s request and expense, in the defense of the claim. The Indemnified Party shall have the right to participate in the defense of a claim by the indemnifying party with counsel of the Indemnified Party’s choice at the Indemnified Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry of any judgment that makes any admissions in the Indemnified Party’s name or imposes any liability upon the Indemnified Party.
Customer agrees not to use the Services in violation of any local, state or Federal laws, rules or regulations, or orders, including, but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”) and its related July 10, 2015 Omnibus Ruling, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its related Rules and Regulations, and agrees to indemnify, defend and hold SwervePay and any Affiliated Entity harmless from and against all Losses (defined below) that are incurred, suffered or paid, directly or indirectly, by any of them in connection with, arising out of or resulting from any claim alleging improper or illegal use of any of the Services provided to Customer or any of Customer’s clients by SwervePay or any Affiliated Entity, including but not limited to any claims arising from following the direction of Customer for communications to its clients as to frequency of sending messages by any medium, including but not limited to text, e-mail, facsimile or paper regarding any matter, including but not limited to past due sums, deposits for anticipated procedures, estimates of cost of procedures, appointment reminders, payment receipts or other communications. For purposes of this Section, indemnification of SwervePay and any Affiliated Entity includes, but is not limited to payment by Customer of any judgment, settlement, claim, penalties and costs, interest, reasonable attorneys’ fees and cost of defense, if SwervePay or any Affiliated Entity is named as a party to any action or suit related to delivery of communications to a Customer client or otherwise subject to this indemnification. In such an event, SwervePay and any Affiliated Entity shall have the option at any time of either being defended by Customer’s counsel or providing their own defense to the action (subject to regular monthly reimbursement from Customer for costs and fees incurred, regardless of the outcome of such action). For purposes of this Section: (i) “Losses” means any and all losses, liabilities, damages, penalties, obligations, awards, fines, deficiencies, demands, interest, costs and expenses (including reasonable attorneys’ fees, consultants’ fees and other professional fees and disbursements); and (ii) “Affiliated Entity” shall mean any “affiliate” of SwervePay (as such term is construed under Rule 405 promulgated under the Securities Act of 1933), as well as, without limitation, any independent contractor, business partner, solution extender, or service provider under contract with SwervePay that assists SwervePay in delivering any of the Services provided by SwervePay or any Affiliated Entity to Customer.
Term and Termination
Term; Renewal. These TOS and each applicable Customer Agreement shall become effective upon the later of (i) the date Customer accepts these TOS via Customer Agreement (the “Effective Date”), or (ii) the date You use any of the Services, if different; and will continue for the period indicated on an Exhibit A (“Initial Term”), unless terminated earlier or suspended according to the provisions of these TOS and the applicable Customer Agreement(s). Each Customer Agreement will thereafter automatically renew for successive twelve (12) month terms, unless either party gives the other party written or electronic notice, in accordance with the terms herein, of its intention not to renew the applicable Customer Agreement, at least thirty (30) days prior to the end of the then-current term or renewal term, unless termination is by SwervePay. Any renewal of Your Services is subject to our then-current terms and conditions, successful completion of any applicable authentication procedure, if any, and payment of all applicable Fees owing to us at the time of renewal. Additional payment terms may apply to the SwervePay Services You purchase, as set forth herein and in the applicable Schedules to this Agreement or any applicable Customer Agreement.
Suspension and Termination. Either party hereto may, at its option, and without notice, terminate the Services, effective immediately, should the other party hereto (i) admit in writing its inability to pay its debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (v) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (vi) have a decree entered against it by a court of competent jurisdiction appointing a receiver liquidate, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs.
- By Customer. Unless otherwise provided in a Customer Agreement, You may terminate the Services and any Customer Agreement upon prior thirty (30) days’ written notice to SwervePay by notifying SwervePay’s customer support electronically or in writing and following the instructions for cancellation prior to the end of the initial annual period or any annual renewal period. Subject to the above, SwervePay shall use commercially reasonable efforts to cancel the Services within seven (7) business days following such written notice from Customer. Customer shall be responsible for the payment of all fees due and payable through the effective date of termination. Termination requests for non-SwervePay, third-party services may not be made through SwervePay. Customer must instead contact such third-parties directly to cancel such services.
- By SwervePay. Notwithstanding the foregoing, SwervePay may suspend Customer’s access to the Services or terminate this Agreement as follows:
- Following ten (10) days’ prior electronic or written notice (such as an overdue invoice) if (a) Customer breaches the Agreement, (b) perpetrates fraud, (c) causes or fails to fix a security breach relating to the Services, (d) fails to comply with SwervePay’s best practices requirements for security management or to respond to an inquiry from SwervePay, concerning the accuracy or completeness of the information Customer is required to provide pursuant to this Agreement, (e) if SwervePay reasonably suspects fraudulent activity on Customer’s payment services account, (if such breach is not cured within such ten (10)-day period), (f) in the event that certain third-party licenses or access to third-party components of the Services are terminated, or (g) non-payment of invoice; or
- Immediately, without prior notice, if we reasonably believe: (a) Your breach compromises the security of the Services in any material fashion, (b) fraudulent Transactions are occurring on Your account, (c) Customer’s financial processor or Financial Institution with which Customer has a merchant account requires such termination or suspension or where continued breach of its Rules or contractual terms creates a risk of termination of such merchant account or of such entity doing business with SwervePay; or (d) You or a Transaction violates our Acceptable Use Policy or Rules.
Termination Date. The date upon which termination is effective shall be the “Termination Date.”
Effect of Termination.
- Cessation. SwervePay will cease providing the Services and cease charging Your Payment Method, if applicable, for any monthly, annual or bi-annual Service fees as of the expiration of the annual, bi-annual or monthly billing cycle in which the termination is effective. If termination is due to Your default hereunder, You shall bear all costs of such termination, including any reasonable costs SwervePay incurs in closing Your account and applicable termination Fees. You agree to pay any and all costs incurred by SwervePay in enforcing Your compliance with this Section. Upon termination, Your rights to use the Services, and any other rights granted hereunder, shall immediately cease, and You shall destroy any copy of the materials licensed to You hereunder and referenced herein except for such copies that are in electronic format and cannot be readily destroyed without undue cost or effort, which copies may be retained only for archival purposes and not for commercial use. Each party will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except that any termination of this Agreement will not relieve SwervePay or Customer from any liability or obligations arising prior to the Termination Date, which shall survive any termination of this Agreement. To the extent permitted by applicable law, You agree that upon termination for any reason, we may delete all information relating to Your use of the Service. Notwithstanding the foregoing, Your obligations to pay all fees due through the Termination Date and terms relating to covenants, indemnity, warranties or terms which by their nature are required to survive contract termination will survive any termination of this Agreement.
- Bundled Services. In addition to the terms set forth above, if You purchase Services which are sold together as part of a “bundled” package of services, any termination relating to such bundle will terminate all SwervePay Services included in such bundle. In such cases we may, in our sole discretion and subject to Your agreeing to be bound by the applicable agreement(s) and to pay the applicable fees, allow You to convert certain Services included in the bundled services to stand-alone Services. Notwithstanding the above, termination of the Services will terminate any add-on services.
- Reinstatement of Services. If Services are suspended or terminated by SwervePay due to lack of payment by Customer, reinstatement of Services shall be subject to Customer paying SwervePay (i) new set-up fees, at SwervePay’s then-current rates; and (ii) as applicable, all past due annual or monthly fees and Transaction Fees and all interest thereon at the Agreement Interest Rate (unless waived by SwervePay).
- Data Portability. After the Termination Date, SwervePay, upon written request from You, may, at it its option and only if practicable, provide Your new acquiring bank or payment service provider (“Data Recipient”), as applicable, with any available credit card information relating to Your Customers, subject to the following conditions: (i) You must provide us with proof that the Data Recipient is in compliance with the PCI-DSS requirements (level 1 PCI compliant) by giving us a certificate or report on compliance with the Association PCI-DSS requirements from a qualified provider and any other information reasonably requested by us; (ii) the transfer of such information is compliant with the latest version of the PCI-DSS requirements; and (iii) the transfer of such information is allowed under the applicable Card Issuer Rules, and any applicable laws, rules or regulations. You shall indemnify, defend, and hold harmless SwervePay from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorney’s fees) we suffer or incur arising out of or in connection with the transfer of any data to a Data Recipient.
Confidentiality
- Confidential Information. “Confidential Information” means any confidential, trade secret or proprietary information (which may be business, financial or technical information) disclosed by one party to the other under this Agreement that is marked confidential or if disclosed orally designated as confidential at the time of disclosure or that should be reasonably understood to be confidential. All source code and the terms of any Customer Agreement will be considered Confidential Information.
- Confidentiality Obligations. Each party (i) shall not disclose to any third-party or use any Confidential Information disclosed to it by the other except as expressly permitted by these TOS or a Customer Agreement and for purposes of performing the Services, and (ii) shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance. Each party further agrees to use the other party’s Confidential Information only for the purpose of its performance of the Services. In addition, the receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects which embody Confidential Information, and which are provided to the receiving party hereunder.
- Limitation of Confidentiality. The confidentiality obligations set forth in this Section (“Confidentiality Obligations”) above do not apply to information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information, (iv) is disclosed with the written approval of the disclosing party, or (v) is disclosed five (5) years from the effective date of termination or expiration of this Agreement.
- Exceptions to Confidentiality. Notwithstanding the Confidentiality Obligations set forth above, each party may disclose Confidential Information of the other party (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or (ii) on a “need-to-know” basis under an obligation of confidentiality substantially similar in all material respects to the Confidentiality Obligations to its legal counsel, accountants, contractors, consultants, banks and other current or potential financing sources (including investors).
Miscellaneous
- Third-Party Services. You may be made aware of services, products, offers and promotions provided by third-parties, and not by SwervePay (“Third-Party Services”). If You elect to use Third-Party Services, You are solely responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing any Third-Party Services. You authorize us to use and disclose Your contact information, including name and address, for the purpose of making the Third-Party Services You select available to You. You agree that the third-party is solely responsible for the performance of the Third-Party Services.
- Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder, except for Customer’s payment obligations hereunder, due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this Section shall give the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof, and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided, however, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, either party may immediately terminate the Agreement.
- Entire Agreement and Modification. Except for a valid Customer Agreement attached hereto or any other written agreement signed by both of us, the terms in this Agreement constitute the entire agreement between SwervePay and You regarding its subject matter and its terms supersede any prior or simultaneous agreement, terms, negotiations, whether written or oral, or whether established by custom, practice, policy or precedent, between the parties hereto. Except as otherwise provided for herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties herein. You acknowledge and agree that in the event a purchase order (“PO”) contains additional terms, provisions or language (“PO Terms”), those PO Terms shall be null and void unless accepted in writing by SwervePay pursuant to a Customer Agreement.
- Severability. In the event that any provision of these TOS or a Customer Agreement is unenforceable or invalid such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
- No Assignment. Customer may not assign any rights or obligations under these TOS, to the Services, or any Customer Agreement without the prior written consent of SwervePay. SwervePay may assign its rights, obligations or duties regarding the Services, these TOS or any Customer Agreement upon prior written notice to You.
- Governing Law and Jurisdiction. These TOS, the Services and each Customer Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without reference to its conflicts of laws principles. Each party consents to the exclusive venue and jurisdiction of the competent state and/or federal courts in Chicago, Illinois, for any dispute arising out of or related to this Agreement, with venue to be laid in the appropriate courthouse in Chicago, Illinois. The parties acknowledge and agree that this Agreement is made and performed in Chicago, Illinois. THE PARTIES HEREBY WAIVE ANY RIGHT TO JURY TRIAL WITH RESPECT TO ANY ACTION BROUGHT IN CONNECTION WITH THIS AGREEMENT. For avoidance of doubt, the application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
- Export Restrictions. You acknowledge and agree that You shall not import, export, or re-export directly or indirectly, any commodity, including Your products incorporating or using any SwervePay products or Services in violation of the laws and regulations of any applicable jurisdiction. The Services are subject to the U.S. export controls regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII). You will not export or re-export the Services, or portion thereof, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end user, or to any end user who You know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons.
- Notices. Except as otherwise expressly stated in this Agreement, all notices to SwervePay shall be in writing and delivered, via courier, commercial carrier or certified or registered mail (in each case with delivery confirmation), to SwervePay at its official corporate address, or via email (with proof of transmission) to the authorized representative identified in the applicable Customer Agreement. All notices to You shall be delivered to Your mailing address or e-mail address as provided by You in Your account information, as updated by You pursuant these TOS. Unless You choose to opt-out of receiving marketing notices, You authorize SwervePay to notify You as our customer, via commercial e-mails, telephone calls and other means of communication, of information that we deem is of potential interest to You, including without limitation communications describing upgrades, new products and services or other information pertaining to the Services or other SwervePay offerings relating to Internet security or to payment services. Notwithstanding the above, You shall not have the right to opt-out of service or support notices relating to the Services, including without limitation, notices of service modifications, security, performance issues or technical difficulties.
- Headings. The section headings appearing in these TOS or any Customer Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
- Independent Contractors. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
- Non-Disparagement; Publicity. In consideration of the Services and payments received therefor, neither party will disparage the other party or the other party’s trademarks, websites, products or services, or display any such items in a derogatory or negative manner on any website or in any public forum or press release. Unless otherwise stated herein, You shall not issue a press release or otherwise advertise, make a public statement or disclose to any third-party information pertaining to the parties’ relationship, the existence or terms of these TOS or any Customer Agreement, the Services and any underlying transactions between SwervePay and You, or referring to the other party in relation to Services without the SwervePay’s prior written approval.
- Costs, Legal Expenses. Except as expressly stated in a Customer Agreement, each party shall be solely responsible for the costs and expenses of performing its obligations hereunder. In the event of a dispute arising from or related to the Services, these TOS or a Customer Agreement, which results in litigation or any other proceeding (“Litigation”) the prevailing party in such Litigation shall recover from the other its costs, expenses and reasonable attorney’s fees in connection with such litigation or other proceeding.
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Effective April 21, 2020 to May 29, 2020
DownloadTable of Contents
SwervePay General Terms of Services for All Services
UNLESS OTHERWISE EXPRESSLY AGREED IN AN AUTHORIZED WRITTEN AGREEMENT, THESE TERMS OF SERVICE (“TOS”) APPLY TO ALL SERVICES DELIVERED BY OR RECEIVED FROM SWERVEPAY FOR ANY MERCHANT OR CUSTOMER. THESE TOS ARE INCORPORATED BY REFERENCE INTO EACH AND EVERY AGREEMENT BETWEEN SWERVEPAY AND EACH PURCHASE, CONSUMER, OR OTHER USER OF ITS SERVICES. IT CONSTITUTES A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND SWERVEPAY, LLC. YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE AGREEMENT. BY USING ANY OF OUR SERVICES, YOU ACCEPT THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, PROMPTLY DISCONTINUE USE OF THE SERVICES.
In these TOS, “Customer,” “You” and “Your” refer to each customer or sub-merchant and its designated agents, including Your administrative contact, employees, officers, directors, agents, Affiliates, successors and assigns, and “SwervePay,” “we,” “us” and “our” refer collectively to SwervePay, LLC, an Illinois limited liability company, and its Members, officers, directors, employees, agents, affiliates, subsidiaries (including, but not limited to SwervePay Auto, LLC, SwervePay Finance, LLC and SwervePay Health, LLC), successors and/or assigns. These TOS explains our obligations to You, and Your obligations to us in relation to the service(s) You purchase, use or otherwise acquire from us (“Services”). By using any Services, You agree to establish an account with us for such Services. When You use Your account or permit someone else to use Your account to purchase or otherwise acquire access to any SwervePay Services or to modify or cancel Your Services (even if we were not notified of such authorization), this Agreement as amended covers any such service or actions. Additionally, You agree that the administrative contact for any Services provided to You is Your agent with full authority to act on Your behalf with respect to such Services, as permitted by the Services and related documentation, including (but not limited to) the authority to terminate, transfer (where transfer is permitted by the Agreement), or modify such Services, or purchase additional services. Any acceptance of Your application(s) or requests for our Services and the performance of our Services will be deemed to occur at our offices in Chicago, Illinois.
Important Notice Concerning Bundled Services: If You purchase separate SwervePay Services that are sold together as a “bundled” package, as opposed to Your purchasing such services separately, termination of any part of the Services may result in termination of all SwervePay Services provided as part of the bundled package unless arrangements are made to pay for the Services separately.
Definitions
“Affiliate(s)” means a person or entity controlled by or under common control with another person or entity, including, without limitation, as the term “affiliate” is construed under Rule 405 promulgated under the Securities Act of 1933 as amended.
“Customer Agreement(s)” means any agreement for Services between SwervePay and a Customer, each of which shall and hereby does incorporate these TOS by reference except as otherwise expressly agreed in such agreement.
“Card Issuer” means, as applicable, any of Visa, MasterCard, Discover, American Express, any ATM or debit or gift card network, or any other financial service card organizations, with two or more of such organizations hereinafter sometimes collectively referred to as “Card Issuers” and as to each Card Issuer, each such card issued by it, a “Card” and each holder or owner of a Card being a “Cardholder” or “Customer.”
“Card Organization Rules” means the rules imposed from time to time by each Card Issuer intended to govern the usage of its network and services.
“Chargeback” means a challenge to a payment that a Customer or Cardholder files directly with his, her or its Card Issuer, bank or other similar party.
“Customer Data” means any information received from a Cardholder or Customer used in connection with the Services.
“Financial Institution” means banks or financial institutions having business relationships with one or more Financial Processors that have agreed to evaluate and provide merchant accounts and payment authorization services to merchants.
“Financial Processor” means an entity with which SwervePay has established a relationship that performs the back-end authorization and processing of Transactions between the Customer’s Financial Institution and the Cardholder’s bank.
“Services” means any services used by Customer, including merchant services, payment services, and services involving Software and any add-on or additional services requested or specifically described in an agreement. Current descriptions of SwervePay’s Services are available at www.swervepay.com.
“Software” means the object code version of SwervePay’s client software, HTML code, application programming interfaces (“APIs”), related documentation and other client software or code which SwervePay may provide to Customer, including updates, to enable SwervePay to provide the Services to Customer. Unless otherwise specified, Software shall not include any source code. The Software is proprietary to SwervePay and is licensed to Customer pursuant to these TOS, and subject strictly to those terms and restrictions.
“Management Web Site” means SwervePay’s online account management tools for Your use of the Services.
“Swipe Device” means a device, which if purchased or required for Your use of the Services, is capable of receiving information from a Card for payment processing, including via magnetic swipe, chip-reader, or other means. Once Your Customer Account is approved, and if purchased or required for Your account, a Swipe Device will be sent to You or acquired by You for use at the address provided. SwervePay does not warrant that the swipe device or the Services will be compatible with Your computer, mobile Device or third-party carrier. Your use of the Swipe Device and the Services may also be subject to the terms of Your mobile device manufacturer and Your carrier. We shall not be responsible for any damages caused by defects associated with any Swipe Devices used by You with respect to Your business or any hacking, or other unauthorized use, of any of such Swipe Devices.
“Transaction” means a transfer of funds between You and a third-party using the Services, including information related to the purchase of goods and services from Customer by a third-party, such as any of its customers, clients, patients, or consumers of its products and/or services. Specifically, a Transaction is an authorization, delayed capture, sale, void, voice authorization or credit data transmission between SwervePay and its back-end processors in connection with the Services.
Customer Obligations
General Service Requirements. Customer shall be solely responsible for the following:
- Accuracy of Information Provided. You must provide accurate and complete information to us when applying for Your Customer Account. If Your request to open a Customer Account is approved, we may request additional information from You at any time. You shall maintain and promptly update such information if it should change.
- Customer Websites. Customer is responsible for establishing, hosting and maintenance of its website(s) and its connection to the internet (“Customer Website(s)”), fulfilling all orders for products and services sold by merchant to its users on the merchant website(s) or otherwise, including without limitation transmitting merchant’s registration information and transaction data to SwervePay servers or via the SwervePay Management Website and ensuring that any data stored or transmitted by merchant in conjunction with the Services and for enrollment for the Services is accurate, complete and in the form as requested by SwervePay, is securely collected and is not corrupted due to merchant’s systems. Customer is also responsible for reviewing the transactions in its account on a regular basis and notifying SwervePay promptly of unauthorized activity through its account.
- Banking. Customer is responsible for establishing and maintaining a commercial banking relationship and account with one or more Financial Institutions, for purposes of receiving the Services (“Account”). The terms of such relationship shall be determined solely by Customer and the Financial Institution.
- Access. Customer is responsible for keeping its access credentials, including usernames, user IDs, passwords and the like, confidential. Customer shall notify SwervePay immediately upon learning of any unauthorized use of its username or password. Customer shall be solely responsible for (i) updating its passwords for access to the Services periodically, and (ii) creating passwords that are reasonably “strong” under the circumstances, in accordance with SwervePay’s requirements. A “strong” password is at least six characters long, does not contain all or part of the user’s account name, and contains at least three of the four following categories of characters: uppercase characters, lowercase characters, base 10 digits, and symbols found on the keyboard (such as !, @, #). Strong passwords should be generated in such a way that knowledge of one does not lead to knowledge of another.
- Business Practices. Customer is responsible for maintaining commercially reasonable business practices in conjunction with use of the Services, collecting, storing and transmitting its customer data in a secure manner and protecting the privacy of its customer data. Customer shall comply with SwervePay’s requests for reasonable action on Customer’s part, to the extent necessary, to maintain security and integrity of the Services.
- Computing. Customer is responsible for updating to the most current Software version and security updates and patches necessary to properly operate the Services and keeping all Customer enrollment and payment information current and updated on the Management Web Site; and
- Compliance. Customer agrees, and hereby represents and warrants that Customer shall (a) use the Services in accordance with the applicable user guides and other documentation provided by SwervePay from time to time; and (b) not use or permit others to use information obtained through the use of the Services for any purpose other than in conjunction with the Services and in a manner described in the documentation for the Services.
Honoring Cards. Whenever possible, You will identify the person presenting a Card and purporting to be a person authorized to use a Card and check the expiration date and signature on each Card. You will not honor a Card if the Card has expired or if You determine or suspect that the account number on the Card does not match the account number on the Card’s magnetic stripe or the account number is listed on a current Electronic Warning Bulletin file. You are responsible for ensuring that the Cardholder understands that You are responsible for the transaction, including the goods or services that are the subject of the transaction. In addition, You are solely responsible for all customer service issues relating to Your goods or services, including pricing, fulfillment, order cancellation, returns, refunds and adjustments, warranty, and support. You will not add any amount to the posted price of goods or services You offer as a condition of paying with a Card that is not consistent with the Card Issuer Rules and laws. You will properly disclose to each Cardholder that is or may be used in connection with any of the transactions subject to this Agreement, at the time of transaction, any limitation You have on accepting returned merchandise. Your return policy must be in accordance with the Card Issuer Rules. If Your refund policy prohibits returns or is unsatisfactory to the Cardholder, You may still receive a Chargeback relating to such transactions. You agree to make a written receipt available to the Cardholder for any transaction. You may provide the Cardholder the option to decline a written receipt. You may also offer electronic receipts delivered by SMS or e-mail to the Cardholder.
Returns. You agree to process returns of, and provide refunds and adjustments for, Your goods or services through Your Customer Account in accordance with these TOS, any Customer Agreement, each Vendor Processor’s Rules and applicable Card Issuer Rules.
Restrictions on Use of Services. In connection with the Services, You will comply with all Payment Card Industry Data Security Standard (“PCI-DSS”) requirements and consent to our Acceptable Use Policy, which is available at www.swervepay.com: You also agree that You will (a) not send SMS receipts to customers who have expressly refused delivery of a receipt in that manner; (b) comply with all applicable laws and regulations and all requirements of: (i) Card Issuers applicable to merchants; and (ii) all SwervePay Processors; (c) maintain the security of account login information You receive as part of Your use of the Services; (d) if You lose Your computer or mobile device, or You have reason to believe that Your account is no longer secure, You will immediately notify us; (e) not accept payments in connection with any illegal activity, or any activity that is inconsistent with Your type of business or any activity prohibited by the rules of Your Card Issuer.
Compliance With Law. You may only use the Services in compliance with all laws, rules, and regulations applicable to the use of the Services. We may choose not to authorize or settle any transaction submitted to SwervePay if we believe the transaction is in violation of these TOS, the applicable Customer Agreement(s) or may cause harm to You, us, or our Processors.
Processing Errors. You will promptly notify us of any errors within ten (10) days after the date of the asserted error or missing transaction(s). If You do not notify us within the ten (10)-day period, we shall not be liable for, nor obligated to investigate, correct, such asserted error and You agree that all claims related to such error are waived. If we discover processing errors, we will attempt to rectify those processing errors efficiently.
Wireless Service Providers. The Services may utilize SMS messages delivered through wireless service providers, such as AT&T, Sprint, Verizon, etc. You acknowledge that any SMS message goes through Your and the message recipient’s wireless service provider’s systems. The privacy statement of each associated wireless service provider applies as the message passes through those systems. As a requirement to permit usage of SMS systems some wireless service providers may require that we disclose to them information about users of the Services and the nature of business to be conducted. In this situation the information will be used to ensure legitimate use of the SMS systems and not for marketing purposes. You acknowledge and agree that we may provide information about You to wireless service providers as described above. You may upload or enter certain data from Your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You may be made aware of or offered services, features, products, applications, online communities, or promotions provided by us or our affiliates. Installing any of our applications or Software grants us the right to send the identifiers for Your mobile device and Your Customers to third-parties for the use of advertising purposes. You are responsible for securely managing access to Your data and to the Services. You agree to be bound by our privacy policy, as it may be amended from time to time in accordance with its terms or these TOS.
SwervePay's Obligations
Services. Subject to the terms in this Agreement, SwervePay agrees to (i) provide to Customer the Services for which Customer enrolls and pays the applicable fees, either upon request or pursuant to a Customer Agreement, including without limitation the transmission of Transaction information to Financial Processors, and (ii) provide Customer with access to standardized reports regarding Customer’s Transactions processed using the Services and certain reporting tools to assist Customer in accounting activities. SwervePay hereby grants to Customer the right to access and use the Services in accordance with these TOS and any applicable Customer Agreement. SwervePay is not bound by nor should Customer rely on any representation by (i) any agent, representative or employee of any third-party referring or relating to the Services, including Your application or request for them; or in (ii) information posted on our Website of a general informational nature.
Modification of Terms; Changes to Services. Except as otherwise provided in a Customer Agreement, Customer agrees that SwervePay may: (a) revise, amend, update or otherwise change these TOS, including without limitation modifying the service fees or payment terms; and/or (b) revise, amend, update or otherwise change or terminate any part of the Services at any time. Any such revision or change will be binding and effective either, at SwervePay’s sole discretion, thirty (30) days after posting a revision of these TOS on the SwervePay Management Web Site, or upon electronic or written notification to You. You agree to periodically review the Management Web Site, including the current version of this Agreement available on the Management Web Site, to be aware of any such revisions. If You do not agree with any revision to the Agreement, You may terminate this Agreement at any time by providing us with thirty (30) days’ prior written notice. Notice of Your termination will be effective thirty (30) calendar days after receipt and processing by us. Any fees paid by You if You terminate Your Agreement with us are nonrefundable, except as otherwise expressly stated herein, but You will not incur any additional fees due to such termination. By continuing to use SwervePay Services after any revision to this Agreement or change in Services, You agree to abide by and be bound by any such revisions or changes. No non-executive employee, contractor, agent or representative of SwervePay is authorized to alter or amend the terms and conditions of these TOS.
Secure Transactions. SwervePay has implemented and will maintain security systems for the transmission of Customer’s Transactions, consisting of encryption and “firewall” technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet. SwervePay does not guarantee the security of the Services or Transaction data, and SwervePay will not be responsible in the event of any infiltration of its security systems or other breach of Security of Your data or systems or Customer data or systems, provided that SwervePay has used commercially reasonable efforts to prevent any such infiltration. Customer further acknowledges and agrees that Customer, and not SwervePay, is responsible for the security of Transaction data or information or any other information stored on Customer’s servers, and that SwervePay is not responsible for any other party’s servers (other than subcontractors of SwervePay solely to the extent SwervePay is liable for its own actions hereunder).
Technical Support for Services. SwervePay shall provide the technical support services to Customer, if any, pursuant the support package, if any, selected by Customer in a Customer Agreement. SwervePay’s then-current, standard technical support descriptions for Services shall be available at www.swervepay.com.
Proprietary Rights, Licenses, Restrictions
SwervePay IP. Except as otherwise set forth herein, all right, title and interest in and to: (i) all registered and unregistered trademarks, service marks and logos; (ii) all patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) all trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) all registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property (“IP”), proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services identified herein (“SwervePay IP”) are owned by SwervePay Services or its licensors, and You agree to make no claim of interest in or ownership of any such SwervePay IP. You acknowledge that no title to the SwervePay IP is transferred to You, and that You do not obtain any rights, express or implied, in the SwervePay Services or its licensors’ services, other than the rights expressly granted in this Agreement. To the extent that You create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to You, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by SwervePay and all existing and future copyright and other right, title and interest in and to each such Derivative Work, are assigned to, and shall automatically vest in, SwervePay, and to cooperate with SwervePay in connection with any actions by it to establish its rights in the same. SwervePay shall have no obligation to grant You any right in any such Derivative Work. Except to the extent permitted by applicable law, Customer shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Services or any components thereof, or otherwise apply any procedure or process to the Services or components thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings or any algorithm, data, process, procedure or other information contained therein. Customer shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Services or components thereof.
Limited License for Software and Services. Unless otherwise expressly provided in a Customer Agreement, SwervePay grants Customer a personal, limited, non-exclusive, non-transferable license, during such time that You satisfy the conditions set forth in each of Your Customer Agreement(s) and these TOS, to electronically access and use the Services solely for the purpose described herein and in any Customer Agreement. Except as expressly allowed herein, a Customer Agreement or by applicable law, You are not permitted to do any of the following and shall not allow any third-party to do any of the following: (i) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way any components of the Services; (ii) permit any third-party to benefit from the use or functionality of the Services via a rental, lease, timesharing, service bureau, or other arrangement; (iii) transfer any of the rights granted to You under any Customer Agreement or these TOS; (iv) work around any technical limitations in the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer the any component of Services except as otherwise permitted by applicable law; (v) perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or the use of the Services by our other licensees or customers; or (vi) export the Services, directly or indirectly. We reserve all rights not expressly granted to You in these TOS or a Customer Agreement. Components of the Services are protected by intellectual property laws, including international, U.S. federal and state laws. SwervePay and its licensors, collectively (as their respective interests may appear) own the title, copyright, and other worldwide intellectual property rights in the Services and all copies of the Services and any Software. Neither any Customer Agreement nor these TOS: (i) grant You any rights to our trademarks or service marks or (ii) limit any rights that we may have under trade secret, copyright, patent or other laws, domestic or abroad.
Customer Data. All “Customer Data” provided by You or any of Your Customers in the course of a Transaction shall be owned by You or Your Customer (subject to Your right to make the grants in this Section 3). You hereby grant us a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display the Customer Data for the purposes of (i) providing and improving the Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymised and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and (iv) any other purpose for which consent has been provided by the Customer.
Privacy and Security
SwervePay Privacy Polices. Our privacy statement for the Services is located on our Website at https://www.SwervePay.com and is incorporated herein by reference, as it is applicable to the Services and each Customer Agreement. The privacy statement sets forth Your and our rights and responsibilities with regard to Your personal information. You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Website. You agree to monitor our Website periodically to review such revisions. By using our Services after modifications to the privacy statement, You have agreed to these modifications. You acknowledge that if You do not agree to any such modification, You may terminate this Agreement.
Cardholder Information. You shall keep all Customer Data confidential and secure. You shall not disclose to any third-party any Cardholder account information or other personal information except in connection with the Services and in accordance with the Card Organization Rules or applicable law (including but not limited as required under the Health Insurance Portability and Accountability Act or “HIPAA”). You must keep all Cardholder information in a secure manner to prevent disclosure to unauthorized parties. You may not disclose or distribute any such information to a third-party or use the information for marketing purposes unless You receive the express consent of the user.
Use of Data. Customer acknowledges and agrees that in the course of providing the Services, SwervePay will capture certain transaction and user information (collectively, the “Data”). Customer agrees to provide to SwervePay, and SwervePay shall capture, only the Data that is required by the Software and is necessary for SwervePay to provide the Services. SwervePay agrees to use Data in its personally identifiable form only as necessary to complete the requested transaction. SwervePay shall not disclose Data to third-parties or use the Data, except that SwervePay shall have the rights: (i) to use the Data as necessary to perform the Services pursuant to these TOS or contemplated in a Customer Agreement (including distributing the Data to third-parties providing services requested by Customer); (ii) to maintain the Data as long as necessary, as required by law or as used internally for record keeping, internal reporting, and support purposes; (iii) to compile and disclose Data in the aggregate where individual merchant Data is not identifiable, including without limitation, calculating merchant averages by region or industry; and (iv) to provide the Data as required by law or court order, or to defend SwervePay’s rights in a legal dispute. You represent and warrant that You have provided notice to, and obtained consent from, any third-party individuals whose personal Data You supply to us as part of our services with regard to: (i) the purposes for which such third-party’s personal Data has been collected, (ii) the intended recipients or categories of recipients of the third-party’s personal Data, (iii) which parts of the third-party’s Data are obligatory and which parts, if any, are voluntary; and (iv) how the third-party can access and, if necessary, rectify the data You hold about them. You further agree to provide such notice and obtain such consent with regard to any third-party personal Data You supply to us in the future. We are not responsible for any consequences resulting from Your failure to provide notice or receive consent from such persons or entities nor for Your providing outdated, incomplete or inaccurate information.
PCI-DSS Requirements. While SwervePay and/or our Affiliates use security and encryption features to ensure the security and safety of Your personal information and that of Your Customers, SwervePay cannot absolutely guarantee the security of Your personal information from unauthorized access, loss or disclosure by third-parties. To ensure the highest level of security You agree to comply with our Acceptable Use Policy, including the PCI-DSS requirements and You represent and warrant that, while using any Services: (a) You are, and shall remain, in full compliance with all laws, statutes and federal and/or state regulations, as well as the Rules as may be applicable to You, Your business and any Card transaction; (c) You (and any outside agent that You may utilize to submit Transactions to SwervePay) comply and will comply with all our Acceptable Use Policy and all PCI-DSS requirements and You hereby agree to pay any fines and penalties that may be assessed by any Card Issuer as a result of Your non-compliance with PCI-DSS requirements, any data breaches, or by Your failure to accurately validate its compliance. You will review and monitor the requirements at http://www.visa.com/CISP, and http://www.pcisecuritystandards.org in order to determine the timeframes and mandates for compliance under PCI-DSS requirements. Your obligations to do so continue through the later of (y) the Termination Date or the (z) date You cease using all Services. You acknowledge and understand that You may be prohibited from participating in Card Issuer programs if it is determined that You are non-compliant.
Fees, Accounts and Payment Terms
Fees. As consideration for the Services, You agree to pay SwervePay the applicable service(s) fees set forth in an Exhibit A, or as otherwise provided by SwervePay in each Customer Agreement in force and effect, at the time of Your selection (and as it may be amended from time to time), or, if applicable, upon receipt of Your invoice from SwervePay. Should Customer wish to add Services, such addition shall be made by an additional Exhibit A either by written agreement signed by SwervePay and Customer or by e-mail from one party to the other acknowledged by reply e-mail. Fixed monthly fees are charged monthly in advance. Charges that are based on usage, such as text messages or transaction fees, are billed as soon as practicable following the end of the month. No objection to charges will be valid if not provided by notice to SwervePay within thirty (30) days of the date of the applicable invoice or charge by SwervePay. SwervePay will investigate such charges, which shall remain due and payable (and not subject to set off or deduction) until such point in time, if any, that SwervePay advises Customer to the contrary. Customer agrees to an automatic debit to ACH to settle billings; there shall be no separate invoice sent. SwervePay shall have the right from time to time to increase the prices called for on Exhibit A on thirty (30) days’ prior notice to Customer (either by e-mail or written notice), which shall be effective should Customer not object to such price increase within such thirty (30) day period; should customer object to such price increase on a timely basis, then at SwervePay’s option, to be delivered in writing or by e-mail, such price increase shall be rescinded retroactive the original notification, subject to SwervePay’s right to terminate this Agreement as set forth below.
Payments; Refunds; Pre-Payments. You are solely responsible for the credit card or Direct Debit (“Payment Method”) account information You provide to SwervePay and must promptly inform SwervePay of any changes thereto (e.g., change of expiration date or account number). Changes should be communicated to SwervePay by entering the updated information through the SwervePay tools or contacting SwervePay customer support. All payments shall be made in U.S. dollars. All fees are non-refundable unless otherwise explicitly stated in this Agreement. If we do issue a refund, we will do so via the Payment Method used by You to pay for the Services being refunded. For additional services or add-on services, Customer shall either prepay SwervePay’s then-current annual prepaid fees, if available, or pay the then-current monthly fees for such services, in accordance with the applicable Customer Agreement. If Customer uses SwervePay add-on services that are subject to additional standard fees that are not prepaid at enrollment, then SwervePay shall either immediately charge Customer’s credit card or debit Customer’s DDR account, as applicable, for SwervePay’s then-current fees for such services or invoice Customer for such additional standard fees, and Customer shall pay such invoice immediately.
Taxes. Customer is solely responsible for collecting, reporting and remitting any taxes required to be collected, paid or withheld in connection with the Services (“Taxes”). SwervePay is not responsible to determine whether or not Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. If in a given calendar year You receive (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Vendor or its Vendor processor(s) is authorized to report annually to the Internal Revenue Service (“IRS”), as required by law, Your name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments You receive in a calendar year, and the total dollar amount of the payments You receive for each month in a calendar year. You agree to pay all Taxes (including value added, sales and other taxes (other than taxes based on SwervePay’s income)) related to the Services or payments made by You hereunder. All payments due to SwervePay shall be made without any deduction or withholding on account of any tax, duty, charge or penalty, except as required by law, in which case, the sum payable by a party in respect of which such deduction or withholding is to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, SwervePay receives and retains (free from any liability in respect thereof) a net sum equal to the sum it would have received but for such deduction or withholding being required. Set up fees, if any, will become payable on the applicable effective date for the applicable SwervePay Services. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less (the “Agreement Interest Rate”). Customer hereby authorizes us to charge Customer’s Payment Method for the fees due for the Services, and Customer shall provide to SwervePay proper authorization for purposes of allowing SwervePay to debit the applicable Customer account to collect fees due under these TOS and each Customer Agreement. All fees owed by Customer to third-parties (for example, Financial Institutions, Financial Processors and merchant account providers), are Customer’s sole responsibility and are not covered by the Services.
Overcharge Fee. Excluding merchant services, in the event You exceed the Transaction limit permitted for the applicable Services as provided in any Customer Agreement (“Excess Transaction”) in any month, Customer may be charged a monthly transaction fee (“Monthly Overcharge Fee”) to be determined by multiplying each Excess Transaction processed in that month by the corresponding Service’s Transaction Fee. The Monthly Excess Transaction Fee shall be invoiced or debited in accordance with the terms for Fees above.
Chargebacks. These terms apply to Chargebacks for merchant services:
- The amount of a transaction may be reversed or charged back to Your Customer Account (each a “Chargeback”) for reasons, including, but not limited to, any one of the following: (i) an invalid Card account is submitted by You; (ii) neither the Cardholder nor a person authorized by the Cardholder received the goods or services requested; (iii) the Cardholder disputes the quality of the goods or services received; (iv) the Cardholder never received a credit for a returned item or a cancelled order; (v) the Cardholder was charged incorrectly; (vi) the authorization code is invalid; (vii) the Card was expired or not effective; (viii) the transaction is disputed; (ix) the transaction is reversed by the Card Issuer, our Processor, or a financial institution for any reason; or (x) the transaction was not authorized.
- For any transaction that results in a Chargeback, we may withhold or cause to be withheld the Chargeback amount in the Reserve Account. You may be subject to a chargeback on sales for a minimum period of one hundred eighty (180) days from the date the sale was entered into the processing system. We may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by each applicable Vendor Processor from Your Customer Account, Your Reserve Account, if any, any proceeds due to You, or Your bank account. If You have pending Chargebacks or we reasonably believe that a Chargeback is likely, we may withhold or delay payments from Your Customer Account for the later of: (i) two hundred seventy (270) days following the Termination Date; (ii) one hundred eighty (180) days from Your last Chargeback; or (iii) thirty (30) days following Your delivery of written notification disputing the Chargeback in question and the basis therefor with appropriate documentation in accordance herewith. You agree to respond to all Chargebacks promptly. 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 together with interest computed at the Agreement Interest Rate on any unpaid Chargeback amounts You owe to us from time to time. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of SwervePay related to any efforts to collect any Customer Account deficit balances (including, but not limited to, Chargeback amounts) which remain unpaid by for more than thirty (30) days.
Customer Accounts.
- Deposit of Funds. Upon validation of Your Customer Account, Vendor or Vendor’s Processor(s) will deposit to Your Customer Account the amounts actually received by us for completed transactions submitted through the Services at the end of every business day unless otherwise agreed in Your Customer Agreement. Payouts to Your bank account will normally register within two (2) to three (3) business days. Each Transaction will be considered complete when SwervePay has received the funds and when such funds have been accepted by the designated bank or financial institution. We shall have the right to deduct from Your Sub-Customer Account: (i) following the end of each month during the term of this Agreement any Fees owing from You to us or any of our Processors; and (ii) immediately at any time, any Chargebacks, penalties or other Fees owing from You to us or any of our Processors. Should we need to conduct an investigation or resolve any dispute related to Your Sub-Customer Account (including but not limited to issues around possible prohibited transactions or other breaches of these TOS or any Customer Agreement, or applicable SwervePay, Processor or Card Issuer Rules), we may defer payout or restrict access to Your funds for as long as we deem necessary. We also may defer payout or restrict access to Your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
- Customer Account Activity. You are responsible for monitoring Your transactions and ensuring that our payments to You are correct. You agree to contact us immediately if You discover or become aware of an error or an unauthorized transaction on Your Customer Account. You must notify us of any errors in payments made to You within thirty (30) days of the error or unauthorized transaction. Your failure to notify us of any such errors within the applicable thirty (30)-day period will constitute a waiver of any right or claim to amounts owed to You. Further, You are responsible for reconciling all transactions with Your Customer Account and keeping permanent records of such transactions.
- Reserve Accounts. For the purpose of providing a source of funds to pay damages which SwervePay or our Processors may potentially suffer in connection with providing You Services, and to pay Fees, fines, Chargebacks or other amounts You may owe or be assessed by any processor, a separate reserve account (the “Reserve Account”) may be established from time to time by You, us or any of our Processors to secure Your current and/or future potential obligations as reasonably determined us or our Processor. The Reserve Account will be in an amount as reasonably determined to protect the present or future interests and may be raised, reduced or removed at any time, in our or our Processor’s sole discretion. If there are not sufficient funds in Your Reserve Account, You grant us the right of recoupment and set-off and may fund the Reserve Account from any funding source associated with Your Customer Account, including but not limited to any funds due to You for the Services or under any Customer Agreement or available in Your bank account. If, in our opinion, the Personal Property Securities Act 2009 enables us to improve our security interest over the Reserve Account, You agree to do all things necessary, including obtaining the appropriate authorizations and executing any document to effect such improvement.
Representations and Warranties; Disclaimers; Limitations of Liability
By SwervePay. SwervePay represents and warrants that: (a) it has all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (b) all corporate action on the part of SwervePay, its officers, board of directors and stockholders necessary for the performance of its obligations under this Agreement has been taken.
Limitations of Liability.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN A SERVICES AGREEMENT (AS RELATES TO THE SUBJECT MATTER THEREOF), OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, SWERVEPAY AND ITS LICENSORS, AS APPLICABLE, EXPRESSLY DISCLAIM EACH WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES OR SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- SWERVEPAY’S LIABILITY TO YOU RELATING TO THE SERVICES, WHETHER ARISING UNDER THESE TOS, A SERVICES AGREEMENT, OR OTHERWISE, IS LIMITED, AT SWERVEPAY’S OPTION, TO (a) REFUNDING THE PRICE OF THE SERVICES IN RESPECT OF WHICH THE LIABILITY AROSE OR (b) TO PROVIDING, REPLACING OR REPAIRING THOSE SERVICES, OR (c) PROVIDING THOSE SERVICES AGAIN IN A MANNER REASONABLY CALCULATED TO AVOID FUTURE LIABILITY.
- Customer acknowledges that SwervePay is not a financial or credit reporting institution. SwervePay is responsible only for providing data transmission to effect or direct certain payment authorizations for You and is not responsible for the results of any credit inquiry, the operation of websites of ISPs or Financial Institutions or the availability or performance of the Internet, or for any damages or costs You suffer or incur as a result of any instructions given, actions taken or omissions made by You, Your financial processor(s), Your Financial Institution or any ISP. IN NO EVENT WILL SWERVEPAY’S LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE) ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO SWERVEPAY BY YOU HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. IN NO EVENT WILL SWERVEPAY OR ITS LICENSORS HAVE ANY LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE) TO YOU OR ANY OTHER PARTY FOR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE REGARDING ANY LIMITED REMEDY. Notwithstanding the above, the limitations set forth above shall be enforceable to the maximum extent allowed by applicable law.
- YOU ACKNOWLEDGE THAT NEITHER SWERVEPAY NOR ITS LICENSORS HAVE REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY OR WITHOUT COMPROMISE OF THE SECURITY SYSTEMS RELATED TO THE SERVICES OR THAT ALL ERRORS WILL BE CORRECTED.
By Customer. You represent and warrant that You shall comply with all applicable privacy, consumer and other laws and regulations with respect to Your: (i) provision, use and disclosure of the Data, Cardholder information; (ii) dealings with the users, Cardholders or other parties providing the Data; and (iii) use of the Services. You also represent and warrant that that You are either (x) a legal resident of the United States, (y) a United States citizen, or (z) a business entity authorized to conduct business by the state in which it operates. The Services may only be used within the United States of America.
- Corporate and Other Entity Customers. If Customer is a corporation or corporate entity (which for purposes hereof shall include any limited liability company, limited partnership, limited liability partnership or other entity that limits the liability of its beneficial owners) You represent and warrant that: (i) You have all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (ii) all corporate action on the part of You, Your officers, board of directors, stockholders, partners or members necessary for the performance of Your obligations under this Agreement has been taken; (iii) this Agreement constitutes Your valid and legally binding obligation, enforceable against it in accordance with the terms hereof; (iv) You are in good standing in Your jurisdiction of incorporation or organization and are eligible to register and use the Services; (v) Your authorized representative(s) has read and understands the entire Agreement and, after doing so, You desire to be bound thereby, and You have been represented by counsel of Your own choosing; (vi) no representations of any kind or character have been made to induce You to execute and enter into any Agreement, these TOS, or to accept the Services; (vii) any sales transaction submitted by You will represent a bona fide sale by You; (viii) any sales transactions submitted by You will accurately describe the goods and/or services sold and delivered to a Customer; (ix) You will fulfill all of Your obligations to each customer for which You submit a transaction and will resolve any customer dispute or complaint directly with the purchaser; (x) except in the ordinary course of business, no sales transaction submitted by You through the Services will represent a sale to any principal, partner, proprietor, or owner of Your entity or any of Your other Affiliates; (xi) You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (xii) Your use of the Services will be in compliance with this Agreement; and (xiii) You agree to follow the applicable Card brand operating Rules and regulations.
- Individual or Non-Corporate Customers. If You are an individual or other non-corporate entity not covered by Section H.3(a) above, You represent that: (i) You are at least eighteen (18) years of age if an individual, or if an entity, all persons acting on Your behalf are at least eighteen (18) years of age; (ii) You are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (iii) the name You provided when You registered is Your name or business name under which You sell goods and services; (iv) each sales transaction submitted by You will represent a bona fide sale You made; (v) any sales transactions submitted by You will accurately describe the goods and/or services sold and delivered to a purchaser; (vi) You will fulfill all of Your obligations to each customer for which You submit a transaction and will resolve any customer dispute or complaint directly with the purchaser; (vii) You and all transactions initiated by You will comply with all federal, state, and local laws, rules, and regulations applicable to You and/or Your business, including any applicable tax laws and regulations; (viii) except in the ordinary course of business, no sales transaction submitted by You through the Services will represent a sale to any principal, partner, proprietor, or owner of Your entity or any of Your other Affiliates; (ix) You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (x) Your use of the Services will be in compliance with this Agreement; and (xi) You agree to follow the applicable Card Issuer operating Rules and regulations.
Indemnifications
Mutual Indemnifications. Either party to this Agreement (You, on the one hand, and SwervePay, on the other hand) will defend, indemnify, save and hold harmless the other party and the officers, directors, agents, Affiliates, distributors, franchisees and employees of the other party from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from the indemnifying party’s material breach of any duty, representation or warranty of any Customer Agreement or these TOS, as amended. An “Indemnified Party” party’s right to indemnification is conditioned upon the following: prompt written notice to the party obligated to provide indemnification (“Indemnifying Party”) of any claim, action or demand for which indemnity is sought; control of the investigation, preparation, defense and settlement thereof by the Indemnifying Party; and such reasonable cooperation by the indemnified part, at the Indemnifying Party’s request and expense, in the defense of the claim. The Indemnified Party shall have the right to participate in the defense of a claim by the indemnifying party with counsel of the Indemnified Party’s choice at the Indemnified Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry of any judgment that makes any admissions in the Indemnified Party’s name or imposes any liability upon the Indemnified Party.
Customer agrees not to use the Services in violation of any local, state or Federal laws, rules or regulations, or orders, including, but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”) and its related July 10, 2015 Omnibus Ruling, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its related Rules and Regulations, and agrees to indemnify, defend and hold SwervePay and any Affiliated Entity harmless from and against all Losses (defined below) that are incurred, suffered or paid, directly or indirectly, by any of them in connection with, arising out of or resulting from any claim alleging improper or illegal use of any of the Services provided to Customer or any of Customer’s clients by SwervePay or any Affiliated Entity, including but not limited to any claims arising from following the direction of Customer for communications to its clients as to frequency of sending messages by any medium, including but not limited to text, e-mail, facsimile or paper regarding any matter, including but not limited to past due sums, deposits for anticipated procedures, estimates of cost of procedures, appointment reminders, payment receipts or other communications. For purposes of this Section, indemnification of SwervePay and any Affiliated Entity includes, but is not limited to payment by Customer of any judgment, settlement, claim, penalties and costs, interest, reasonable attorneys’ fees and cost of defense, if SwervePay or any Affiliated Entity is named as a party to any action or suit related to delivery of communications to a Customer client or otherwise subject to this indemnification. In such an event, SwervePay and any Affiliated Entity shall have the option at any time of either being defended by Customer’s counsel or providing their own defense to the action (subject to regular monthly reimbursement from Customer for costs and fees incurred, regardless of the outcome of such action). For purposes of this Section: (i) “Losses” means any and all losses, liabilities, damages, penalties, obligations, awards, fines, deficiencies, demands, interest, costs and expenses (including reasonable attorneys’ fees, consultants’ fees and other professional fees and disbursements); and (ii) “Affiliated Entity” shall mean any “affiliate” of SwervePay (as such term is construed under Rule 405 promulgated under the Securities Act of 1933), as well as, without limitation, any independent contractor, business partner, solution extender, or service provider under contract with SwervePay that assists SwervePay in delivering any of the Services provided by SwervePay or any Affiliated Entity to Customer.
Term and Termination
Term; Renewal. These TOS and each applicable Customer Agreement shall become effective upon the later of (i) the date Customer accepts these TOS via Customer Agreement (the “Effective Date”), or (ii) the date You use any of the Services, if different; and will continue for the period indicated on an Exhibit A (“Initial Term”), unless terminated earlier or suspended according to the provisions of these TOS and the applicable Customer Agreement(s). Each Customer Agreement will thereafter automatically renew for successive twelve (12) month terms, unless either party gives the other party written or electronic notice, in accordance with the terms herein, of its intention not to renew the applicable Customer Agreement, at least thirty (30) days prior to the end of the then-current term or renewal term, unless termination is by SwervePay. Any renewal of Your Services is subject to our then-current terms and conditions, successful completion of any applicable authentication procedure, if any, and payment of all applicable Fees owing to us at the time of renewal. Additional payment terms may apply to the SwervePay Services You purchase, as set forth herein and in the applicable Schedules to this Agreement or any applicable Customer Agreement.
Suspension and Termination. Either party hereto may, at its option, and without notice, terminate the Services, effective immediately, should the other party hereto (i) admit in writing its inability to pay its debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (v) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (vi) have a decree entered against it by a court of competent jurisdiction appointing a receiver liquidate, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs.
- By Customer. Unless otherwise provided in a Customer Agreement, You may terminate the Services and any Customer Agreement upon prior thirty (30) days’ written notice to SwervePay by notifying SwervePay’s customer support electronically or in writing and following the instructions for cancellation prior to the end of the initial annual period or any annual renewal period. Subject to the above, SwervePay shall use commercially reasonable efforts to cancel the Services within seven (7) business days following such written notice from Customer. Customer shall be responsible for the payment of all fees due and payable through the effective date of termination. Termination requests for non-SwervePay, third-party services may not be made through SwervePay. Customer must instead contact such third-parties directly to cancel such services.
- By SwervePay. Notwithstanding the foregoing, SwervePay may suspend Customer’s access to the Services or terminate this Agreement as follows:
- Following ten (10) days’ prior electronic or written notice (such as an overdue invoice) if (a) Customer breaches the Agreement, (b) perpetrates fraud, (c) causes or fails to fix a security breach relating to the Services, (d) fails to comply with SwervePay’s best practices requirements for security management or to respond to an inquiry from SwervePay, concerning the accuracy or completeness of the information Customer is required to provide pursuant to this Agreement, (e) if SwervePay reasonably suspects fraudulent activity on Customer’s payment services account, (if such breach is not cured within such ten (10)-day period), (f) in the event that certain third-party licenses or access to third-party components of the Services are terminated, or (g) non-payment of invoice; or
- Immediately, without prior notice, if we reasonably believe: (a) Your breach compromises the security of the Services in any material fashion, (b) fraudulent Transactions are occurring on Your account, (c) Customer’s financial processor or Financial Institution with which Customer has a merchant account requires such termination or suspension or where continued breach of its Rules or contractual terms creates a risk of termination of such merchant account or of such entity doing business with SwervePay; or (d) You or a Transaction violates our Acceptable Use Policy or Rules.
Termination Date. The date upon which termination is effective shall be the “Termination Date.”
Effect of Termination.
- Cessation. SwervePay will cease providing the Services and cease charging Your Payment Method, if applicable, for any monthly, annual or bi-annual Service fees as of the expiration of the annual, bi-annual or monthly billing cycle in which the termination is effective. If termination is due to Your default hereunder, You shall bear all costs of such termination, including any reasonable costs SwervePay incurs in closing Your account and applicable termination Fees. You agree to pay any and all costs incurred by SwervePay in enforcing Your compliance with this Section. Upon termination, Your rights to use the Services, and any other rights granted hereunder, shall immediately cease, and You shall destroy any copy of the materials licensed to You hereunder and referenced herein except for such copies that are in electronic format and cannot be readily destroyed without undue cost or effort, which copies may be retained only for archival purposes and not for commercial use. Each party will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except that any termination of this Agreement will not relieve SwervePay or Customer from any liability or obligations arising prior to the Termination Date, which shall survive any termination of this Agreement. To the extent permitted by applicable law, You agree that upon termination for any reason, we may delete all information relating to Your use of the Service. Notwithstanding the foregoing, Your obligations to pay all fees due through the Termination Date and terms relating to covenants, indemnity, warranties or terms which by their nature are required to survive contract termination will survive any termination of this Agreement.
- Bundled Services. In addition to the terms set forth above, if You purchase Services which are sold together as part of a “bundled” package of services, any termination relating to such bundle will terminate all SwervePay Services included in such bundle. In such cases we may, in our sole discretion and subject to Your agreeing to be bound by the applicable agreement(s) and to pay the applicable fees, allow You to convert certain Services included in the bundled services to stand-alone Services. Notwithstanding the above, termination of the Services will terminate any add-on services.
- Reinstatement of Services. If Services are suspended or terminated by SwervePay due to lack of payment by Customer, reinstatement of Services shall be subject to Customer paying SwervePay (i) new set-up fees, at SwervePay’s then-current rates; and (ii) as applicable, all past due annual or monthly fees and Transaction Fees and all interest thereon at the Agreement Interest Rate (unless waived by SwervePay).
- Data Portability. After the Termination Date, SwervePay, upon written request from You, may, at it its option and only if practicable, provide Your new acquiring bank or payment service provider (“Data Recipient”), as applicable, with any available credit card information relating to Your Customers, subject to the following conditions: (i) You must provide us with proof that the Data Recipient is in compliance with the PCI-DSS requirements (level 1 PCI compliant) by giving us a certificate or report on compliance with the Association PCI-DSS requirements from a qualified provider and any other information reasonably requested by us; (ii) the transfer of such information is compliant with the latest version of the PCI-DSS requirements; and (iii) the transfer of such information is allowed under the applicable Card Issuer Rules, and any applicable laws, rules or regulations. You shall indemnify, defend, and hold harmless SwervePay from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorney’s fees) we suffer or incur arising out of or in connection with the transfer of any data to a Data Recipient.
Confidentiality
- Confidential Information. “Confidential Information” means any confidential, trade secret or proprietary information (which may be business, financial or technical information) disclosed by one party to the other under this Agreement that is marked confidential or if disclosed orally designated as confidential at the time of disclosure or that should be reasonably understood to be confidential. All source code and the terms of any Customer Agreement will be considered Confidential Information.
- Confidentiality Obligations. Each party (i) shall not disclose to any third-party or use any Confidential Information disclosed to it by the other except as expressly permitted by these TOS or a Customer Agreement and for purposes of performing the Services, and (ii) shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance. Each party further agrees to use the other party’s Confidential Information only for the purpose of its performance of the Services. In addition, the receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects which embody Confidential Information, and which are provided to the receiving party hereunder.
- Limitation of Confidentiality. The confidentiality obligations set forth in this Section (“Confidentiality Obligations”) above do not apply to information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information, (iv) is disclosed with the written approval of the disclosing party, or (v) is disclosed five (5) years from the effective date of termination or expiration of this Agreement.
- Exceptions to Confidentiality. Notwithstanding the Confidentiality Obligations set forth above, each party may disclose Confidential Information of the other party (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or (ii) on a “need-to-know” basis under an obligation of confidentiality substantially similar in all material respects to the Confidentiality Obligations to its legal counsel, accountants, contractors, consultants, banks and other current or potential financing sources (including investors).
Miscellaneous
- Third-Party Services. You may be made aware of services, products, offers and promotions provided by third-parties, and not by SwervePay (“Third-Party Services”). If You elect to use Third-Party Services, You are solely responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing any Third-Party Services. You authorize us to use and disclose Your contact information, including name and address, for the purpose of making the Third-Party Services You select available to You. You agree that the third-party is solely responsible for the performance of the Third-Party Services.
- Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder, except for Customer’s payment obligations hereunder, due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this Section shall give the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof, and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided, however, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, either party may immediately terminate the Agreement.
- Entire Agreement and Modification. Except for a valid Customer Agreement attached hereto or any other written agreement signed by both of us, the terms in this Agreement constitute the entire agreement between SwervePay and You regarding its subject matter and its terms supersede any prior or simultaneous agreement, terms, negotiations, whether written or oral, or whether established by custom, practice, policy or precedent, between the parties hereto. Except as otherwise provided for herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties herein. You acknowledge and agree that in the event a purchase order (“PO”) contains additional terms, provisions or language (“PO Terms”), those PO Terms shall be null and void unless accepted in writing by SwervePay pursuant to a Customer Agreement.
- Severability. In the event that any provision of these TOS or a Customer Agreement is unenforceable or invalid such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
- No Assignment. Customer may not assign any rights or obligations under these TOS, to the Services, or any Customer Agreement without the prior written consent of SwervePay. SwervePay may assign its rights, obligations or duties regarding the Services, these TOS or any Customer Agreement upon prior written notice to You.
- Governing Law and Jurisdiction. These TOS, the Services and each Customer Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without reference to its conflicts of laws principles. Each party consents to the exclusive venue and jurisdiction of the competent state and/or federal courts in Chicago, Illinois, for any dispute arising out of or related to this Agreement, with venue to be laid in the appropriate courthouse in Chicago, Illinois. The parties acknowledge and agree that this Agreement is made and performed in Chicago, Illinois. THE PARTIES HEREBY WAIVE ANY RIGHT TO JURY TRIAL WITH RESPECT TO ANY ACTION BROUGHT IN CONNECTION WITH THIS AGREEMENT. For avoidance of doubt, the application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
- Export Restrictions. You acknowledge and agree that You shall not import, export, or re-export directly or indirectly, any commodity, including Your products incorporating or using any SwervePay products or Services in violation of the laws and regulations of any applicable jurisdiction. The Services are subject to the U.S. export controls regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII). You will not export or re-export the Services, or portion thereof, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end user, or to any end user who You know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons.
- Notices. Except as otherwise expressly stated in this Agreement, all notices to SwervePay shall be in writing and delivered, via courier, commercial carrier or certified or registered mail (in each case with delivery confirmation), to SwervePay at its official corporate address, or via email (with proof of transmission) to the authorized representative identified in the applicable Customer Agreement. All notices to You shall be delivered to Your mailing address or e-mail address as provided by You in Your account information, as updated by You pursuant these TOS. Unless You choose to opt-out of receiving marketing notices, You authorize SwervePay to notify You as our customer, via commercial e-mails, telephone calls and other means of communication, of information that we deem is of potential interest to You, including without limitation communications describing upgrades, new products and services or other information pertaining to the Services or other SwervePay offerings relating to Internet security or to payment services. Notwithstanding the above, You shall not have the right to opt-out of service or support notices relating to the Services, including without limitation, notices of service modifications, security, performance issues or technical difficulties.
- Headings. The section headings appearing in these TOS or any Customer Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
- Independent Contractors. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
- Non-Disparagement; Publicity. In consideration of the Services and payments received therefor, neither party will disparage the other party or the other party’s trademarks, websites, products or services, or display any such items in a derogatory or negative manner on any website or in any public forum or press release. Unless otherwise stated herein, You shall not issue a press release or otherwise advertise, make a public statement or disclose to any third-party information pertaining to the parties’ relationship, the existence or terms of these TOS or any Customer Agreement, the Services and any underlying transactions between SwervePay and You, or referring to the other party in relation to Services without the SwervePay’s prior written approval.
- Costs, Legal Expenses. Except as expressly stated in a Customer Agreement, each party shall be solely responsible for the costs and expenses of performing its obligations hereunder. In the event of a dispute arising from or related to the Services, these TOS or a Customer Agreement, which results in litigation or any other proceeding (“Litigation”) the prevailing party in such Litigation shall recover from the other its costs, expenses and reasonable attorney’s fees in connection with such litigation or other proceeding.
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Effective April 21, 2020 to April 21, 2020
DownloadTable of Contents
SwervePay General Terms of Services for All Services
UNLESS OTHERWISE EXPRESSLY AGREED IN AN AUTHORIZED WRITTEN AGREEMENT, THESE TERMS OF SERVICE (“TOS”) APPLY TO ALL SERVICES DELIVERED BY OR RECEIVED FROM SWERVEPAY FOR ANY MERCHANT OR CUSTOMER. THESE TOS ARE INCORPORATED BY REFERENCE INTO EACH AND EVERY AGREEMENT BETWEEN SWERVEPAY AND EACH PURCHASE, CONSUMER, OR OTHER USER OF ITS SERVICES. IT CONSTITUTES A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND SWERVEPAY, LLC. YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE AGREEMENT. BY USING ANY OF OUR SERVICES, YOU ACCEPT THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, PROMPTLY DISCONTINUE USE OF THE SERVICES.
In these TOS, “Customer,” “You” and “Your” refer to each customer or sub-merchant and its designated agents, including Your administrative contact, employees, officers, directors, agents, Affiliates, successors and assigns, and “SwervePay,” “we,” “us” and “our” refer collectively to SwervePay, LLC, an Illinois limited liability company, and its Members, officers, directors, employees, agents, affiliates, subsidiaries (including, but not limited to SwervePay Auto, LLC, SwervePay Finance, LLC and SwervePay Health, LLC), successors and/or assigns. These TOS explains our obligations to You, and Your obligations to us in relation to the service(s) You purchase, use or otherwise acquire from us (“Services”). By using any Services, You agree to establish an account with us for such Services. When You use Your account or permit someone else to use Your account to purchase or otherwise acquire access to any SwervePay Services or to modify or cancel Your Services (even if we were not notified of such authorization), this Agreement as amended covers any such service or actions. Additionally, You agree that the administrative contact for any Services provided to You is Your agent with full authority to act on Your behalf with respect to such Services, as permitted by the Services and related documentation, including (but not limited to) the authority to terminate, transfer (where transfer is permitted by the Agreement), or modify such Services, or purchase additional services. Any acceptance of Your application(s) or requests for our Services and the performance of our Services will be deemed to occur at our offices in Chicago, Illinois.
Important Notice Concerning Bundled Services: If You purchase separate SwervePay Services that are sold together as a “bundled” package, as opposed to Your purchasing such services separately, termination of any part of the Services may result in termination of all SwervePay Services provided as part of the bundled package unless arrangements are made to pay for the Services separately.
Definitions
“Affiliate(s)” means a person or entity controlled by or under common control with another person or entity, including, without limitation, as the term “affiliate” is construed under Rule 405 promulgated under the Securities Act of 1933 as amended.
“Customer Agreement(s)” means any agreement for Services between SwervePay and a Customer, each of which shall and hereby does incorporate these TOS by reference except as otherwise expressly agreed in such agreement.
“Card Issuer” means, as applicable, any of Visa, MasterCard, Discover, American Express, any ATM or debit or gift card network, or any other financial service card organizations, with two or more of such organizations hereinafter sometimes collectively referred to as “Card Issuers” and as to each Card Issuer, each such card issued by it, a “Card” and each holder or owner of a Card being a “Cardholder” or “Customer.”
“Card Organization Rules” means the rules imposed from time to time by each Card Issuer intended to govern the usage of its network and services.
“Chargeback” means a challenge to a payment that a Customer or Cardholder files directly with his, her or its Card Issuer, bank or other similar party.
“Customer Data” means any information received from a Cardholder or Customer used in connection with the Services.
“Financial Institution” means banks or financial institutions having business relationships with one or more Financial Processors that have agreed to evaluate and provide merchant accounts and payment authorization services to merchants.
“Financial Processor” means an entity with which SwervePay has established a relationship that performs the back-end authorization and processing of Transactions between the Customer’s Financial Institution and the Cardholder’s bank.
“Services” means any services used by Customer, including merchant services, payment services, and services involving Software and any add-on or additional services requested or specifically described in an agreement. Current descriptions of SwervePay’s Services are available at www.swervepay.com.
“Software” means the object code version of SwervePay’s client software, HTML code, application programming interfaces (“APIs”), related documentation and other client software or code which SwervePay may provide to Customer, including updates, to enable SwervePay to provide the Services to Customer. Unless otherwise specified, Software shall not include any source code. The Software is proprietary to SwervePay and is licensed to Customer pursuant to these TOS, and subject strictly to those terms and restrictions.
“Management Web Site” means SwervePay’s online account management tools for Your use of the Services.
“Swipe Device” means a device, which if purchased or required for Your use of the Services, is capable of receiving information from a Card for payment processing, including via magnetic swipe, chip-reader, or other means. Once Your Customer Account is approved, and if purchased or required for Your account, a Swipe Device will be sent to You or acquired by You for use at the address provided. SwervePay does not warrant that the swipe device or the Services will be compatible with Your computer, mobile Device or third-party carrier. Your use of the Swipe Device and the Services may also be subject to the terms of Your mobile device manufacturer and Your carrier. We shall not be responsible for any damages caused by defects associated with any Swipe Devices used by You with respect to Your business or any hacking, or other unauthorized use, of any of such Swipe Devices.
“Transaction” means a transfer of funds between You and a third-party using the Services, including information related to the purchase of goods and services from Customer by a third-party, such as any of its customers, clients, patients, or consumers of its products and/or services. Specifically, a Transaction is an authorization, delayed capture, sale, void, voice authorization or credit data transmission between SwervePay and its back-end processors in connection with the Services.
Customer Obligations
General Service Requirements. Customer shall be solely responsible for the following:
- Accuracy of Information Provided. You must provide accurate and complete information to us when applying for Your Customer Account. If Your request to open a Customer Account is approved, we may request additional information from You at any time. You shall maintain and promptly update such information if it should change.
- Customer Websites. Customer is responsible for establishing, hosting and maintenance of its website(s) and its connection to the internet (“Customer Website(s)”), fulfilling all orders for products and services sold by merchant to its users on the merchant website(s) or otherwise, including without limitation transmitting merchant’s registration information and transaction data to SwervePay servers or via the SwervePay Management Website and ensuring that any data stored or transmitted by merchant in conjunction with the Services and for enrollment for the Services is accurate, complete and in the form as requested by SwervePay, is securely collected and is not corrupted due to merchant’s systems. Customer is also responsible for reviewing the transactions in its account on a regular basis and notifying SwervePay promptly of unauthorized activity through its account.
- Banking. Customer is responsible for establishing and maintaining a commercial banking relationship and account with one or more Financial Institutions, for purposes of receiving the Services (“Account”). The terms of such relationship shall be determined solely by Customer and the Financial Institution.
- Access. Customer is responsible for keeping its access credentials, including usernames, user IDs, passwords and the like, confidential. Customer shall notify SwervePay immediately upon learning of any unauthorized use of its username or password. Customer shall be solely responsible for (i) updating its passwords for access to the Services periodically, and (ii) creating passwords that are reasonably “strong” under the circumstances, in accordance with SwervePay’s requirements. A “strong” password is at least six characters long, does not contain all or part of the user’s account name, and contains at least three of the four following categories of characters: uppercase characters, lowercase characters, base 10 digits, and symbols found on the keyboard (such as !, @, #). Strong passwords should be generated in such a way that knowledge of one does not lead to knowledge of another.
- Business Practices. Customer is responsible for maintaining commercially reasonable business practices in conjunction with use of the Services, collecting, storing and transmitting its customer data in a secure manner and protecting the privacy of its customer data. Customer shall comply with SwervePay’s requests for reasonable action on Customer’s part, to the extent necessary, to maintain security and integrity of the Services.
- Computing. Customer is responsible for updating to the most current Software version and security updates and patches necessary to properly operate the Services and keeping all Customer enrollment and payment information current and updated on the Management Web Site; and
- Compliance. Customer agrees, and hereby represents and warrants that Customer shall (a) use the Services in accordance with the applicable user guides and other documentation provided by SwervePay from time to time; and (b) not use or permit others to use information obtained through the use of the Services for any purpose other than in conjunction with the Services and in a manner described in the documentation for the Services.
Honoring Cards. Whenever possible, You will identify the person presenting a Card and purporting to be a person authorized to use a Card and check the expiration date and signature on each Card. You will not honor a Card if the Card has expired or if You determine or suspect that the account number on the Card does not match the account number on the Card’s magnetic stripe or the account number is listed on a current Electronic Warning Bulletin file. You are responsible for ensuring that the Cardholder understands that You are responsible for the transaction, including the goods or services that are the subject of the transaction. In addition, You are solely responsible for all customer service issues relating to Your goods or services, including pricing, fulfillment, order cancellation, returns, refunds and adjustments, warranty, and support. You will not add any amount to the posted price of goods or services You offer as a condition of paying with a Card that is not consistent with the Card Issuer Rules and laws. You will properly disclose to each Cardholder that is or may be used in connection with any of the transactions subject to this Agreement, at the time of transaction, any limitation You have on accepting returned merchandise. Your return policy must be in accordance with the Card Issuer Rules. If Your refund policy prohibits returns or is unsatisfactory to the Cardholder, You may still receive a Chargeback relating to such transactions. You agree to make a written receipt available to the Cardholder for any transaction. You may provide the Cardholder the option to decline a written receipt. You may also offer electronic receipts delivered by SMS or e-mail to the Cardholder.
Returns. You agree to process returns of, and provide refunds and adjustments for, Your goods or services through Your Customer Account in accordance with these TOS, any Customer Agreement, each Vendor Processor’s Rules and applicable Card Issuer Rules.
Restrictions on Use of Services. In connection with the Services, You will comply with all Payment Card Industry Data Security Standard (“PCI-DSS”) requirements and consent to our Acceptable Use Policy, which is available at www.swervepay.com: You also agree that You will (a) not send SMS receipts to customers who have expressly refused delivery of a receipt in that manner; (b) comply with all applicable laws and regulations and all requirements of: (i) Card Issuers applicable to merchants; and (ii) all SwervePay Processors; (c) maintain the security of account login information You receive as part of Your use of the Services; (d) if You lose Your computer or mobile device, or You have reason to believe that Your account is no longer secure, You will immediately notify us; (e) not accept payments in connection with any illegal activity, or any activity that is inconsistent with Your type of business or any activity prohibited by the rules of Your Card Issuer.
Compliance With Law. You may only use the Services in compliance with all laws, rules, and regulations applicable to the use of the Services. We may choose not to authorize or settle any transaction submitted to SwervePay if we believe the transaction is in violation of these TOS, the applicable Customer Agreement(s) or may cause harm to You, us, or our Processors.
Processing Errors. You will promptly notify us of any errors within ten (10) days after the date of the asserted error or missing transaction(s). If You do not notify us within the ten (10)-day period, we shall not be liable for, nor obligated to investigate, correct, such asserted error and You agree that all claims related to such error are waived. If we discover processing errors, we will attempt to rectify those processing errors efficiently.
Wireless Service Providers. The Services may utilize SMS messages delivered through wireless service providers, such as AT&T, Sprint, Verizon, etc. You acknowledge that any SMS message goes through Your and the message recipient’s wireless service provider’s systems. The privacy statement of each associated wireless service provider applies as the message passes through those systems. As a requirement to permit usage of SMS systems some wireless service providers may require that we disclose to them information about users of the Services and the nature of business to be conducted. In this situation the information will be used to ensure legitimate use of the SMS systems and not for marketing purposes. You acknowledge and agree that we may provide information about You to wireless service providers as described above. You may upload or enter certain data from Your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You may be made aware of or offered services, features, products, applications, online communities, or promotions provided by us or our affiliates. Installing any of our applications or Software grants us the right to send the identifiers for Your mobile device and Your Customers to third-parties for the use of advertising purposes. You are responsible for securely managing access to Your data and to the Services. You agree to be bound by our privacy policy, as it may be amended from time to time in accordance with its terms or these TOS.
SwervePay's Obligations
Services. Subject to the terms in this Agreement, SwervePay agrees to (i) provide to Customer the Services for which Customer enrolls and pays the applicable fees, either upon request or pursuant to a Customer Agreement, including without limitation the transmission of Transaction information to Financial Processors, and (ii) provide Customer with access to standardized reports regarding Customer’s Transactions processed using the Services and certain reporting tools to assist Customer in accounting activities. SwervePay hereby grants to Customer the right to access and use the Services in accordance with these TOS and any applicable Customer Agreement. SwervePay is not bound by nor should Customer rely on any representation by (i) any agent, representative or employee of any third-party referring or relating to the Services, including Your application or request for them; or in (ii) information posted on our Website of a general informational nature.
Modification of Terms; Changes to Services. Except as otherwise provided in a Customer Agreement, Customer agrees that SwervePay may: (a) revise, amend, update or otherwise change these TOS, including without limitation modifying the service fees or payment terms; and/or (b) revise, amend, update or otherwise change or terminate any part of the Services at any time. Any such revision or change will be binding and effective either, at SwervePay’s sole discretion, thirty (30) days after posting a revision of these TOS on the SwervePay Management Web Site, or upon electronic or written notification to You. You agree to periodically review the Management Web Site, including the current version of this Agreement available on the Management Web Site, to be aware of any such revisions. If You do not agree with any revision to the Agreement, You may terminate this Agreement at any time by providing us with thirty (30) days’ prior written notice. Notice of Your termination will be effective thirty (30) calendar days after receipt and processing by us. Any fees paid by You if You terminate Your Agreement with us are nonrefundable, except as otherwise expressly stated herein, but You will not incur any additional fees due to such termination. By continuing to use SwervePay Services after any revision to this Agreement or change in Services, You agree to abide by and be bound by any such revisions or changes. No non-executive employee, contractor, agent or representative of SwervePay is authorized to alter or amend the terms and conditions of these TOS.
Secure Transactions. SwervePay has implemented and will maintain security systems for the transmission of Customer’s Transactions, consisting of encryption and “firewall” technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet. SwervePay does not guarantee the security of the Services or Transaction data, and SwervePay will not be responsible in the event of any infiltration of its security systems or other breach of Security of Your data or systems or Customer data or systems, provided that SwervePay has used commercially reasonable efforts to prevent any such infiltration. Customer further acknowledges and agrees that Customer, and not SwervePay, is responsible for the security of Transaction data or information or any other information stored on Customer’s servers, and that SwervePay is not responsible for any other party’s servers (other than subcontractors of SwervePay solely to the extent SwervePay is liable for its own actions hereunder).
Technical Support for Services. SwervePay shall provide the technical support services to Customer, if any, pursuant the support package, if any, selected by Customer in a Customer Agreement. SwervePay’s then-current, standard technical support descriptions for Services shall be available at www.swervepay.com.
Proprietary Rights, Licenses, Restrictions
SwervePay IP. Except as otherwise set forth herein, all right, title and interest in and to: (i) all registered and unregistered trademarks, service marks and logos; (ii) all patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) all trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) all registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property (“IP”), proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services identified herein (“SwervePay IP”) are owned by SwervePay Services or its licensors, and You agree to make no claim of interest in or ownership of any such SwervePay IP. You acknowledge that no title to the SwervePay IP is transferred to You, and that You do not obtain any rights, express or implied, in the SwervePay Services or its licensors’ services, other than the rights expressly granted in this Agreement. To the extent that You create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to You, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by SwervePay and all existing and future copyright and other right, title and interest in and to each such Derivative Work, are assigned to, and shall automatically vest in, SwervePay, and to cooperate with SwervePay in connection with any actions by it to establish its rights in the same. SwervePay shall have no obligation to grant You any right in any such Derivative Work. Except to the extent permitted by applicable law, Customer shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Services or any components thereof, or otherwise apply any procedure or process to the Services or components thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings or any algorithm, data, process, procedure or other information contained therein. Customer shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Services or components thereof.
Limited License for Software and Services. Unless otherwise expressly provided in a Customer Agreement, SwervePay grants Customer a personal, limited, non-exclusive, non-transferable license, during such time that You satisfy the conditions set forth in each of Your Customer Agreement(s) and these TOS, to electronically access and use the Services solely for the purpose described herein and in any Customer Agreement. Except as expressly allowed herein, a Customer Agreement or by applicable law, You are not permitted to do any of the following and shall not allow any third-party to do any of the following: (i) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way any components of the Services; (ii) permit any third-party to benefit from the use or functionality of the Services via a rental, lease, timesharing, service bureau, or other arrangement; (iii) transfer any of the rights granted to You under any Customer Agreement or these TOS; (iv) work around any technical limitations in the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer the any component of Services except as otherwise permitted by applicable law; (v) perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or the use of the Services by our other licensees or customers; or (vi) export the Services, directly or indirectly. We reserve all rights not expressly granted to You in these TOS or a Customer Agreement. Components of the Services are protected by intellectual property laws, including international, U.S. federal and state laws. SwervePay and its licensors, collectively (as their respective interests may appear) own the title, copyright, and other worldwide intellectual property rights in the Services and all copies of the Services and any Software. Neither any Customer Agreement nor these TOS: (i) grant You any rights to our trademarks or service marks or (ii) limit any rights that we may have under trade secret, copyright, patent or other laws, domestic or abroad.
Customer Data. All “Customer Data” provided by You or any of Your Customers in the course of a Transaction shall be owned by You or Your Customer (subject to Your right to make the grants in this Section 3). You hereby grant us a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display the Customer Data for the purposes of (i) providing and improving the Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymised and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and (iv) any other purpose for which consent has been provided by the Customer.
Privacy and Security
SwervePay Privacy Polices. Our privacy statement for the Services is located on our Website at https://www.SwervePay.com and is incorporated herein by reference, as it is applicable to the Services and each Customer Agreement. The privacy statement sets forth Your and our rights and responsibilities with regard to Your personal information. You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Website. You agree to monitor our Website periodically to review such revisions. By using our Services after modifications to the privacy statement, You have agreed to these modifications. You acknowledge that if You do not agree to any such modification, You may terminate this Agreement.
Cardholder Information. You shall keep all Customer Data confidential and secure. You shall not disclose to any third-party any Cardholder account information or other personal information except in connection with the Services and in accordance with the Card Organization Rules or applicable law (including but not limited as required under the Health Insurance Portability and Accountability Act or “HIPAA”). You must keep all Cardholder information in a secure manner to prevent disclosure to unauthorized parties. You may not disclose or distribute any such information to a third-party or use the information for marketing purposes unless You receive the express consent of the user.
Use of Data. Customer acknowledges and agrees that in the course of providing the Services, SwervePay will capture certain transaction and user information (collectively, the “Data”). Customer agrees to provide to SwervePay, and SwervePay shall capture, only the Data that is required by the Software and is necessary for SwervePay to provide the Services. SwervePay agrees to use Data in its personally identifiable form only as necessary to complete the requested transaction. SwervePay shall not disclose Data to third-parties or use the Data, except that SwervePay shall have the rights: (i) to use the Data as necessary to perform the Services pursuant to these TOS or contemplated in a Customer Agreement (including distributing the Data to third-parties providing services requested by Customer); (ii) to maintain the Data as long as necessary, as required by law or as used internally for record keeping, internal reporting, and support purposes; (iii) to compile and disclose Data in the aggregate where individual merchant Data is not identifiable, including without limitation, calculating merchant averages by region or industry; and (iv) to provide the Data as required by law or court order, or to defend SwervePay’s rights in a legal dispute. You represent and warrant that You have provided notice to, and obtained consent from, any third-party individuals whose personal Data You supply to us as part of our services with regard to: (i) the purposes for which such third-party’s personal Data has been collected, (ii) the intended recipients or categories of recipients of the third-party’s personal Data, (iii) which parts of the third-party’s Data are obligatory and which parts, if any, are voluntary; and (iv) how the third-party can access and, if necessary, rectify the data You hold about them. You further agree to provide such notice and obtain such consent with regard to any third-party personal Data You supply to us in the future. We are not responsible for any consequences resulting from Your failure to provide notice or receive consent from such persons or entities nor for Your providing outdated, incomplete or inaccurate information.
PCI-DSS Requirements. While SwervePay and/or our Affiliates use security and encryption features to ensure the security and safety of Your personal information and that of Your Customers, SwervePay cannot absolutely guarantee the security of Your personal information from unauthorized access, loss or disclosure by third-parties. To ensure the highest level of security You agree to comply with our Acceptable Use Policy, including the PCI-DSS requirements and You represent and warrant that, while using any Services: (a) You are, and shall remain, in full compliance with all laws, statutes and federal and/or state regulations, as well as the Rules as may be applicable to You, Your business and any Card transaction; (c) You (and any outside agent that You may utilize to submit Transactions to SwervePay) comply and will comply with all our Acceptable Use Policy and all PCI-DSS requirements and You hereby agree to pay any fines and penalties that may be assessed by any Card Issuer as a result of Your non-compliance with PCI-DSS requirements, any data breaches, or by Your failure to accurately validate its compliance. You will review and monitor the requirements at http://www.visa.com/CISP, and http://www.pcisecuritystandards.org in order to determine the timeframes and mandates for compliance under PCI-DSS requirements. Your obligations to do so continue through the later of (y) the Termination Date or the (z) date You cease using all Services. You acknowledge and understand that You may be prohibited from participating in Card Issuer programs if it is determined that You are non-compliant.
Fees, Accounts and Payment Terms
Fees. As consideration for the Services, You agree to pay SwervePay the applicable service(s) fees set forth in an Exhibit A, or as otherwise provided by SwervePay in each Customer Agreement in force and effect, at the time of Your selection (and as it may be amended from time to time), or, if applicable, upon receipt of Your invoice from SwervePay. Should Customer wish to add Services, such addition shall be made by an additional Exhibit A either by written agreement signed by SwervePay and Customer or by e-mail from one party to the other acknowledged by reply e-mail. Fixed monthly fees are charged monthly in advance. Charges that are based on usage, such as text messages or transaction fees, are billed as soon as practicable following the end of the month. No objection to charges will be valid if not provided by notice to SwervePay within thirty (30) days of the date of the applicable invoice or charge by SwervePay. SwervePay will investigate such charges, which shall remain due and payable (and not subject to set off or deduction) until such point in time, if any, that SwervePay advises Customer to the contrary. Customer agrees to an automatic debit to ACH to settle billings; there shall be no separate invoice sent. SwervePay shall have the right from time to time to increase the prices called for on Exhibit A on thirty (30) days’ prior notice to Customer (either by e-mail or written notice), which shall be effective should Customer not object to such price increase within such thirty (30) day period; should customer object to such price increase on a timely basis, then at SwervePay’s option, to be delivered in writing or by e-mail, such price increase shall be rescinded retroactive the original notification, subject to SwervePay’s right to terminate this Agreement as set forth below.
Payments; Refunds; Pre-Payments. You are solely responsible for the credit card or Direct Debit (“Payment Method”) account information You provide to SwervePay and must promptly inform SwervePay of any changes thereto (e.g., change of expiration date or account number). Changes should be communicated to SwervePay by entering the updated information through the SwervePay tools or contacting SwervePay customer support. All payments shall be made in U.S. dollars. All fees are non-refundable unless otherwise explicitly stated in this Agreement. If we do issue a refund, we will do so via the Payment Method used by You to pay for the Services being refunded. For additional services or add-on services, Customer shall either prepay SwervePay’s then-current annual prepaid fees, if available, or pay the then-current monthly fees for such services, in accordance with the applicable Customer Agreement. If Customer uses SwervePay add-on services that are subject to additional standard fees that are not prepaid at enrollment, then SwervePay shall either immediately charge Customer’s credit card or debit Customer’s DDR account, as applicable, for SwervePay’s then-current fees for such services or invoice Customer for such additional standard fees, and Customer shall pay such invoice immediately.
Taxes. Customer is solely responsible for collecting, reporting and remitting any taxes required to be collected, paid or withheld in connection with the Services (“Taxes”). SwervePay is not responsible to determine whether or not Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. If in a given calendar year You receive (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Vendor or its Vendor processor(s) is authorized to report annually to the Internal Revenue Service (“IRS”), as required by law, Your name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments You receive in a calendar year, and the total dollar amount of the payments You receive for each month in a calendar year. You agree to pay all Taxes (including value added, sales and other taxes (other than taxes based on SwervePay’s income)) related to the Services or payments made by You hereunder. All payments due to SwervePay shall be made without any deduction or withholding on account of any tax, duty, charge or penalty, except as required by law, in which case, the sum payable by a party in respect of which such deduction or withholding is to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, SwervePay receives and retains (free from any liability in respect thereof) a net sum equal to the sum it would have received but for such deduction or withholding being required. Set up fees, if any, will become payable on the applicable effective date for the applicable SwervePay Services. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less (the “Agreement Interest Rate”). Customer hereby authorizes us to charge Customer’s Payment Method for the fees due for the Services, and Customer shall provide to SwervePay proper authorization for purposes of allowing SwervePay to debit the applicable Customer account to collect fees due under these TOS and each Customer Agreement. All fees owed by Customer to third-parties (for example, Financial Institutions, Financial Processors and merchant account providers), are Customer’s sole responsibility and are not covered by the Services.
Overcharge Fee. Excluding merchant services, in the event You exceed the Transaction limit permitted for the applicable Services as provided in any Customer Agreement (“Excess Transaction”) in any month, Customer may be charged a monthly transaction fee (“Monthly Overcharge Fee”) to be determined by multiplying each Excess Transaction processed in that month by the corresponding Service’s Transaction Fee. The Monthly Excess Transaction Fee shall be invoiced or debited in accordance with the terms for Fees above.
Chargebacks. These terms apply to Chargebacks for merchant services:
- The amount of a transaction may be reversed or charged back to Your Customer Account (each a “Chargeback”) for reasons, including, but not limited to, any one of the following: (i) an invalid Card account is submitted by You; (ii) neither the Cardholder nor a person authorized by the Cardholder received the goods or services requested; (iii) the Cardholder disputes the quality of the goods or services received; (iv) the Cardholder never received a credit for a returned item or a cancelled order; (v) the Cardholder was charged incorrectly; (vi) the authorization code is invalid; (vii) the Card was expired or not effective; (viii) the transaction is disputed; (ix) the transaction is reversed by the Card Issuer, our Processor, or a financial institution for any reason; or (x) the transaction was not authorized.
- For any transaction that results in a Chargeback, we may withhold or cause to be withheld the Chargeback amount in the Reserve Account. You may be subject to a chargeback on sales for a minimum period of one hundred eighty (180) days from the date the sale was entered into the processing system. We may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by each applicable Vendor Processor from Your Customer Account, Your Reserve Account, if any, any proceeds due to You, or Your bank account. If You have pending Chargebacks or we reasonably believe that a Chargeback is likely, we may withhold or delay payments from Your Customer Account for the later of: (i) two hundred seventy (270) days following the Termination Date; (ii) one hundred eighty (180) days from Your last Chargeback; or (iii) thirty (30) days following Your delivery of written notification disputing the Chargeback in question and the basis therefor with appropriate documentation in accordance herewith. You agree to respond to all Chargebacks promptly. 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 together with interest computed at the Agreement Interest Rate on any unpaid Chargeback amounts You owe to us from time to time. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of SwervePay related to any efforts to collect any Customer Account deficit balances (including, but not limited to, Chargeback amounts) which remain unpaid by for more than thirty (30) days.
Customer Accounts.
- Deposit of Funds. Upon validation of Your Customer Account, Vendor or Vendor’s Processor(s) will deposit to Your Customer Account the amounts actually received by us for completed transactions submitted through the Services at the end of every business day unless otherwise agreed in Your Customer Agreement. Payouts to Your bank account will normally register within two (2) to three (3) business days. Each Transaction will be considered complete when SwervePay has received the funds and when such funds have been accepted by the designated bank or financial institution. We shall have the right to deduct from Your Sub-Customer Account: (i) following the end of each month during the term of this Agreement any Fees owing from You to us or any of our Processors; and (ii) immediately at any time, any Chargebacks, penalties or other Fees owing from You to us or any of our Processors. Should we need to conduct an investigation or resolve any dispute related to Your Sub-Customer Account (including but not limited to issues around possible prohibited transactions or other breaches of these TOS or any Customer Agreement, or applicable SwervePay, Processor or Card Issuer Rules), we may defer payout or restrict access to Your funds for as long as we deem necessary. We also may defer payout or restrict access to Your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
- Customer Account Activity. You are responsible for monitoring Your transactions and ensuring that our payments to You are correct. You agree to contact us immediately if You discover or become aware of an error or an unauthorized transaction on Your Customer Account. You must notify us of any errors in payments made to You within thirty (30) days of the error or unauthorized transaction. Your failure to notify us of any such errors within the applicable thirty (30)-day period will constitute a waiver of any right or claim to amounts owed to You. Further, You are responsible for reconciling all transactions with Your Customer Account and keeping permanent records of such transactions.
- Reserve Accounts. For the purpose of providing a source of funds to pay damages which SwervePay or our Processors may potentially suffer in connection with providing You Services, and to pay Fees, fines, Chargebacks or other amounts You may owe or be assessed by any processor, a separate reserve account (the “Reserve Account”) may be established from time to time by You, us or any of our Processors to secure Your current and/or future potential obligations as reasonably determined us or our Processor. The Reserve Account will be in an amount as reasonably determined to protect the present or future interests and may be raised, reduced or removed at any time, in our or our Processor’s sole discretion. If there are not sufficient funds in Your Reserve Account, You grant us the right of recoupment and set-off and may fund the Reserve Account from any funding source associated with Your Customer Account, including but not limited to any funds due to You for the Services or under any Customer Agreement or available in Your bank account. If, in our opinion, the Personal Property Securities Act 2009 enables us to improve our security interest over the Reserve Account, You agree to do all things necessary, including obtaining the appropriate authorizations and executing any document to effect such improvement.
Representations and Warranties; Disclaimers; Limitations of Liability
By SwervePay. SwervePay represents and warrants that: (a) it has all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (b) all corporate action on the part of SwervePay, its officers, board of directors and stockholders necessary for the performance of its obligations under this Agreement has been taken.
Limitations of Liability.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN A SERVICES AGREEMENT (AS RELATES TO THE SUBJECT MATTER THEREOF), OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, SWERVEPAY AND ITS LICENSORS, AS APPLICABLE, EXPRESSLY DISCLAIM EACH WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES OR SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- SWERVEPAY’S LIABILITY TO YOU RELATING TO THE SERVICES, WHETHER ARISING UNDER THESE TOS, A SERVICES AGREEMENT, OR OTHERWISE, IS LIMITED, AT SWERVEPAY’S OPTION, TO (a) REFUNDING THE PRICE OF THE SERVICES IN RESPECT OF WHICH THE LIABILITY AROSE OR (b) TO PROVIDING, REPLACING OR REPAIRING THOSE SERVICES, OR (c) PROVIDING THOSE SERVICES AGAIN IN A MANNER REASONABLY CALCULATED TO AVOID FUTURE LIABILITY.
- Customer acknowledges that SwervePay is not a financial or credit reporting institution. SwervePay is responsible only for providing data transmission to effect or direct certain payment authorizations for You and is not responsible for the results of any credit inquiry, the operation of websites of ISPs or Financial Institutions or the availability or performance of the Internet, or for any damages or costs You suffer or incur as a result of any instructions given, actions taken or omissions made by You, Your financial processor(s), Your Financial Institution or any ISP. IN NO EVENT WILL SWERVEPAY’S LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE) ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO SWERVEPAY BY YOU HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. IN NO EVENT WILL SWERVEPAY OR ITS LICENSORS HAVE ANY LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE) TO YOU OR ANY OTHER PARTY FOR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE REGARDING ANY LIMITED REMEDY. Notwithstanding the above, the limitations set forth above shall be enforceable to the maximum extent allowed by applicable law.
- YOU ACKNOWLEDGE THAT NEITHER SWERVEPAY NOR ITS LICENSORS HAVE REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY OR WITHOUT COMPROMISE OF THE SECURITY SYSTEMS RELATED TO THE SERVICES OR THAT ALL ERRORS WILL BE CORRECTED.
By Customer. You represent and warrant that You shall comply with all applicable privacy, consumer and other laws and regulations with respect to Your: (i) provision, use and disclosure of the Data, Cardholder information; (ii) dealings with the users, Cardholders or other parties providing the Data; and (iii) use of the Services. You also represent and warrant that that You are either (x) a legal resident of the United States, (y) a United States citizen, or (z) a business entity authorized to conduct business by the state in which it operates. The Services may only be used within the United States of America.
- Corporate and Other Entity Customers. If Customer is a corporation or corporate entity (which for purposes hereof shall include any limited liability company, limited partnership, limited liability partnership or other entity that limits the liability of its beneficial owners) You represent and warrant that: (i) You have all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (ii) all corporate action on the part of You, Your officers, board of directors, stockholders, partners or members necessary for the performance of Your obligations under this Agreement has been taken; (iii) this Agreement constitutes Your valid and legally binding obligation, enforceable against it in accordance with the terms hereof; (iv) You are in good standing in Your jurisdiction of incorporation or organization and are eligible to register and use the Services; (v) Your authorized representative(s) has read and understands the entire Agreement and, after doing so, You desire to be bound thereby, and You have been represented by counsel of Your own choosing; (vi) no representations of any kind or character have been made to induce You to execute and enter into any Agreement, these TOS, or to accept the Services; (vii) any sales transaction submitted by You will represent a bona fide sale by You; (viii) any sales transactions submitted by You will accurately describe the goods and/or services sold and delivered to a Customer; (ix) You will fulfill all of Your obligations to each customer for which You submit a transaction and will resolve any customer dispute or complaint directly with the purchaser; (x) except in the ordinary course of business, no sales transaction submitted by You through the Services will represent a sale to any principal, partner, proprietor, or owner of Your entity or any of Your other Affiliates; (xi) You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (xii) Your use of the Services will be in compliance with this Agreement; and (xiii) You agree to follow the applicable Card brand operating Rules and regulations.
- Individual or Non-Corporate Customers. If You are an individual or other non-corporate entity not covered by Section H.3(a) above, You represent that: (i) You are at least eighteen (18) years of age if an individual, or if an entity, all persons acting on Your behalf are at least eighteen (18) years of age; (ii) You are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (iii) the name You provided when You registered is Your name or business name under which You sell goods and services; (iv) each sales transaction submitted by You will represent a bona fide sale You made; (v) any sales transactions submitted by You will accurately describe the goods and/or services sold and delivered to a purchaser; (vi) You will fulfill all of Your obligations to each customer for which You submit a transaction and will resolve any customer dispute or complaint directly with the purchaser; (vii) You and all transactions initiated by You will comply with all federal, state, and local laws, rules, and regulations applicable to You and/or Your business, including any applicable tax laws and regulations; (viii) except in the ordinary course of business, no sales transaction submitted by You through the Services will represent a sale to any principal, partner, proprietor, or owner of Your entity or any of Your other Affiliates; (ix) You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (x) Your use of the Services will be in compliance with this Agreement; and (xi) You agree to follow the applicable Card Issuer operating Rules and regulations.
Indemnifications
Mutual Indemnifications. Either party to this Agreement (You, on the one hand, and SwervePay, on the other hand) will defend, indemnify, save and hold harmless the other party and the officers, directors, agents, Affiliates, distributors, franchisees and employees of the other party from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from the indemnifying party’s material breach of any duty, representation or warranty of any Customer Agreement or these TOS, as amended. An “Indemnified Party” party’s right to indemnification is conditioned upon the following: prompt written notice to the party obligated to provide indemnification (“Indemnifying Party”) of any claim, action or demand for which indemnity is sought; control of the investigation, preparation, defense and settlement thereof by the Indemnifying Party; and such reasonable cooperation by the indemnified part, at the Indemnifying Party’s request and expense, in the defense of the claim. The Indemnified Party shall have the right to participate in the defense of a claim by the indemnifying party with counsel of the Indemnified Party’s choice at the Indemnified Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry of any judgment that makes any admissions in the Indemnified Party’s name or imposes any liability upon the Indemnified Party.
Customer agrees not to use the Services in violation of any local, state or Federal laws, rules or regulations, or orders, including, but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”) and its related July 10, 2015 Omnibus Ruling, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its related Rules and Regulations, and agrees to indemnify, defend and hold SwervePay and any Affiliated Entity harmless from and against all Losses (defined below) that are incurred, suffered or paid, directly or indirectly, by any of them in connection with, arising out of or resulting from any claim alleging improper or illegal use of any of the Services provided to Customer or any of Customer’s clients by SwervePay or any Affiliated Entity, including but not limited to any claims arising from following the direction of Customer for communications to its clients as to frequency of sending messages by any medium, including but not limited to text, e-mail, facsimile or paper regarding any matter, including but not limited to past due sums, deposits for anticipated procedures, estimates of cost of procedures, appointment reminders, payment receipts or other communications. For purposes of this Section, indemnification of SwervePay and any Affiliated Entity includes, but is not limited to payment by Customer of any judgment, settlement, claim, penalties and costs, interest, reasonable attorneys’ fees and cost of defense, if SwervePay or any Affiliated Entity is named as a party to any action or suit related to delivery of communications to a Customer client or otherwise subject to this indemnification. In such an event, SwervePay and any Affiliated Entity shall have the option at any time of either being defended by Customer’s counsel or providing their own defense to the action (subject to regular monthly reimbursement from Customer for costs and fees incurred, regardless of the outcome of such action). For purposes of this Section: (i) “Losses” means any and all losses, liabilities, damages, penalties, obligations, awards, fines, deficiencies, demands, interest, costs and expenses (including reasonable attorneys’ fees, consultants’ fees and other professional fees and disbursements); and (ii) “Affiliated Entity” shall mean any “affiliate” of SwervePay (as such term is construed under Rule 405 promulgated under the Securities Act of 1933), as well as, without limitation, any independent contractor, business partner, solution extender, or service provider under contract with SwervePay that assists SwervePay in delivering any of the Services provided by SwervePay or any Affiliated Entity to Customer.
Term and Termination
Term; Renewal. These TOS and each applicable Customer Agreement shall become effective upon the later of (i) the date Customer accepts these TOS via Customer Agreement (the “Effective Date”), or (ii) the date You use any of the Services, if different; and will continue for the period indicated on an Exhibit A (“Initial Term”), unless terminated earlier or suspended according to the provisions of these TOS and the applicable Customer Agreement(s). Each Customer Agreement will thereafter automatically renew for successive twelve (12) month terms, unless either party gives the other party written or electronic notice, in accordance with the terms herein, of its intention not to renew the applicable Customer Agreement, at least thirty (30) days prior to the end of the then-current term or renewal term, unless termination is by SwervePay. Any renewal of Your Services is subject to our then-current terms and conditions, successful completion of any applicable authentication procedure, if any, and payment of all applicable Fees owing to us at the time of renewal. Additional payment terms may apply to the SwervePay Services You purchase, as set forth herein and in the applicable Schedules to this Agreement or any applicable Customer Agreement.
Suspension and Termination. Either party hereto may, at its option, and without notice, terminate the Services, effective immediately, should the other party hereto (i) admit in writing its inability to pay its debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (v) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (vi) have a decree entered against it by a court of competent jurisdiction appointing a receiver liquidate, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs.
- By Customer. Unless otherwise provided in a Customer Agreement, You may terminate the Services and any Customer Agreement upon prior thirty (30) days’ written notice to SwervePay by notifying SwervePay’s customer support electronically or in writing and following the instructions for cancellation prior to the end of the initial annual period or any annual renewal period. Subject to the above, SwervePay shall use commercially reasonable efforts to cancel the Services within seven (7) business days following such written notice from Customer. Customer shall be responsible for the payment of all fees due and payable through the effective date of termination. Termination requests for non-SwervePay, third-party services may not be made through SwervePay. Customer must instead contact such third-parties directly to cancel such services.
- By SwervePay. Notwithstanding the foregoing, SwervePay may suspend Customer’s access to the Services or terminate this Agreement as follows:
- Following ten (10) days’ prior electronic or written notice (such as an overdue invoice) if (a) Customer breaches the Agreement, (b) perpetrates fraud, (c) causes or fails to fix a security breach relating to the Services, (d) fails to comply with SwervePay’s best practices requirements for security management or to respond to an inquiry from SwervePay, concerning the accuracy or completeness of the information Customer is required to provide pursuant to this Agreement, (e) if SwervePay reasonably suspects fraudulent activity on Customer’s payment services account, (if such breach is not cured within such ten (10)-day period), (f) in the event that certain third-party licenses or access to third-party components of the Services are terminated, or (g) non-payment of invoice; or
- Immediately, without prior notice, if we reasonably believe: (a) Your breach compromises the security of the Services in any material fashion, (b) fraudulent Transactions are occurring on Your account, (c) Customer’s financial processor or Financial Institution with which Customer has a merchant account requires such termination or suspension or where continued breach of its Rules or contractual terms creates a risk of termination of such merchant account or of such entity doing business with SwervePay; or (d) You or a Transaction violates our Acceptable Use Policy or Rules.
Termination Date. The date upon which termination is effective shall be the “Termination Date.”
Effect of Termination.
- Cessation. SwervePay will cease providing the Services and cease charging Your Payment Method, if applicable, for any monthly, annual or bi-annual Service fees as of the expiration of the annual, bi-annual or monthly billing cycle in which the termination is effective. If termination is due to Your default hereunder, You shall bear all costs of such termination, including any reasonable costs SwervePay incurs in closing Your account and applicable termination Fees. You agree to pay any and all costs incurred by SwervePay in enforcing Your compliance with this Section. Upon termination, Your rights to use the Services, and any other rights granted hereunder, shall immediately cease, and You shall destroy any copy of the materials licensed to You hereunder and referenced herein except for such copies that are in electronic format and cannot be readily destroyed without undue cost or effort, which copies may be retained only for archival purposes and not for commercial use. Each party will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except that any termination of this Agreement will not relieve SwervePay or Customer from any liability or obligations arising prior to the Termination Date, which shall survive any termination of this Agreement. To the extent permitted by applicable law, You agree that upon termination for any reason, we may delete all information relating to Your use of the Service. Notwithstanding the foregoing, Your obligations to pay all fees due through the Termination Date and terms relating to covenants, indemnity, warranties or terms which by their nature are required to survive contract termination will survive any termination of this Agreement.
- Bundled Services. In addition to the terms set forth above, if You purchase Services which are sold together as part of a “bundled” package of services, any termination relating to such bundle will terminate all SwervePay Services included in such bundle. In such cases we may, in our sole discretion and subject to Your agreeing to be bound by the applicable agreement(s) and to pay the applicable fees, allow You to convert certain Services included in the bundled services to stand-alone Services. Notwithstanding the above, termination of the Services will terminate any add-on services.
- Reinstatement of Services. If Services are suspended or terminated by SwervePay due to lack of payment by Customer, reinstatement of Services shall be subject to Customer paying SwervePay (i) new set-up fees, at SwervePay’s then-current rates; and (ii) as applicable, all past due annual or monthly fees and Transaction Fees and all interest thereon at the Agreement Interest Rate (unless waived by SwervePay).
- Data Portability. After the Termination Date, SwervePay, upon written request from You, may, at it its option and only if practicable, provide Your new acquiring bank or payment service provider (“Data Recipient”), as applicable, with any available credit card information relating to Your Customers, subject to the following conditions: (i) You must provide us with proof that the Data Recipient is in compliance with the PCI-DSS requirements (level 1 PCI compliant) by giving us a certificate or report on compliance with the Association PCI-DSS requirements from a qualified provider and any other information reasonably requested by us; (ii) the transfer of such information is compliant with the latest version of the PCI-DSS requirements; and (iii) the transfer of such information is allowed under the applicable Card Issuer Rules, and any applicable laws, rules or regulations. You shall indemnify, defend, and hold harmless SwervePay from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorney’s fees) we suffer or incur arising out of or in connection with the transfer of any data to a Data Recipient.
Confidentiality
- Confidential Information. “Confidential Information” means any confidential, trade secret or proprietary information (which may be business, financial or technical information) disclosed by one party to the other under this Agreement that is marked confidential or if disclosed orally designated as confidential at the time of disclosure or that should be reasonably understood to be confidential. All source code and the terms of any Customer Agreement will be considered Confidential Information.
- Confidentiality Obligations. Each party (i) shall not disclose to any third-party or use any Confidential Information disclosed to it by the other except as expressly permitted by these TOS or a Customer Agreement and for purposes of performing the Services, and (ii) shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance. Each party further agrees to use the other party’s Confidential Information only for the purpose of its performance of the Services. In addition, the receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects which embody Confidential Information, and which are provided to the receiving party hereunder.
- Limitation of Confidentiality. The confidentiality obligations set forth in this Section (“Confidentiality Obligations”) above do not apply to information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information, (iv) is disclosed with the written approval of the disclosing party, or (v) is disclosed five (5) years from the effective date of termination or expiration of this Agreement.
- Exceptions to Confidentiality. Notwithstanding the Confidentiality Obligations set forth above, each party may disclose Confidential Information of the other party (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or (ii) on a “need-to-know” basis under an obligation of confidentiality substantially similar in all material respects to the Confidentiality Obligations to its legal counsel, accountants, contractors, consultants, banks and other current or potential financing sources (including investors).
Miscellaneous
- Third-Party Services. You may be made aware of services, products, offers and promotions provided by third-parties, and not by SwervePay (“Third-Party Services”). If You elect to use Third-Party Services, You are solely responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing any Third-Party Services. You authorize us to use and disclose Your contact information, including name and address, for the purpose of making the Third-Party Services You select available to You. You agree that the third-party is solely responsible for the performance of the Third-Party Services.
- Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder, except for Customer’s payment obligations hereunder, due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this Section shall give the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof, and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided, however, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, either party may immediately terminate the Agreement.
- Entire Agreement and Modification. Except for a valid Customer Agreement attached hereto or any other written agreement signed by both of us, the terms in this Agreement constitute the entire agreement between SwervePay and You regarding its subject matter and its terms supersede any prior or simultaneous agreement, terms, negotiations, whether written or oral, or whether established by custom, practice, policy or precedent, between the parties hereto. Except as otherwise provided for herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties herein. You acknowledge and agree that in the event a purchase order (“PO”) contains additional terms, provisions or language (“PO Terms”), those PO Terms shall be null and void unless accepted in writing by SwervePay pursuant to a Customer Agreement.
- Severability. In the event that any provision of these TOS or a Customer Agreement is unenforceable or invalid such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
- No Assignment. Customer may not assign any rights or obligations under these TOS, to the Services, or any Customer Agreement without the prior written consent of SwervePay. SwervePay may assign its rights, obligations or duties regarding the Services, these TOS or any Customer Agreement upon prior written notice to You.
- Governing Law and Jurisdiction. These TOS, the Services and each Customer Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without reference to its conflicts of laws principles. Each party consents to the exclusive venue and jurisdiction of the competent state and/or federal courts in Chicago, Illinois, for any dispute arising out of or related to this Agreement, with venue to be laid in the appropriate courthouse in Chicago, Illinois. The parties acknowledge and agree that this Agreement is made and performed in Chicago, Illinois. THE PARTIES HEREBY WAIVE ANY RIGHT TO JURY TRIAL WITH RESPECT TO ANY ACTION BROUGHT IN CONNECTION WITH THIS AGREEMENT. For avoidance of doubt, the application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
- Export Restrictions. You acknowledge and agree that You shall not import, export, or re-export directly or indirectly, any commodity, including Your products incorporating or using any SwervePay products or Services in violation of the laws and regulations of any applicable jurisdiction. The Services are subject to the U.S. export controls regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII). You will not export or re-export the Services, or portion thereof, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end user, or to any end user who You know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons.
- Notices. Except as otherwise expressly stated in this Agreement, all notices to SwervePay shall be in writing and delivered, via courier, commercial carrier or certified or registered mail (in each case with delivery confirmation), to SwervePay at its official corporate address, or via email (with proof of transmission) to the authorized representative identified in the applicable Customer Agreement. All notices to You shall be delivered to Your mailing address or e-mail address as provided by You in Your account information, as updated by You pursuant these TOS. Unless You choose to opt-out of receiving marketing notices, You authorize SwervePay to notify You as our customer, via commercial e-mails, telephone calls and other means of communication, of information that we deem is of potential interest to You, including without limitation communications describing upgrades, new products and services or other information pertaining to the Services or other SwervePay offerings relating to Internet security or to payment services. Notwithstanding the above, You shall not have the right to opt-out of service or support notices relating to the Services, including without limitation, notices of service modifications, security, performance issues or technical difficulties.
- Headings. The section headings appearing in these TOS or any Customer Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
- Independent Contractors. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
- Non-Disparagement; Publicity. In consideration of the Services and payments received therefor, neither party will disparage the other party or the other party’s trademarks, websites, products or services, or display any such items in a derogatory or negative manner on any website or in any public forum or press release. Unless otherwise stated herein, You shall not issue a press release or otherwise advertise, make a public statement or disclose to any third-party information pertaining to the parties’ relationship, the existence or terms of these TOS or any Customer Agreement, the Services and any underlying transactions between SwervePay and You, or referring to the other party in relation to Services without the SwervePay’s prior written approval.
- Costs, Legal Expenses. Except as expressly stated in a Customer Agreement, each party shall be solely responsible for the costs and expenses of performing its obligations hereunder. In the event of a dispute arising from or related to the Services, these TOS or a Customer Agreement, which results in litigation or any other proceeding (“Litigation”) the prevailing party in such Litigation shall recover from the other its costs, expenses and reasonable attorney’s fees in connection with such litigation or other proceeding.
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Effective April 20, 2020 to April 21, 2020
DownloadTable of Contents
SwervePay General Terms of Services for All Services
UNLESS OTHERWISE EXPRESSLY AGREED IN AN AUTHORIZED WRITTEN AGREEMENT, THESE TERMS OF SERVICE (“TOS”) APPLY TO ALL SERVICES DELIVERED BY OR RECEIVED FROM SWERVEPAY FOR ANY MERCHANT OR CUSTOMER. THESE TOS ARE INCORPORATED BY REFERENCE INTO EACH AND EVERY AGREEMENT BETWEEN SWERVEPAY AND EACH PURCHASE, CONSUMER, OR OTHER USER OF ITS SERVICES. IT CONSTITUTES A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND SWERVEPAY, LLC. YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE AGREEMENT. BY USING ANY OF OUR SERVICES, YOU ACCEPT THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, PROMPTLY DISCONTINUE USE OF THE SERVICES.
In these TOS, “Customer,” “You” and “Your” refer to each customer or sub-merchant and its designated agents, including Your administrative contact, employees, officers, directors, agents, Affiliates, successors and assigns, and “SwervePay,” “we,” “us” and “our” refer collectively to SwervePay, LLC, an Illinois limited liability company, and its Members, officers, directors, employees, agents, affiliates, subsidiaries (including, but not limited to SwervePay Auto, LLC, SwervePay Finance, LLC and SwervePay Health, LLC), successors and/or assigns. These TOS explains our obligations to You, and Your obligations to us in relation to the service(s) You purchase, use or otherwise acquire from us (“Services”). By using any Services, You agree to establish an account with us for such Services. When You use Your account or permit someone else to use Your account to purchase or otherwise acquire access to any SwervePay Services or to modify or cancel Your Services (even if we were not notified of such authorization), this Agreement as amended covers any such service or actions. Additionally, You agree that the administrative contact for any Services provided to You is Your agent with full authority to act on Your behalf with respect to such Services, as permitted by the Services and related documentation, including (but not limited to) the authority to terminate, transfer (where transfer is permitted by the Agreement), or modify such Services, or purchase additional services. Any acceptance of Your application(s) or requests for our Services and the performance of our Services will be deemed to occur at our offices in Chicago, Illinois.
Important Notice Concerning Bundled Services: If You purchase separate SwervePay Services that are sold together as a “bundled” package, as opposed to Your purchasing such services separately, termination of any part of the Services may result in termination of all SwervePay Services provided as part of the bundled package unless arrangements are made to pay for the Services separately.
Definitions
“Affiliate(s)” means a person or entity controlled by or under common control with another person or entity, including, without limitation, as the term “affiliate” is construed under Rule 405 promulgated under the Securities Act of 1933 as amended.
“Customer Agreement(s)” means any agreement for Services between SwervePay and a Customer, each of which shall and hereby does incorporate these TOS by reference except as otherwise expressly agreed in such agreement.
“Card Issuer” means, as applicable, any of Visa, MasterCard, Discover, American Express, any ATM or debit or gift card network, or any other financial service card organizations, with two or more of such organizations hereinafter sometimes collectively referred to as “Card Issuers” and as to each Card Issuer, each such card issued by it, a “Card” and each holder or owner of a Card being a “Cardholder” or “Customer.”
“Card Organization Rules” means the rules imposed from time to time by each Card Issuer intended to govern the usage of its network and services.
“Chargeback” means a challenge to a payment that a Customer or Cardholder files directly with his, her or its Card Issuer, bank or other similar party.
“Customer Data” means any information received from a Cardholder or Customer used in connection with the Services.
“Financial Institution” means banks or financial institutions having business relationships with one or more Financial Processors that have agreed to evaluate and provide merchant accounts and payment authorization services to merchants.
“Financial Processor” means an entity with which SwervePay has established a relationship that performs the back-end authorization and processing of Transactions between the Customer’s Financial Institution and the Cardholder’s bank.
“Services” means any services used by Customer, including merchant services, payment services, and services involving Software and any add-on or additional services requested or specifically described in an agreement. Current descriptions of SwervePay’s Services are available at www.swervepay.com.
“Software” means the object code version of SwervePay’s client software, HTML code, application programming interfaces (“APIs”), related documentation and other client software or code which SwervePay may provide to Customer, including updates, to enable SwervePay to provide the Services to Customer. Unless otherwise specified, Software shall not include any source code. The Software is proprietary to SwervePay and is licensed to Customer pursuant to these TOS, and subject strictly to those terms and restrictions.
“Management Web Site” means SwervePay’s online account management tools for Your use of the Services.
“Swipe Device” means a device, which if purchased or required for Your use of the Services, is capable of receiving information from a Card for payment processing, including via magnetic swipe, chip-reader, or other means. Once Your Customer Account is approved, and if purchased or required for Your account, a Swipe Device will be sent to You or acquired by You for use at the address provided. SwervePay does not warrant that the swipe device or the Services will be compatible with Your computer, mobile Device or third-party carrier. Your use of the Swipe Device and the Services may also be subject to the terms of Your mobile device manufacturer and Your carrier. We shall not be responsible for any damages caused by defects associated with any Swipe Devices used by You with respect to Your business or any hacking, or other unauthorized use, of any of such Swipe Devices.
“Transaction” means a transfer of funds between You and a third-party using the Services, including information related to the purchase of goods and services from Customer by a third-party, such as any of its customers, clients, patients, or consumers of its products and/or services. Specifically, a Transaction is an authorization, delayed capture, sale, void, voice authorization or credit data transmission between SwervePay and its back-end processors in connection with the Services.
Customer Obligations
General Service Requirements. Customer shall be solely responsible for the following:
- Accuracy of Information Provided. You must provide accurate and complete information to us when applying for Your Customer Account. If Your request to open a Customer Account is approved, we may request additional information from You at any time. You shall maintain and promptly update such information if it should change.
- Customer Websites. Customer is responsible for establishing, hosting and maintenance of its website(s) and its connection to the internet (“Customer Website(s)”), fulfilling all orders for products and services sold by merchant to its users on the merchant website(s) or otherwise, including without limitation transmitting merchant’s registration information and transaction data to SwervePay servers or via the SwervePay Management Website and ensuring that any data stored or transmitted by merchant in conjunction with the Services and for enrollment for the Services is accurate, complete and in the form as requested by SwervePay, is securely collected and is not corrupted due to merchant’s systems. Customer is also responsible for reviewing the transactions in its account on a regular basis and notifying SwervePay promptly of unauthorized activity through its account.
- Banking. Customer is responsible for establishing and maintaining a commercial banking relationship and account with one or more Financial Institutions, for purposes of receiving the Services (“Account”). The terms of such relationship shall be determined solely by Customer and the Financial Institution.
- Access. Customer is responsible for keeping its access credentials, including usernames, user IDs, passwords and the like, confidential. Customer shall notify SwervePay immediately upon learning of any unauthorized use of its username or password. Customer shall be solely responsible for (i) updating its passwords for access to the Services periodically, and (ii) creating passwords that are reasonably “strong” under the circumstances, in accordance with SwervePay’s requirements. A “strong” password is at least six characters long, does not contain all or part of the user’s account name, and contains at least three of the four following categories of characters: uppercase characters, lowercase characters, base 10 digits, and symbols found on the keyboard (such as !, @, #). Strong passwords should be generated in such a way that knowledge of one does not lead to knowledge of another.
- Business Practices. Customer is responsible for maintaining commercially reasonable business practices in conjunction with use of the Services, collecting, storing and transmitting its customer data in a secure manner and protecting the privacy of its customer data. Customer shall comply with SwervePay’s requests for reasonable action on Customer’s part, to the extent necessary, to maintain security and integrity of the Services.
- Computing. Customer is responsible for updating to the most current Software version and security updates and patches necessary to properly operate the Services and keeping all Customer enrollment and payment information current and updated on the Management Web Site; and
- Compliance. Customer agrees, and hereby represents and warrants that Customer shall (a) use the Services in accordance with the applicable user guides and other documentation provided by SwervePay from time to time; and (b) not use or permit others to use information obtained through the use of the Services for any purpose other than in conjunction with the Services and in a manner described in the documentation for the Services.
Honoring Cards. Whenever possible, You will identify the person presenting a Card and purporting to be a person authorized to use a Card and check the expiration date and signature on each Card. You will not honor a Card if the Card has expired or if You determine or suspect that the account number on the Card does not match the account number on the Card’s magnetic stripe or the account number is listed on a current Electronic Warning Bulletin file. You are responsible for ensuring that the Cardholder understands that You are responsible for the transaction, including the goods or services that are the subject of the transaction. In addition, You are solely responsible for all customer service issues relating to Your goods or services, including pricing, fulfillment, order cancellation, returns, refunds and adjustments, warranty, and support. You will not add any amount to the posted price of goods or services You offer as a condition of paying with a Card that is not consistent with the Card Issuer Rules and laws. You will properly disclose to each Cardholder that is or may be used in connection with any of the transactions subject to this Agreement, at the time of transaction, any limitation You have on accepting returned merchandise. Your return policy must be in accordance with the Card Issuer Rules. If Your refund policy prohibits returns or is unsatisfactory to the Cardholder, You may still receive a Chargeback relating to such transactions. You agree to make a written receipt available to the Cardholder for any transaction. You may provide the Cardholder the option to decline a written receipt. You may also offer electronic receipts delivered by SMS or e-mail to the Cardholder.
Returns. You agree to process returns of, and provide refunds and adjustments for, Your goods or services through Your Customer Account in accordance with these TOS, any Customer Agreement, each Vendor Processor’s Rules and applicable Card Issuer Rules.
Restrictions on Use of Services. In connection with the Services, You will comply with all Payment Card Industry Data Security Standard (“PCI-DSS”) requirements and consent to our Acceptable Use Policy, which is available at www.swervepay.com: You also agree that You will (a) not send SMS receipts to customers who have expressly refused delivery of a receipt in that manner; (b) comply with all applicable laws and regulations and all requirements of: (i) Card Issuers applicable to merchants; and (ii) all SwervePay Processors; (c) maintain the security of account login information You receive as part of Your use of the Services; (d) if You lose Your computer or mobile device, or You have reason to believe that Your account is no longer secure, You will immediately notify us; (e) not accept payments in connection with any illegal activity, or any activity that is inconsistent with Your type of business or any activity prohibited by the rules of Your Card Issuer.
Compliance With Law. You may only use the Services in compliance with all laws, rules, and regulations applicable to the use of the Services. We may choose not to authorize or settle any transaction submitted to SwervePay if we believe the transaction is in violation of these TOS, the applicable Customer Agreement(s) or may cause harm to You, us, or our Processors.
Processing Errors. You will promptly notify us of any errors within ten (10) days after the date of the asserted error or missing transaction(s). If You do not notify us within the ten (10)-day period, we shall not be liable for, nor obligated to investigate, correct, such asserted error and You agree that all claims related to such error are waived. If we discover processing errors, we will attempt to rectify those processing errors efficiently.
Wireless Service Providers. The Services may utilize SMS messages delivered through wireless service providers, such as AT&T, Sprint, Verizon, etc. You acknowledge that any SMS message goes through Your and the message recipient’s wireless service provider’s systems. The privacy statement of each associated wireless service provider applies as the message passes through those systems. As a requirement to permit usage of SMS systems some wireless service providers may require that we disclose to them information about users of the Services and the nature of business to be conducted. In this situation the information will be used to ensure legitimate use of the SMS systems and not for marketing purposes. You acknowledge and agree that we may provide information about You to wireless service providers as described above. You may upload or enter certain data from Your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You may be made aware of or offered services, features, products, applications, online communities, or promotions provided by us or our affiliates. Installing any of our applications or Software grants us the right to send the identifiers for Your mobile device and Your Customers to third-parties for the use of advertising purposes. You are responsible for securely managing access to Your data and to the Services. You agree to be bound by our privacy policy, as it may be amended from time to time in accordance with its terms or these TOS.
SwervePay's Obligations
Services. Subject to the terms in this Agreement, SwervePay agrees to (i) provide to Customer the Services for which Customer enrolls and pays the applicable fees, either upon request or pursuant to a Customer Agreement, including without limitation the transmission of Transaction information to Financial Processors, and (ii) provide Customer with access to standardized reports regarding Customer’s Transactions processed using the Services and certain reporting tools to assist Customer in accounting activities. SwervePay hereby grants to Customer the right to access and use the Services in accordance with these TOS and any applicable Customer Agreement. SwervePay is not bound by nor should Customer rely on any representation by (i) any agent, representative or employee of any third-party referring or relating to the Services, including Your application or request for them; or in (ii) information posted on our Website of a general informational nature.
Modification of Terms; Changes to Services. Except as otherwise provided in a Customer Agreement, Customer agrees that SwervePay may: (a) revise, amend, update or otherwise change these TOS, including without limitation modifying the service fees or payment terms; and/or (b) revise, amend, update or otherwise change or terminate any part of the Services at any time. Any such revision or change will be binding and effective either, at SwervePay’s sole discretion, thirty (30) days after posting a revision of these TOS on the SwervePay Management Web Site, or upon electronic or written notification to You. You agree to periodically review the Management Web Site, including the current version of this Agreement available on the Management Web Site, to be aware of any such revisions. If You do not agree with any revision to the Agreement, You may terminate this Agreement at any time by providing us with thirty (30) days’ prior written notice. Notice of Your termination will be effective thirty (30) calendar days after receipt and processing by us. Any fees paid by You if You terminate Your Agreement with us are nonrefundable, except as otherwise expressly stated herein, but You will not incur any additional fees due to such termination. By continuing to use SwervePay Services after any revision to this Agreement or change in Services, You agree to abide by and be bound by any such revisions or changes. No non-executive employee, contractor, agent or representative of SwervePay is authorized to alter or amend the terms and conditions of these TOS.
Secure Transactions. SwervePay has implemented and will maintain security systems for the transmission of Customer’s Transactions, consisting of encryption and “firewall” technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet. SwervePay does not guarantee the security of the Services or Transaction data, and SwervePay will not be responsible in the event of any infiltration of its security systems or other breach of Security of Your data or systems or Customer data or systems, provided that SwervePay has used commercially reasonable efforts to prevent any such infiltration. Customer further acknowledges and agrees that Customer, and not SwervePay, is responsible for the security of Transaction data or information or any other information stored on Customer’s servers, and that SwervePay is not responsible for any other party’s servers (other than subcontractors of SwervePay solely to the extent SwervePay is liable for its own actions hereunder).
Technical Support for Services. SwervePay shall provide the technical support services to Customer, if any, pursuant the support package, if any, selected by Customer in a Customer Agreement. SwervePay’s then-current, standard technical support descriptions for Services shall be available at www.swervepay.com.
Proprietary Rights, Licenses, Restrictions
SwervePay IP. Except as otherwise set forth herein, all right, title and interest in and to: (i) all registered and unregistered trademarks, service marks and logos; (ii) all patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) all trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) all registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property (“IP”), proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services identified herein (“SwervePay IP”) are owned by SwervePay Services or its licensors, and You agree to make no claim of interest in or ownership of any such SwervePay IP. You acknowledge that no title to the SwervePay IP is transferred to You, and that You do not obtain any rights, express or implied, in the SwervePay Services or its licensors’ services, other than the rights expressly granted in this Agreement. To the extent that You create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to You, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by SwervePay and all existing and future copyright and other right, title and interest in and to each such Derivative Work, are assigned to, and shall automatically vest in, SwervePay, and to cooperate with SwervePay in connection with any actions by it to establish its rights in the same. SwervePay shall have no obligation to grant You any right in any such Derivative Work. Except to the extent permitted by applicable law, Customer shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Services or any components thereof, or otherwise apply any procedure or process to the Services or components thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings or any algorithm, data, process, procedure or other information contained therein. Customer shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Services or components thereof.
Limited License for Software and Services. Unless otherwise expressly provided in a Customer Agreement, SwervePay grants Customer a personal, limited, non-exclusive, non-transferable license, during such time that You satisfy the conditions set forth in each of Your Customer Agreement(s) and these TOS, to electronically access and use the Services solely for the purpose described herein and in any Customer Agreement. Except as expressly allowed herein, a Customer Agreement or by applicable law, You are not permitted to do any of the following and shall not allow any third-party to do any of the following: (i) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way any components of the Services; (ii) permit any third-party to benefit from the use or functionality of the Services via a rental, lease, timesharing, service bureau, or other arrangement; (iii) transfer any of the rights granted to You under any Customer Agreement or these TOS; (iv) work around any technical limitations in the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer the any component of Services except as otherwise permitted by applicable law; (v) perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or the use of the Services by our other licensees or customers; or (vi) export the Services, directly or indirectly. We reserve all rights not expressly granted to You in these TOS or a Customer Agreement. Components of the Services are protected by intellectual property laws, including international, U.S. federal and state laws. SwervePay and its licensors, collectively (as their respective interests may appear) own the title, copyright, and other worldwide intellectual property rights in the Services and all copies of the Services and any Software. Neither any Customer Agreement nor these TOS: (i) grant You any rights to our trademarks or service marks or (ii) limit any rights that we may have under trade secret, copyright, patent or other laws, domestic or abroad.
Customer Data. All “Customer Data” provided by You or any of Your Customers in the course of a Transaction shall be owned by You or Your Customer (subject to Your right to make the grants in this Section 3). You hereby grant us a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display the Customer Data for the purposes of (i) providing and improving the Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymised and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and (iv) any other purpose for which consent has been provided by the Customer.
Privacy and Security
SwervePay Privacy Polices. Our privacy statement for the Services is located on our Website at https://www.SwervePay.com and is incorporated herein by reference, as it is applicable to the Services and each Customer Agreement. The privacy statement sets forth Your and our rights and responsibilities with regard to Your personal information. You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Website. You agree to monitor our Website periodically to review such revisions. By using our Services after modifications to the privacy statement, You have agreed to these modifications. You acknowledge that if You do not agree to any such modification, You may terminate this Agreement.
Cardholder Information. You shall keep all Customer Data confidential and secure. You shall not disclose to any third-party any Cardholder account information or other personal information except in connection with the Services and in accordance with the Card Organization Rules or applicable law (including but not limited as required under the Health Insurance Portability and Accountability Act or “HIPAA”). You must keep all Cardholder information in a secure manner to prevent disclosure to unauthorized parties. You may not disclose or distribute any such information to a third-party or use the information for marketing purposes unless You receive the express consent of the user.
Use of Data. Customer acknowledges and agrees that in the course of providing the Services, SwervePay will capture certain transaction and user information (collectively, the “Data”). Customer agrees to provide to SwervePay, and SwervePay shall capture, only the Data that is required by the Software and is necessary for SwervePay to provide the Services. SwervePay agrees to use Data in its personally identifiable form only as necessary to complete the requested transaction. SwervePay shall not disclose Data to third-parties or use the Data, except that SwervePay shall have the rights: (i) to use the Data as necessary to perform the Services pursuant to these TOS or contemplated in a Customer Agreement (including distributing the Data to third-parties providing services requested by Customer); (ii) to maintain the Data as long as necessary, as required by law or as used internally for record keeping, internal reporting, and support purposes; (iii) to compile and disclose Data in the aggregate where individual merchant Data is not identifiable, including without limitation, calculating merchant averages by region or industry; and (iv) to provide the Data as required by law or court order, or to defend SwervePay’s rights in a legal dispute. You represent and warrant that You have provided notice to, and obtained consent from, any third-party individuals whose personal Data You supply to us as part of our services with regard to: (i) the purposes for which such third-party’s personal Data has been collected, (ii) the intended recipients or categories of recipients of the third-party’s personal Data, (iii) which parts of the third-party’s Data are obligatory and which parts, if any, are voluntary; and (iv) how the third-party can access and, if necessary, rectify the data You hold about them. You further agree to provide such notice and obtain such consent with regard to any third-party personal Data You supply to us in the future. We are not responsible for any consequences resulting from Your failure to provide notice or receive consent from such persons or entities nor for Your providing outdated, incomplete or inaccurate information.
PCI-DSS Requirements. While SwervePay and/or our Affiliates use security and encryption features to ensure the security and safety of Your personal information and that of Your Customers, SwervePay cannot absolutely guarantee the security of Your personal information from unauthorized access, loss or disclosure by third-parties. To ensure the highest level of security You agree to comply with our Acceptable Use Policy, including the PCI-DSS requirements and You represent and warrant that, while using any Services: (a) You are, and shall remain, in full compliance with all laws, statutes and federal and/or state regulations, as well as the Rules as may be applicable to You, Your business and any Card transaction; (c) You (and any outside agent that You may utilize to submit Transactions to SwervePay) comply and will comply with all our Acceptable Use Policy and all PCI-DSS requirements and You hereby agree to pay any fines and penalties that may be assessed by any Card Issuer as a result of Your non-compliance with PCI-DSS requirements, any data breaches, or by Your failure to accurately validate its compliance. You will review and monitor the requirements at http://www.visa.com/CISP, and http://www.pcisecuritystandards.org in order to determine the timeframes and mandates for compliance under PCI-DSS requirements. Your obligations to do so continue through the later of (y) the Termination Date or the (z) date You cease using all Services. You acknowledge and understand that You may be prohibited from participating in Card Issuer programs if it is determined that You are non-compliant.
Fees, Accounts and Payment Terms
Fees. As consideration for the Services, You agree to pay SwervePay the applicable service(s) fees set forth in an Exhibit A, or as otherwise provided by SwervePay in each Customer Agreement in force and effect, at the time of Your selection (and as it may be amended from time to time), or, if applicable, upon receipt of Your invoice from SwervePay. Should Customer wish to add Services, such addition shall be made by an additional Exhibit A either by written agreement signed by SwervePay and Customer or by e-mail from one party to the other acknowledged by reply e-mail. Fixed monthly fees are charged monthly in advance. Charges that are based on usage, such as text messages or transaction fees, are billed as soon as practicable following the end of the month. No objection to charges will be valid if not provided by notice to SwervePay within thirty (30) days of the date of the applicable invoice or charge by SwervePay. SwervePay will investigate such charges, which shall remain due and payable (and not subject to set off or deduction) until such point in time, if any, that SwervePay advises Customer to the contrary. Customer agrees to an automatic debit to ACH to settle billings; there shall be no separate invoice sent. SwervePay shall have the right from time to time to increase the prices called for on Exhibit A on thirty (30) days’ prior notice to Customer (either by e-mail or written notice), which shall be effective should Customer not object to such price increase within such thirty (30) day period; should customer object to such price increase on a timely basis, then at SwervePay’s option, to be delivered in writing or by e-mail, such price increase shall be rescinded retroactive the original notification, subject to SwervePay’s right to terminate this Agreement as set forth below.
Payments; Refunds; Pre-Payments. You are solely responsible for the credit card or Direct Debit (“Payment Method”) account information You provide to SwervePay and must promptly inform SwervePay of any changes thereto (e.g., change of expiration date or account number). Changes should be communicated to SwervePay by entering the updated information through the SwervePay tools or contacting SwervePay customer support. All payments shall be made in U.S. dollars. All fees are non-refundable unless otherwise explicitly stated in this Agreement. If we do issue a refund, we will do so via the Payment Method used by You to pay for the Services being refunded. For additional services or add-on services, Customer shall either prepay SwervePay’s then-current annual prepaid fees, if available, or pay the then-current monthly fees for such services, in accordance with the applicable Customer Agreement. If Customer uses SwervePay add-on services that are subject to additional standard fees that are not prepaid at enrollment, then SwervePay shall either immediately charge Customer’s credit card or debit Customer’s DDR account, as applicable, for SwervePay’s then-current fees for such services or invoice Customer for such additional standard fees, and Customer shall pay such invoice immediately.
Taxes. Customer is solely responsible for collecting, reporting and remitting any taxes required to be collected, paid or withheld in connection with the Services (“Taxes”). SwervePay is not responsible to determine whether or not Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. If in a given calendar year You receive (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Vendor or its Vendor processor(s) is authorized to report annually to the Internal Revenue Service (“IRS”), as required by law, Your name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments You receive in a calendar year, and the total dollar amount of the payments You receive for each month in a calendar year. You agree to pay all Taxes (including value added, sales and other taxes (other than taxes based on SwervePay’s income)) related to the Services or payments made by You hereunder. All payments due to SwervePay shall be made without any deduction or withholding on account of any tax, duty, charge or penalty, except as required by law, in which case, the sum payable by a party in respect of which such deduction or withholding is to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, SwervePay receives and retains (free from any liability in respect thereof) a net sum equal to the sum it would have received but for such deduction or withholding being required. Set up fees, if any, will become payable on the applicable effective date for the applicable SwervePay Services. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less (the “Agreement Interest Rate”). Customer hereby authorizes us to charge Customer’s Payment Method for the fees due for the Services, and Customer shall provide to SwervePay proper authorization for purposes of allowing SwervePay to debit the applicable Customer account to collect fees due under these TOS and each Customer Agreement. All fees owed by Customer to third-parties (for example, Financial Institutions, Financial Processors and merchant account providers), are Customer’s sole responsibility and are not covered by the Services.
Overcharge Fee. Excluding merchant services, in the event You exceed the Transaction limit permitted for the applicable Services as provided in any Customer Agreement (“Excess Transaction”) in any month, Customer may be charged a monthly transaction fee (“Monthly Overcharge Fee”) to be determined by multiplying each Excess Transaction processed in that month by the corresponding Service’s Transaction Fee. The Monthly Excess Transaction Fee shall be invoiced or debited in accordance with the terms for Fees above.
Chargebacks. These terms apply to Chargebacks for merchant services:
- The amount of a transaction may be reversed or charged back to Your Customer Account (each a “Chargeback”) for reasons, including, but not limited to, any one of the following: (i) an invalid Card account is submitted by You; (ii) neither the Cardholder nor a person authorized by the Cardholder received the goods or services requested; (iii) the Cardholder disputes the quality of the goods or services received; (iv) the Cardholder never received a credit for a returned item or a cancelled order; (v) the Cardholder was charged incorrectly; (vi) the authorization code is invalid; (vii) the Card was expired or not effective; (viii) the transaction is disputed; (ix) the transaction is reversed by the Card Issuer, our Processor, or a financial institution for any reason; or (x) the transaction was not authorized.
- For any transaction that results in a Chargeback, we may withhold or cause to be withheld the Chargeback amount in the Reserve Account. You may be subject to a chargeback on sales for a minimum period of one hundred eighty (180) days from the date the sale was entered into the processing system. We may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by each applicable Vendor Processor from Your Customer Account, Your Reserve Account, if any, any proceeds due to You, or Your bank account. If You have pending Chargebacks or we reasonably believe that a Chargeback is likely, we may withhold or delay payments from Your Customer Account for the later of: (i) two hundred seventy (270) days following the Termination Date; (ii) one hundred eighty (180) days from Your last Chargeback; or (iii) thirty (30) days following Your delivery of written notification disputing the Chargeback in question and the basis therefor with appropriate documentation in accordance herewith. You agree to respond to all Chargebacks promptly. 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 together with interest computed at the Agreement Interest Rate on any unpaid Chargeback amounts You owe to us from time to time. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of SwervePay related to any efforts to collect any Customer Account deficit balances (including, but not limited to, Chargeback amounts) which remain unpaid by for more than thirty (30) days.
Customer Accounts.
- Deposit of Funds. Upon validation of Your Customer Account, Vendor or Vendor’s Processor(s) will deposit to Your Customer Account the amounts actually received by us for completed transactions submitted through the Services at the end of every business day unless otherwise agreed in Your Customer Agreement. Payouts to Your bank account will normally register within two (2) to three (3) business days. Each Transaction will be considered complete when SwervePay has received the funds and when such funds have been accepted by the designated bank or financial institution. We shall have the right to deduct from Your Sub-Customer Account: (i) following the end of each month during the term of this Agreement any Fees owing from You to us or any of our Processors; and (ii) immediately at any time, any Chargebacks, penalties or other Fees owing from You to us or any of our Processors. Should we need to conduct an investigation or resolve any dispute related to Your Sub-Customer Account (including but not limited to issues around possible prohibited transactions or other breaches of these TOS or any Customer Agreement, or applicable SwervePay, Processor or Card Issuer Rules), we may defer payout or restrict access to Your funds for as long as we deem necessary. We also may defer payout or restrict access to Your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
- Customer Account Activity. You are responsible for monitoring Your transactions and ensuring that our payments to You are correct. You agree to contact us immediately if You discover or become aware of an error or an unauthorized transaction on Your Customer Account. You must notify us of any errors in payments made to You within thirty (30) days of the error or unauthorized transaction. Your failure to notify us of any such errors within the applicable thirty (30)-day period will constitute a waiver of any right or claim to amounts owed to You. Further, You are responsible for reconciling all transactions with Your Customer Account and keeping permanent records of such transactions.
- Reserve Accounts. For the purpose of providing a source of funds to pay damages which SwervePay or our Processors may potentially suffer in connection with providing You Services, and to pay Fees, fines, Chargebacks or other amounts You may owe or be assessed by any processor, a separate reserve account (the “Reserve Account”) may be established from time to time by You, us or any of our Processors to secure Your current and/or future potential obligations as reasonably determined us or our Processor. The Reserve Account will be in an amount as reasonably determined to protect the present or future interests and may be raised, reduced or removed at any time, in our or our Processor’s sole discretion. If there are not sufficient funds in Your Reserve Account, You grant us the right of recoupment and set-off and may fund the Reserve Account from any funding source associated with Your Customer Account, including but not limited to any funds due to You for the Services or under any Customer Agreement or available in Your bank account. If, in our opinion, the Personal Property Securities Act 2009 enables us to improve our security interest over the Reserve Account, You agree to do all things necessary, including obtaining the appropriate authorizations and executing any document to effect such improvement.
Representations and Warranties; Disclaimers; Limitations of Liability
By SwervePay. SwervePay represents and warrants that: (a) it has all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (b) all corporate action on the part of SwervePay, its officers, board of directors and stockholders necessary for the performance of its obligations under this Agreement has been taken.
Limitations of Liability.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN A SERVICES AGREEMENT (AS RELATES TO THE SUBJECT MATTER THEREOF), OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, SWERVEPAY AND ITS LICENSORS, AS APPLICABLE, EXPRESSLY DISCLAIM EACH WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES OR SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- SWERVEPAY’S LIABILITY TO YOU RELATING TO THE SERVICES, WHETHER ARISING UNDER THESE TOS, A SERVICES AGREEMENT, OR OTHERWISE, IS LIMITED, AT SWERVEPAY’S OPTION, TO (a) REFUNDING THE PRICE OF THE SERVICES IN RESPECT OF WHICH THE LIABILITY AROSE OR (b) TO PROVIDING, REPLACING OR REPAIRING THOSE SERVICES, OR (c) PROVIDING THOSE SERVICES AGAIN IN A MANNER REASONABLY CALCULATED TO AVOID FUTURE LIABILITY.
- Customer acknowledges that SwervePay is not a financial or credit reporting institution. SwervePay is responsible only for providing data transmission to effect or direct certain payment authorizations for You and is not responsible for the results of any credit inquiry, the operation of websites of ISPs or Financial Institutions or the availability or performance of the Internet, or for any damages or costs You suffer or incur as a result of any instructions given, actions taken or omissions made by You, Your financial processor(s), Your Financial Institution or any ISP. IN NO EVENT WILL SWERVEPAY’S LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE) ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO SWERVEPAY BY YOU HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. IN NO EVENT WILL SWERVEPAY OR ITS LICENSORS HAVE ANY LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE) TO YOU OR ANY OTHER PARTY FOR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE REGARDING ANY LIMITED REMEDY. Notwithstanding the above, the limitations set forth above shall be enforceable to the maximum extent allowed by applicable law.
- YOU ACKNOWLEDGE THAT NEITHER SWERVEPAY NOR ITS LICENSORS HAVE REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY OR WITHOUT COMPROMISE OF THE SECURITY SYSTEMS RELATED TO THE SERVICES OR THAT ALL ERRORS WILL BE CORRECTED.
By Customer. You represent and warrant that You shall comply with all applicable privacy, consumer and other laws and regulations with respect to Your: (i) provision, use and disclosure of the Data, Cardholder information; (ii) dealings with the users, Cardholders or other parties providing the Data; and (iii) use of the Services. You also represent and warrant that that You are either (x) a legal resident of the United States, (y) a United States citizen, or (z) a business entity authorized to conduct business by the state in which it operates. The Services may only be used within the United States of America.
- Corporate and Other Entity Customers. If Customer is a corporation or corporate entity (which for purposes hereof shall include any limited liability company, limited partnership, limited liability partnership or other entity that limits the liability of its beneficial owners) You represent and warrant that: (i) You have all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (ii) all corporate action on the part of You, Your officers, board of directors, stockholders, partners or members necessary for the performance of Your obligations under this Agreement has been taken; (iii) this Agreement constitutes Your valid and legally binding obligation, enforceable against it in accordance with the terms hereof; (iv) You are in good standing in Your jurisdiction of incorporation or organization and are eligible to register and use the Services; (v) Your authorized representative(s) has read and understands the entire Agreement and, after doing so, You desire to be bound thereby, and You have been represented by counsel of Your own choosing; (vi) no representations of any kind or character have been made to induce You to execute and enter into any Agreement, these TOS, or to accept the Services; (vii) any sales transaction submitted by You will represent a bona fide sale by You; (viii) any sales transactions submitted by You will accurately describe the goods and/or services sold and delivered to a Customer; (ix) You will fulfill all of Your obligations to each customer for which You submit a transaction and will resolve any customer dispute or complaint directly with the purchaser; (x) except in the ordinary course of business, no sales transaction submitted by You through the Services will represent a sale to any principal, partner, proprietor, or owner of Your entity or any of Your other Affiliates; (xi) You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (xii) Your use of the Services will be in compliance with this Agreement; and (xiii) You agree to follow the applicable Card brand operating Rules and regulations.
- Individual or Non-Corporate Customers. If You are an individual or other non-corporate entity not covered by Section H.3(a) above, You represent that: (i) You are at least eighteen (18) years of age if an individual, or if an entity, all persons acting on Your behalf are at least eighteen (18) years of age; (ii) You are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (iii) the name You provided when You registered is Your name or business name under which You sell goods and services; (iv) each sales transaction submitted by You will represent a bona fide sale You made; (v) any sales transactions submitted by You will accurately describe the goods and/or services sold and delivered to a purchaser; (vi) You will fulfill all of Your obligations to each customer for which You submit a transaction and will resolve any customer dispute or complaint directly with the purchaser; (vii) You and all transactions initiated by You will comply with all federal, state, and local laws, rules, and regulations applicable to You and/or Your business, including any applicable tax laws and regulations; (viii) except in the ordinary course of business, no sales transaction submitted by You through the Services will represent a sale to any principal, partner, proprietor, or owner of Your entity or any of Your other Affiliates; (ix) You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (x) Your use of the Services will be in compliance with this Agreement; and (xi) You agree to follow the applicable Card Issuer operating Rules and regulations.
Indemnifications
Mutual Indemnifications. Either party to this Agreement (You, on the one hand, and SwervePay, on the other hand) will defend, indemnify, save and hold harmless the other party and the officers, directors, agents, Affiliates, distributors, franchisees and employees of the other party from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from the indemnifying party’s material breach of any duty, representation or warranty of any Customer Agreement or these TOS, as amended. An “Indemnified Party” party’s right to indemnification is conditioned upon the following: prompt written notice to the party obligated to provide indemnification (“Indemnifying Party”) of any claim, action or demand for which indemnity is sought; control of the investigation, preparation, defense and settlement thereof by the Indemnifying Party; and such reasonable cooperation by the indemnified part, at the Indemnifying Party’s request and expense, in the defense of the claim. The Indemnified Party shall have the right to participate in the defense of a claim by the indemnifying party with counsel of the Indemnified Party’s choice at the Indemnified Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry of any judgment that makes any admissions in the Indemnified Party’s name or imposes any liability upon the Indemnified Party.
Customer agrees not to use the Services in violation of any local, state or Federal laws, rules or regulations, or orders, including, but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”) and its related July 10, 2015 Omnibus Ruling, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its related Rules and Regulations, and agrees to indemnify, defend and hold SwervePay and any Affiliated Entity harmless from and against all Losses (defined below) that are incurred, suffered or paid, directly or indirectly, by any of them in connection with, arising out of or resulting from any claim alleging improper or illegal use of any of the Services provided to Customer or any of Customer’s clients by SwervePay or any Affiliated Entity, including but not limited to any claims arising from following the direction of Customer for communications to its clients as to frequency of sending messages by any medium, including but not limited to text, e-mail, facsimile or paper regarding any matter, including but not limited to past due sums, deposits for anticipated procedures, estimates of cost of procedures, appointment reminders, payment receipts or other communications. For purposes of this Section, indemnification of SwervePay and any Affiliated Entity includes, but is not limited to payment by Customer of any judgment, settlement, claim, penalties and costs, interest, reasonable attorneys’ fees and cost of defense, if SwervePay or any Affiliated Entity is named as a party to any action or suit related to delivery of communications to a Customer client or otherwise subject to this indemnification. In such an event, SwervePay and any Affiliated Entity shall have the option at any time of either being defended by Customer’s counsel or providing their own defense to the action (subject to regular monthly reimbursement from Customer for costs and fees incurred, regardless of the outcome of such action). For purposes of this Section: (i) “Losses” means any and all losses, liabilities, damages, penalties, obligations, awards, fines, deficiencies, demands, interest, costs and expenses (including reasonable attorneys’ fees, consultants’ fees and other professional fees and disbursements); and (ii) “Affiliated Entity” shall mean any “affiliate” of SwervePay (as such term is construed under Rule 405 promulgated under the Securities Act of 1933), as well as, without limitation, any independent contractor, business partner, solution extender, or service provider under contract with SwervePay that assists SwervePay in delivering any of the Services provided by SwervePay or any Affiliated Entity to Customer.
Term and Termination
Term; Renewal. These TOS and each applicable Customer Agreement shall become effective upon the later of (i) the date Customer accepts these TOS via Customer Agreement (the “Effective Date”), or (ii) the date You use any of the Services, if different; and will continue for the period indicated on an Exhibit A (“Initial Term”), unless terminated earlier or suspended according to the provisions of these TOS and the applicable Customer Agreement(s). Each Customer Agreement will thereafter automatically renew for successive twelve (12) month terms, unless either party gives the other party written or electronic notice, in accordance with the terms herein, of its intention not to renew the applicable Customer Agreement, at least thirty (30) days prior to the end of the then-current term or renewal term, unless termination is by SwervePay. Any renewal of Your Services is subject to our then-current terms and conditions, successful completion of any applicable authentication procedure, if any, and payment of all applicable Fees owing to us at the time of renewal. Additional payment terms may apply to the SwervePay Services You purchase, as set forth herein and in the applicable Schedules to this Agreement or any applicable Customer Agreement.
Suspension and Termination. Either party hereto may, at its option, and without notice, terminate the Services, effective immediately, should the other party hereto (i) admit in writing its inability to pay its debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (v) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (vi) have a decree entered against it by a court of competent jurisdiction appointing a receiver liquidate, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs.
- By Customer. Unless otherwise provided in a Customer Agreement, You may terminate the Services and any Customer Agreement upon prior thirty (30) days’ written notice to SwervePay by notifying SwervePay’s customer support electronically or in writing and following the instructions for cancellation prior to the end of the initial annual period or any annual renewal period. Subject to the above, SwervePay shall use commercially reasonable efforts to cancel the Services within seven (7) business days following such written notice from Customer. Customer shall be responsible for the payment of all fees due and payable through the effective date of termination. Termination requests for non-SwervePay, third-party services may not be made through SwervePay. Customer must instead contact such third-parties directly to cancel such services.
- By SwervePay. Notwithstanding the foregoing, SwervePay may suspend Customer’s access to the Services or terminate this Agreement as follows:
- Following ten (10) days’ prior electronic or written notice (such as an overdue invoice) if (a) Customer breaches the Agreement, (b) perpetrates fraud, (c) causes or fails to fix a security breach relating to the Services, (d) fails to comply with SwervePay’s best practices requirements for security management or to respond to an inquiry from SwervePay, concerning the accuracy or completeness of the information Customer is required to provide pursuant to this Agreement, (e) if SwervePay reasonably suspects fraudulent activity on Customer’s payment services account, (if such breach is not cured within such ten (10)-day period), (f) in the event that certain third-party licenses or access to third-party components of the Services are terminated, or (g) non-payment of invoice; or
- Immediately, without prior notice, if we reasonably believe: (a) Your breach compromises the security of the Services in any material fashion, (b) fraudulent Transactions are occurring on Your account, (c) Customer’s financial processor or Financial Institution with which Customer has a merchant account requires such termination or suspension or where continued breach of its Rules or contractual terms creates a risk of termination of such merchant account or of such entity doing business with SwervePay; or (d) You or a Transaction violates our Acceptable Use Policy or Rules.
Termination Date. The date upon which termination is effective shall be the “Termination Date.”
Effect of Termination.
- Cessation. SwervePay will cease providing the Services and cease charging Your Payment Method, if applicable, for any monthly, annual or bi-annual Service fees as of the expiration of the annual, bi-annual or monthly billing cycle in which the termination is effective. If termination is due to Your default hereunder, You shall bear all costs of such termination, including any reasonable costs SwervePay incurs in closing Your account and applicable termination Fees. You agree to pay any and all costs incurred by SwervePay in enforcing Your compliance with this Section. Upon termination, Your rights to use the Services, and any other rights granted hereunder, shall immediately cease, and You shall destroy any copy of the materials licensed to You hereunder and referenced herein except for such copies that are in electronic format and cannot be readily destroyed without undue cost or effort, which copies may be retained only for archival purposes and not for commercial use. Each party will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except that any termination of this Agreement will not relieve SwervePay or Customer from any liability or obligations arising prior to the Termination Date, which shall survive any termination of this Agreement. To the extent permitted by applicable law, You agree that upon termination for any reason, we may delete all information relating to Your use of the Service. Notwithstanding the foregoing, Your obligations to pay all fees due through the Termination Date and terms relating to covenants, indemnity, warranties or terms which by their nature are required to survive contract termination will survive any termination of this Agreement.
- Bundled Services. In addition to the terms set forth above, if You purchase Services which are sold together as part of a “bundled” package of services, any termination relating to such bundle will terminate all SwervePay Services included in such bundle. In such cases we may, in our sole discretion and subject to Your agreeing to be bound by the applicable agreement(s) and to pay the applicable fees, allow You to convert certain Services included in the bundled services to stand-alone Services. Notwithstanding the above, termination of the Services will terminate any add-on services.
- Reinstatement of Services. If Services are suspended or terminated by SwervePay due to lack of payment by Customer, reinstatement of Services shall be subject to Customer paying SwervePay (i) new set-up fees, at SwervePay’s then-current rates; and (ii) as applicable, all past due annual or monthly fees and Transaction Fees and all interest thereon at the Agreement Interest Rate (unless waived by SwervePay).
- Data Portability. After the Termination Date, SwervePay, upon written request from You, may, at it its option and only if practicable, provide Your new acquiring bank or payment service provider (“Data Recipient”), as applicable, with any available credit card information relating to Your Customers, subject to the following conditions: (i) You must provide us with proof that the Data Recipient is in compliance with the PCI-DSS requirements (level 1 PCI compliant) by giving us a certificate or report on compliance with the Association PCI-DSS requirements from a qualified provider and any other information reasonably requested by us; (ii) the transfer of such information is compliant with the latest version of the PCI-DSS requirements; and (iii) the transfer of such information is allowed under the applicable Card Issuer Rules, and any applicable laws, rules or regulations. You shall indemnify, defend, and hold harmless SwervePay from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorney’s fees) we suffer or incur arising out of or in connection with the transfer of any data to a Data Recipient.
Confidentiality
- Confidential Information. “Confidential Information” means any confidential, trade secret or proprietary information (which may be business, financial or technical information) disclosed by one party to the other under this Agreement that is marked confidential or if disclosed orally designated as confidential at the time of disclosure or that should be reasonably understood to be confidential. All source code and the terms of any Customer Agreement will be considered Confidential Information.
- Confidentiality Obligations. Each party (i) shall not disclose to any third-party or use any Confidential Information disclosed to it by the other except as expressly permitted by these TOS or a Customer Agreement and for purposes of performing the Services, and (ii) shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance. Each party further agrees to use the other party’s Confidential Information only for the purpose of its performance of the Services. In addition, the receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects which embody Confidential Information, and which are provided to the receiving party hereunder.
- Limitation of Confidentiality. The confidentiality obligations set forth in this Section (“Confidentiality Obligations”) above do not apply to information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information, (iv) is disclosed with the written approval of the disclosing party, or (v) is disclosed five (5) years from the effective date of termination or expiration of this Agreement.
- Exceptions to Confidentiality. Notwithstanding the Confidentiality Obligations set forth above, each party may disclose Confidential Information of the other party (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or (ii) on a “need-to-know” basis under an obligation of confidentiality substantially similar in all material respects to the Confidentiality Obligations to its legal counsel, accountants, contractors, consultants, banks and other current or potential financing sources (including investors).
Miscellaneous
- Third-Party Services. You may be made aware of services, products, offers and promotions provided by third-parties, and not by SwervePay (“Third-Party Services”). If You elect to use Third-Party Services, You are solely responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing any Third-Party Services. You authorize us to use and disclose Your contact information, including name and address, for the purpose of making the Third-Party Services You select available to You. You agree that the third-party is solely responsible for the performance of the Third-Party Services.
- Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder, except for Customer’s payment obligations hereunder, due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this Section shall give the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof, and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided, however, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, either party may immediately terminate the Agreement.
- Entire Agreement and Modification. Except for a valid Customer Agreement attached hereto or any other written agreement signed by both of us, the terms in this Agreement constitute the entire agreement between SwervePay and You regarding its subject matter and its terms supersede any prior or simultaneous agreement, terms, negotiations, whether written or oral, or whether established by custom, practice, policy or precedent, between the parties hereto. Except as otherwise provided for herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties herein. You acknowledge and agree that in the event a purchase order (“PO”) contains additional terms, provisions or language (“PO Terms”), those PO Terms shall be null and void unless accepted in writing by SwervePay pursuant to a Customer Agreement.
- Severability. In the event that any provision of these TOS or a Customer Agreement is unenforceable or invalid such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
- No Assignment. Customer may not assign any rights or obligations under these TOS, to the Services, or any Customer Agreement without the prior written consent of SwervePay. SwervePay may assign its rights, obligations or duties regarding the Services, these TOS or any Customer Agreement upon prior written notice to You.
- Governing Law and Jurisdiction. These TOS, the Services and each Customer Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without reference to its conflicts of laws principles. Each party consents to the exclusive venue and jurisdiction of the competent state and/or federal courts in Chicago, Illinois, for any dispute arising out of or related to this Agreement, with venue to be laid in the appropriate courthouse in Chicago, Illinois. The parties acknowledge and agree that this Agreement is made and performed in Chicago, Illinois. THE PARTIES HEREBY WAIVE ANY RIGHT TO JURY TRIAL WITH RESPECT TO ANY ACTION BROUGHT IN CONNECTION WITH THIS AGREEMENT. For avoidance of doubt, the application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
- Export Restrictions. You acknowledge and agree that You shall not import, export, or re-export directly or indirectly, any commodity, including Your products incorporating or using any SwervePay products or Services in violation of the laws and regulations of any applicable jurisdiction. The Services are subject to the U.S. export controls regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII). You will not export or re-export the Services, or portion thereof, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end user, or to any end user who You know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons.
- Notices. Except as otherwise expressly stated in this Agreement, all notices to SwervePay shall be in writing and delivered, via courier, commercial carrier or certified or registered mail (in each case with delivery confirmation), to SwervePay at its official corporate address, or via email (with proof of transmission) to the authorized representative identified in the applicable Customer Agreement. All notices to You shall be delivered to Your mailing address or e-mail address as provided by You in Your account information, as updated by You pursuant these TOS. Unless You choose to opt-out of receiving marketing notices, You authorize SwervePay to notify You as our customer, via commercial e-mails, telephone calls and other means of communication, of information that we deem is of potential interest to You, including without limitation communications describing upgrades, new products and services or other information pertaining to the Services or other SwervePay offerings relating to Internet security or to payment services. Notwithstanding the above, You shall not have the right to opt-out of service or support notices relating to the Services, including without limitation, notices of service modifications, security, performance issues or technical difficulties.
- Headings. The section headings appearing in these TOS or any Customer Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
- Independent Contractors. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
- Non-Disparagement; Publicity. In consideration of the Services and payments received therefor, neither party will disparage the other party or the other party’s trademarks, websites, products or services, or display any such items in a derogatory or negative manner on any website or in any public forum or press release. Unless otherwise stated herein, You shall not issue a press release or otherwise advertise, make a public statement or disclose to any third-party information pertaining to the parties’ relationship, the existence or terms of these TOS or any Customer Agreement, the Services and any underlying transactions between SwervePay and You, or referring to the other party in relation to Services without the SwervePay’s prior written approval.
- Costs, Legal Expenses. Except as expressly stated in a Customer Agreement, each party shall be solely responsible for the costs and expenses of performing its obligations hereunder. In the event of a dispute arising from or related to the Services, these TOS or a Customer Agreement, which results in litigation or any other proceeding (“Litigation”) the prevailing party in such Litigation shall recover from the other its costs, expenses and reasonable attorney’s fees in connection with such litigation or other proceeding.
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| Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
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Effective April 20, 2020 to April 20, 2020
DownloadTable of Contents
SwervePay General Terms of Services for All Services
UNLESS OTHERWISE EXPRESSLY AGREED IN AN AUTHORIZED WRITTEN AGREEMENT, THESE TERMS OF SERVICE (“TOS”) APPLY TO ALL SERVICES DELIVERED BY OR RECEIVED FROM SWERVEPAY FOR ANY MERCHANT OR CUSTOMER. THESE TOS ARE INCORPORATED BY REFERENCE INTO EACH AND EVERY AGREEMENT BETWEEN SWERVEPAY AND EACH PURCHASE, CONSUMER, OR OTHER USER OF ITS SERVICES. IT CONSTITUTES A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND SWERVEPAY, LLC. YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE AGREEMENT. BY USING ANY OF OUR SERVICES, YOU ACCEPT THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, PROMPTLY DISCONTINUE USE OF THE SERVICES.
In these TOS, “Customer,” “You” and “Your” refer to each customer or sub-merchant and its designated agents, including Your administrative contact, employees, officers, directors, agents, Affiliates, successors and assigns, and “SwervePay,” “we,” “us” and “our” refer collectively to SwervePay, LLC, an Illinois limited liability company, and its Members, officers, directors, employees, agents, affiliates, subsidiaries (including, but not limited to SwervePay Auto, LLC, SwervePay Finance, LLC and SwervePay Health, LLC), successors and/or assigns. These TOS explains our obligations to You, and Your obligations to us in relation to the service(s) You purchase, use or otherwise acquire from us (“Services”). By using any Services, You agree to establish an account with us for such Services. When You use Your account or permit someone else to use Your account to purchase or otherwise acquire access to any SwervePay Services or to modify or cancel Your Services (even if we were not notified of such authorization), this Agreement as amended covers any such service or actions. Additionally, You agree that the administrative contact for any Services provided to You is Your agent with full authority to act on Your behalf with respect to such Services, as permitted by the Services and related documentation, including (but not limited to) the authority to terminate, transfer (where transfer is permitted by the Agreement), or modify such Services, or purchase additional services. Any acceptance of Your application(s) or requests for our Services and the performance of our Services will be deemed to occur at our offices in Chicago, Illinois.
Important Notice Concerning Bundled Services: If You purchase separate SwervePay Services that are sold together as a “bundled” package, as opposed to Your purchasing such services separately, termination of any part of the Services may result in termination of all SwervePay Services provided as part of the bundled package unless arrangements are made to pay for the Services separately.
Definitions
“Affiliate(s)” means a person or entity controlled by or under common control with another person or entity, including, without limitation, as the term “affiliate” is construed under Rule 405 promulgated under the Securities Act of 1933 as amended.
“Customer Agreement(s)” means any agreement for Services between SwervePay and a Customer, each of which shall and hereby does incorporate these TOS by reference except as otherwise expressly agreed in such agreement.
“Card Issuer” means, as applicable, any of Visa, MasterCard, Discover, American Express, any ATM or debit or gift card network, or any other financial service card organizations, with two or more of such organizations hereinafter sometimes collectively referred to as “Card Issuers” and as to each Card Issuer, each such card issued by it, a “Card” and each holder or owner of a Card being a “Cardholder” or “Customer.”
“Card Organization Rules” means the rules imposed from time to time by each Card Issuer intended to govern the usage of its network and services.
“Chargeback” means a challenge to a payment that a Customer or Cardholder files directly with his, her or its Card Issuer, bank or other similar party.
“Customer Data” means any information received from a Cardholder or Customer used in connection with the Services.
“Financial Institution” means banks or financial institutions having business relationships with one or more Financial Processors that have agreed to evaluate and provide merchant accounts and payment authorization services to merchants.
“Financial Processor” means an entity with which SwervePay has established a relationship that performs the back-end authorization and processing of Transactions between the Customer’s Financial Institution and the Cardholder’s bank.
“Services” means any services used by Customer, including merchant services, payment services, and services involving Software and any add-on or additional services requested or specifically described in an agreement. Current descriptions of SwervePay’s Services are available at www.swervepay.com.
“Software” means the object code version of SwervePay’s client software, HTML code, application programming interfaces (“APIs”), related documentation and other client software or code which SwervePay may provide to Customer, including updates, to enable SwervePay to provide the Services to Customer. Unless otherwise specified, Software shall not include any source code. The Software is proprietary to SwervePay and is licensed to Customer pursuant to these TOS, and subject strictly to those terms and restrictions.
“Management Web Site” means SwervePay’s online account management tools for Your use of the Services.
“Swipe Device” means a device, which if purchased or required for Your use of the Services, is capable of receiving information from a Card for payment processing, including via magnetic swipe, chip-reader, or other means. Once Your Customer Account is approved, and if purchased or required for Your account, a Swipe Device will be sent to You or acquired by You for use at the address provided. SwervePay does not warrant that the swipe device or the Services will be compatible with Your computer, mobile Device or third-party carrier. Your use of the Swipe Device and the Services may also be subject to the terms of Your mobile device manufacturer and Your carrier. We shall not be responsible for any damages caused by defects associated with any Swipe Devices used by You with respect to Your business or any hacking, or other unauthorized use, of any of such Swipe Devices.
“Transaction” means a transfer of funds between You and a third-party using the Services, including information related to the purchase of goods and services from Customer by a third-party, such as any of its customers, clients, patients, or consumers of its products and/or services. Specifically, a Transaction is an authorization, delayed capture, sale, void, voice authorization or credit data transmission between SwervePay and its back-end processors in connection with the Services.
Customer Obligations
General Service Requirements. Customer shall be solely responsible for the following:
- Accuracy of Information Provided. You must provide accurate and complete information to us when applying for Your Customer Account. If Your request to open a Customer Account is approved, we may request additional information from You at any time. You shall maintain and promptly update such information if it should change.
- Customer Websites. Customer is responsible for establishing, hosting and maintenance of its website(s) and its connection to the internet (“Customer Website(s)”), fulfilling all orders for products and services sold by merchant to its users on the merchant website(s) or otherwise, including without limitation transmitting merchant’s registration information and transaction data to SwervePay servers or via the SwervePay Management Website and ensuring that any data stored or transmitted by merchant in conjunction with the Services and for enrollment for the Services is accurate, complete and in the form as requested by SwervePay, is securely collected and is not corrupted due to merchant’s systems. Customer is also responsible for reviewing the transactions in its account on a regular basis and notifying SwervePay promptly of unauthorized activity through its account.
- Banking. Customer is responsible for establishing and maintaining a commercial banking relationship and account with one or more Financial Institutions, for purposes of receiving the Services (“Account”). The terms of such relationship shall be determined solely by Customer and the Financial Institution.
- Access. Customer is responsible for keeping its access credentials, including usernames, user IDs, passwords and the like, confidential. Customer shall notify SwervePay immediately upon learning of any unauthorized use of its username or password. Customer shall be solely responsible for (i) updating its passwords for access to the Services periodically, and (ii) creating passwords that are reasonably “strong” under the circumstances, in accordance with SwervePay’s requirements. A “strong” password is at least six characters long, does not contain all or part of the user’s account name, and contains at least three of the four following categories of characters: uppercase characters, lowercase characters, base 10 digits, and symbols found on the keyboard (such as !, @, #). Strong passwords should be generated in such a way that knowledge of one does not lead to knowledge of another.
- Business Practices. Customer is responsible for maintaining commercially reasonable business practices in conjunction with use of the Services, collecting, storing and transmitting its customer data in a secure manner and protecting the privacy of its customer data. Customer shall comply with SwervePay’s requests for reasonable action on Customer’s part, to the extent necessary, to maintain security and integrity of the Services.
- Computing. Customer is responsible for updating to the most current Software version and security updates and patches necessary to properly operate the Services and keeping all Customer enrollment and payment information current and updated on the Management Web Site; and
- Compliance. Customer agrees, and hereby represents and warrants that Customer shall (a) use the Services in accordance with the applicable user guides and other documentation provided by SwervePay from time to time; and (b) not use or permit others to use information obtained through the use of the Services for any purpose other than in conjunction with the Services and in a manner described in the documentation for the Services.
Honoring Cards. Whenever possible, You will identify the person presenting a Card and purporting to be a person authorized to use a Card and check the expiration date and signature on each Card. You will not honor a Card if the Card has expired or if You determine or suspect that the account number on the Card does not match the account number on the Card’s magnetic stripe or the account number is listed on a current Electronic Warning Bulletin file. You are responsible for ensuring that the Cardholder understands that You are responsible for the transaction, including the goods or services that are the subject of the transaction. In addition, You are solely responsible for all customer service issues relating to Your goods or services, including pricing, fulfillment, order cancellation, returns, refunds and adjustments, warranty, and support. You will not add any amount to the posted price of goods or services You offer as a condition of paying with a Card that is not consistent with the Card Issuer Rules and laws. You will properly disclose to each Cardholder that is or may be used in connection with any of the transactions subject to this Agreement, at the time of transaction, any limitation You have on accepting returned merchandise. Your return policy must be in accordance with the Card Issuer Rules. If Your refund policy prohibits returns or is unsatisfactory to the Cardholder, You may still receive a Chargeback relating to such transactions. You agree to make a written receipt available to the Cardholder for any transaction. You may provide the Cardholder the option to decline a written receipt. You may also offer electronic receipts delivered by SMS or e-mail to the Cardholder.
Returns. You agree to process returns of, and provide refunds and adjustments for, Your goods or services through Your Customer Account in accordance with these TOS, any Customer Agreement, each Vendor Processor’s Rules and applicable Card Issuer Rules.
Restrictions on Use of Services. In connection with the Services, You will comply with all Payment Card Industry Data Security Standard (“PCI-DSS”) requirements and consent to our Acceptable Use Policy, which is available at www.swervepay.com: You also agree that You will (a) not send SMS receipts to customers who have expressly refused delivery of a receipt in that manner; (b) comply with all applicable laws and regulations and all requirements of: (i) Card Issuers applicable to merchants; and (ii) all SwervePay Processors; (c) maintain the security of account login information You receive as part of Your use of the Services; (d) if You lose Your computer or mobile device, or You have reason to believe that Your account is no longer secure, You will immediately notify us; (e) not accept payments in connection with any illegal activity, or any activity that is inconsistent with Your type of business or any activity prohibited by the rules of Your Card Issuer.
Compliance With Law. You may only use the Services in compliance with all laws, rules, and regulations applicable to the use of the Services. We may choose not to authorize or settle any transaction submitted to SwervePay if we believe the transaction is in violation of these TOS, the applicable Customer Agreement(s) or may cause harm to You, us, or our Processors.
Processing Errors. You will promptly notify us of any errors within ten (10) days after the date of the asserted error or missing transaction(s). If You do not notify us within the ten (10)-day period, we shall not be liable for, nor obligated to investigate, correct, such asserted error and You agree that all claims related to such error are waived. If we discover processing errors, we will attempt to rectify those processing errors efficiently.
Wireless Service Providers. The Services may utilize SMS messages delivered through wireless service providers, such as AT&T, Sprint, Verizon, etc. You acknowledge that any SMS message goes through Your and the message recipient’s wireless service provider’s systems. The privacy statement of each associated wireless service provider applies as the message passes through those systems. As a requirement to permit usage of SMS systems some wireless service providers may require that we disclose to them information about users of the Services and the nature of business to be conducted. In this situation the information will be used to ensure legitimate use of the SMS systems and not for marketing purposes. You acknowledge and agree that we may provide information about You to wireless service providers as described above. You may upload or enter certain data from Your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You may be made aware of or offered services, features, products, applications, online communities, or promotions provided by us or our affiliates. Installing any of our applications or Software grants us the right to send the identifiers for Your mobile device and Your Customers to third-parties for the use of advertising purposes. You are responsible for securely managing access to Your data and to the Services. You agree to be bound by our privacy policy, as it may be amended from time to time in accordance with its terms or these TOS.
SwervePay's Obligations
Services. Subject to the terms in this Agreement, SwervePay agrees to (i) provide to Customer the Services for which Customer enrolls and pays the applicable fees, either upon request or pursuant to a Customer Agreement, including without limitation the transmission of Transaction information to Financial Processors, and (ii) provide Customer with access to standardized reports regarding Customer’s Transactions processed using the Services and certain reporting tools to assist Customer in accounting activities. SwervePay hereby grants to Customer the right to access and use the Services in accordance with these TOS and any applicable Customer Agreement. SwervePay is not bound by nor should Customer rely on any representation by (i) any agent, representative or employee of any third-party referring or relating to the Services, including Your application or request for them; or in (ii) information posted on our Website of a general informational nature.
Modification of Terms; Changes to Services. Except as otherwise provided in a Customer Agreement, Customer agrees that SwervePay may: (a) revise, amend, update or otherwise change these TOS, including without limitation modifying the service fees or payment terms; and/or (b) revise, amend, update or otherwise change or terminate any part of the Services at any time. Any such revision or change will be binding and effective either, at SwervePay’s sole discretion, thirty (30) days after posting a revision of these TOS on the SwervePay Management Web Site, or upon electronic or written notification to You. You agree to periodically review the Management Web Site, including the current version of this Agreement available on the Management Web Site, to be aware of any such revisions. If You do not agree with any revision to the Agreement, You may terminate this Agreement at any time by providing us with thirty (30) days’ prior written notice. Notice of Your termination will be effective thirty (30) calendar days after receipt and processing by us. Any fees paid by You if You terminate Your Agreement with us are nonrefundable, except as otherwise expressly stated herein, but You will not incur any additional fees due to such termination. By continuing to use SwervePay Services after any revision to this Agreement or change in Services, You agree to abide by and be bound by any such revisions or changes. No non-executive employee, contractor, agent or representative of SwervePay is authorized to alter or amend the terms and conditions of these TOS.
Secure Transactions. SwervePay has implemented and will maintain security systems for the transmission of Customer’s Transactions, consisting of encryption and “firewall” technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet. SwervePay does not guarantee the security of the Services or Transaction data, and SwervePay will not be responsible in the event of any infiltration of its security systems or other breach of Security of Your data or systems or Customer data or systems, provided that SwervePay has used commercially reasonable efforts to prevent any such infiltration. Customer further acknowledges and agrees that Customer, and not SwervePay, is responsible for the security of Transaction data or information or any other information stored on Customer’s servers, and that SwervePay is not responsible for any other party’s servers (other than subcontractors of SwervePay solely to the extent SwervePay is liable for its own actions hereunder).
Technical Support for Services. SwervePay shall provide the technical support services to Customer, if any, pursuant the support package, if any, selected by Customer in a Customer Agreement. SwervePay’s then-current, standard technical support descriptions for Services shall be available at www.swervepay.com.
Proprietary Rights, Licenses, Restrictions
SwervePay IP. Except as otherwise set forth herein, all right, title and interest in and to: (i) all registered and unregistered trademarks, service marks and logos; (ii) all patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) all trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) all registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property (“IP”), proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services identified herein (“SwervePay IP”) are owned by SwervePay Services or its licensors, and You agree to make no claim of interest in or ownership of any such SwervePay IP. You acknowledge that no title to the SwervePay IP is transferred to You, and that You do not obtain any rights, express or implied, in the SwervePay Services or its licensors’ services, other than the rights expressly granted in this Agreement. To the extent that You create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to You, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by SwervePay and all existing and future copyright and other right, title and interest in and to each such Derivative Work, are assigned to, and shall automatically vest in, SwervePay, and to cooperate with SwervePay in connection with any actions by it to establish its rights in the same. SwervePay shall have no obligation to grant You any right in any such Derivative Work. Except to the extent permitted by applicable law, Customer shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Services or any components thereof, or otherwise apply any procedure or process to the Services or components thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings or any algorithm, data, process, procedure or other information contained therein. Customer shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Services or components thereof.
Limited License for Software and Services. Unless otherwise expressly provided in a Customer Agreement, SwervePay grants Customer a personal, limited, non-exclusive, non-transferable license, during such time that You satisfy the conditions set forth in each of Your Customer Agreement(s) and these TOS, to electronically access and use the Services solely for the purpose described herein and in any Customer Agreement. Except as expressly allowed herein, a Customer Agreement or by applicable law, You are not permitted to do any of the following and shall not allow any third-party to do any of the following: (i) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way any components of the Services; (ii) permit any third-party to benefit from the use or functionality of the Services via a rental, lease, timesharing, service bureau, or other arrangement; (iii) transfer any of the rights granted to You under any Customer Agreement or these TOS; (iv) work around any technical limitations in the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer the any component of Services except as otherwise permitted by applicable law; (v) perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or the use of the Services by our other licensees or customers; or (vi) export the Services, directly or indirectly. We reserve all rights not expressly granted to You in these TOS or a Customer Agreement. Components of the Services are protected by intellectual property laws, including international, U.S. federal and state laws. SwervePay and its licensors, collectively (as their respective interests may appear) own the title, copyright, and other worldwide intellectual property rights in the Services and all copies of the Services and any Software. Neither any Customer Agreement nor these TOS: (i) grant You any rights to our trademarks or service marks or (ii) limit any rights that we may have under trade secret, copyright, patent or other laws, domestic or abroad.
Customer Data. All “Customer Data” provided by You or any of Your Customers in the course of a Transaction shall be owned by You or Your Customer (subject to Your right to make the grants in this Section 3). You hereby grant us a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display the Customer Data for the purposes of (i) providing and improving the Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymised and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and (iv) any other purpose for which consent has been provided by the Customer.
Privacy and Security
SwervePay Privacy Polices. Our privacy statement for the Services is located on our Website at https://www.SwervePay.com and is incorporated herein by reference, as it is applicable to the Services and each Customer Agreement. The privacy statement sets forth Your and our rights and responsibilities with regard to Your personal information. You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Website. You agree to monitor our Website periodically to review such revisions. By using our Services after modifications to the privacy statement, You have agreed to these modifications. You acknowledge that if You do not agree to any such modification, You may terminate this Agreement.
Cardholder Information. You shall keep all Customer Data confidential and secure. You shall not disclose to any third-party any Cardholder account information or other personal information except in connection with the Services and in accordance with the Card Organization Rules or applicable law (including but not limited as required under the Health Insurance Portability and Accountability Act or “HIPAA”). You must keep all Cardholder information in a secure manner to prevent disclosure to unauthorized parties. You may not disclose or distribute any such information to a third-party or use the information for marketing purposes unless You receive the express consent of the user.
Use of Data. Customer acknowledges and agrees that in the course of providing the Services, SwervePay will capture certain transaction and user information (collectively, the “Data”). Customer agrees to provide to SwervePay, and SwervePay shall capture, only the Data that is required by the Software and is necessary for SwervePay to provide the Services. SwervePay agrees to use Data in its personally identifiable form only as necessary to complete the requested transaction. SwervePay shall not disclose Data to third-parties or use the Data, except that SwervePay shall have the rights: (i) to use the Data as necessary to perform the Services pursuant to these TOS or contemplated in a Customer Agreement (including distributing the Data to third-parties providing services requested by Customer); (ii) to maintain the Data as long as necessary, as required by law or as used internally for record keeping, internal reporting, and support purposes; (iii) to compile and disclose Data in the aggregate where individual merchant Data is not identifiable, including without limitation, calculating merchant averages by region or industry; and (iv) to provide the Data as required by law or court order, or to defend SwervePay’s rights in a legal dispute. You represent and warrant that You have provided notice to, and obtained consent from, any third-party individuals whose personal Data You supply to us as part of our services with regard to: (i) the purposes for which such third-party’s personal Data has been collected, (ii) the intended recipients or categories of recipients of the third-party’s personal Data, (iii) which parts of the third-party’s Data are obligatory and which parts, if any, are voluntary; and (iv) how the third-party can access and, if necessary, rectify the data You hold about them. You further agree to provide such notice and obtain such consent with regard to any third-party personal Data You supply to us in the future. We are not responsible for any consequences resulting from Your failure to provide notice or receive consent from such persons or entities nor for Your providing outdated, incomplete or inaccurate information.
PCI-DSS Requirements. While SwervePay and/or our Affiliates use security and encryption features to ensure the security and safety of Your personal information and that of Your Customers, SwervePay cannot absolutely guarantee the security of Your personal information from unauthorized access, loss or disclosure by third-parties. To ensure the highest level of security You agree to comply with our Acceptable Use Policy, including the PCI-DSS requirements and You represent and warrant that, while using any Services: (a) You are, and shall remain, in full compliance with all laws, statutes and federal and/or state regulations, as well as the Rules as may be applicable to You, Your business and any Card transaction; (c) You (and any outside agent that You may utilize to submit Transactions to SwervePay) comply and will comply with all our Acceptable Use Policy and all PCI-DSS requirements and You hereby agree to pay any fines and penalties that may be assessed by any Card Issuer as a result of Your non-compliance with PCI-DSS requirements, any data breaches, or by Your failure to accurately validate its compliance. You will review and monitor the requirements at http://www.visa.com/CISP, and http://www.pcisecuritystandards.org in order to determine the timeframes and mandates for compliance under PCI-DSS requirements. Your obligations to do so continue through the later of (y) the Termination Date or the (z) date You cease using all Services. You acknowledge and understand that You may be prohibited from participating in Card Issuer programs if it is determined that You are non-compliant.
Fees, Accounts and Payment Terms
Fees. As consideration for the Services, You agree to pay SwervePay the applicable service(s) fees set forth in an Exhibit A, or as otherwise provided by SwervePay in each Customer Agreement in force and effect, at the time of Your selection (and as it may be amended from time to time), or, if applicable, upon receipt of Your invoice from SwervePay. Should Customer wish to add Services, such addition shall be made by an additional Exhibit A either by written agreement signed by SwervePay and Customer or by e-mail from one party to the other acknowledged by reply e-mail. Fixed monthly fees are charged monthly in advance. Charges that are based on usage, such as text messages or transaction fees, are billed as soon as practicable following the end of the month. No objection to charges will be valid if not provided by notice to SwervePay within thirty (30) days of the date of the applicable invoice or charge by SwervePay. SwervePay will investigate such charges, which shall remain due and payable (and not subject to set off or deduction) until such point in time, if any, that SwervePay advises Customer to the contrary. Customer agrees to an automatic debit to ACH to settle billings; there shall be no separate invoice sent. SwervePay shall have the right from time to time to increase the prices called for on Exhibit A on thirty (30) days’ prior notice to Customer (either by e-mail or written notice), which shall be effective should Customer not object to such price increase within such thirty (30) day period; should customer object to such price increase on a timely basis, then at SwervePay’s option, to be delivered in writing or by e-mail, such price increase shall be rescinded retroactive the original notification, subject to SwervePay’s right to terminate this Agreement as set forth below.
Payments; Refunds; Pre-Payments. You are solely responsible for the credit card or Direct Debit (“Payment Method”) account information You provide to SwervePay and must promptly inform SwervePay of any changes thereto (e.g., change of expiration date or account number). Changes should be communicated to SwervePay by entering the updated information through the SwervePay tools or contacting SwervePay customer support. All payments shall be made in U.S. dollars. All fees are non-refundable unless otherwise explicitly stated in this Agreement. If we do issue a refund, we will do so via the Payment Method used by You to pay for the Services being refunded. For additional services or add-on services, Customer shall either prepay SwervePay’s then-current annual prepaid fees, if available, or pay the then-current monthly fees for such services, in accordance with the applicable Customer Agreement. If Customer uses SwervePay add-on services that are subject to additional standard fees that are not prepaid at enrollment, then SwervePay shall either immediately charge Customer’s credit card or debit Customer’s DDR account, as applicable, for SwervePay’s then-current fees for such services or invoice Customer for such additional standard fees, and Customer shall pay such invoice immediately.
Taxes. Customer is solely responsible for collecting, reporting and remitting any taxes required to be collected, paid or withheld in connection with the Services (“Taxes”). SwervePay is not responsible to determine whether or not Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. If in a given calendar year You receive (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Vendor or its Vendor processor(s) is authorized to report annually to the Internal Revenue Service (“IRS”), as required by law, Your name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments You receive in a calendar year, and the total dollar amount of the payments You receive for each month in a calendar year. You agree to pay all Taxes (including value added, sales and other taxes (other than taxes based on SwervePay’s income)) related to the Services or payments made by You hereunder. All payments due to SwervePay shall be made without any deduction or withholding on account of any tax, duty, charge or penalty, except as required by law, in which case, the sum payable by a party in respect of which such deduction or withholding is to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, SwervePay receives and retains (free from any liability in respect thereof) a net sum equal to the sum it would have received but for such deduction or withholding being required. Set up fees, if any, will become payable on the applicable effective date for the applicable SwervePay Services. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less (the “Agreement Interest Rate”). Customer hereby authorizes us to charge Customer’s Payment Method for the fees due for the Services, and Customer shall provide to SwervePay proper authorization for purposes of allowing SwervePay to debit the applicable Customer account to collect fees due under these TOS and each Customer Agreement. All fees owed by Customer to third-parties (for example, Financial Institutions, Financial Processors and merchant account providers), are Customer’s sole responsibility and are not covered by the Services.
Overcharge Fee. Excluding merchant services, in the event You exceed the Transaction limit permitted for the applicable Services as provided in any Customer Agreement (“Excess Transaction”) in any month, Customer may be charged a monthly transaction fee (“Monthly Overcharge Fee”) to be determined by multiplying each Excess Transaction processed in that month by the corresponding Service’s Transaction Fee. The Monthly Excess Transaction Fee shall be invoiced or debited in accordance with the terms for Fees above.
Chargebacks. These terms apply to Chargebacks for merchant services:
- The amount of a transaction may be reversed or charged back to Your Customer Account (each a “Chargeback”) for reasons, including, but not limited to, any one of the following: (i) an invalid Card account is submitted by You; (ii) neither the Cardholder nor a person authorized by the Cardholder received the goods or services requested; (iii) the Cardholder disputes the quality of the goods or services received; (iv) the Cardholder never received a credit for a returned item or a cancelled order; (v) the Cardholder was charged incorrectly; (vi) the authorization code is invalid; (vii) the Card was expired or not effective; (viii) the transaction is disputed; (ix) the transaction is reversed by the Card Issuer, our Processor, or a financial institution for any reason; or (x) the transaction was not authorized.
- For any transaction that results in a Chargeback, we may withhold or cause to be withheld the Chargeback amount in the Reserve Account. You may be subject to a chargeback on sales for a minimum period of one hundred eighty (180) days from the date the sale was entered into the processing system. We may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by each applicable Vendor Processor from Your Customer Account, Your Reserve Account, if any, any proceeds due to You, or Your bank account. If You have pending Chargebacks or we reasonably believe that a Chargeback is likely, we may withhold or delay payments from Your Customer Account for the later of: (i) two hundred seventy (270) days following the Termination Date; (ii) one hundred eighty (180) days from Your last Chargeback; or (iii) thirty (30) days following Your delivery of written notification disputing the Chargeback in question and the basis therefor with appropriate documentation in accordance herewith. You agree to respond to all Chargebacks promptly. 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 together with interest computed at the Agreement Interest Rate on any unpaid Chargeback amounts You owe to us from time to time. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of SwervePay related to any efforts to collect any Customer Account deficit balances (including, but not limited to, Chargeback amounts) which remain unpaid by for more than thirty (30) days.
Customer Accounts.
- Deposit of Funds. Upon validation of Your Customer Account, Vendor or Vendor’s Processor(s) will deposit to Your Customer Account the amounts actually received by us for completed transactions submitted through the Services at the end of every business day unless otherwise agreed in Your Customer Agreement. Payouts to Your bank account will normally register within two (2) to three (3) business days. Each Transaction will be considered complete when SwervePay has received the funds and when such funds have been accepted by the designated bank or financial institution. We shall have the right to deduct from Your Sub-Customer Account: (i) following the end of each month during the term of this Agreement any Fees owing from You to us or any of our Processors; and (ii) immediately at any time, any Chargebacks, penalties or other Fees owing from You to us or any of our Processors. Should we need to conduct an investigation or resolve any dispute related to Your Sub-Customer Account (including but not limited to issues around possible prohibited transactions or other breaches of these TOS or any Customer Agreement, or applicable SwervePay, Processor or Card Issuer Rules), we may defer payout or restrict access to Your funds for as long as we deem necessary. We also may defer payout or restrict access to Your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
- Customer Account Activity. You are responsible for monitoring Your transactions and ensuring that our payments to You are correct. You agree to contact us immediately if You discover or become aware of an error or an unauthorized transaction on Your Customer Account. You must notify us of any errors in payments made to You within thirty (30) days of the error or unauthorized transaction. Your failure to notify us of any such errors within the applicable thirty (30)-day period will constitute a waiver of any right or claim to amounts owed to You. Further, You are responsible for reconciling all transactions with Your Customer Account and keeping permanent records of such transactions.
- Reserve Accounts. For the purpose of providing a source of funds to pay damages which SwervePay or our Processors may potentially suffer in connection with providing You Services, and to pay Fees, fines, Chargebacks or other amounts You may owe or be assessed by any processor, a separate reserve account (the “Reserve Account”) may be established from time to time by You, us or any of our Processors to secure Your current and/or future potential obligations as reasonably determined us or our Processor. The Reserve Account will be in an amount as reasonably determined to protect the present or future interests and may be raised, reduced or removed at any time, in our or our Processor’s sole discretion. If there are not sufficient funds in Your Reserve Account, You grant us the right of recoupment and set-off and may fund the Reserve Account from any funding source associated with Your Customer Account, including but not limited to any funds due to You for the Services or under any Customer Agreement or available in Your bank account. If, in our opinion, the Personal Property Securities Act 2009 enables us to improve our security interest over the Reserve Account, You agree to do all things necessary, including obtaining the appropriate authorizations and executing any document to effect such improvement.
Representations and Warranties; Disclaimers; Limitations of Liability
By SwervePay. SwervePay represents and warrants that: (a) it has all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (b) all corporate action on the part of SwervePay, its officers, board of directors and stockholders necessary for the performance of its obligations under this Agreement has been taken.
Limitations of Liability.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN A SERVICES AGREEMENT (AS RELATES TO THE SUBJECT MATTER THEREOF), OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, SWERVEPAY AND ITS LICENSORS, AS APPLICABLE, EXPRESSLY DISCLAIM EACH WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES OR SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- SWERVEPAY’S LIABILITY TO YOU RELATING TO THE SERVICES, WHETHER ARISING UNDER THESE TOS, A SERVICES AGREEMENT, OR OTHERWISE, IS LIMITED, AT SWERVEPAY’S OPTION, TO (a) REFUNDING THE PRICE OF THE SERVICES IN RESPECT OF WHICH THE LIABILITY AROSE OR (b) TO PROVIDING, REPLACING OR REPAIRING THOSE SERVICES, OR (c) PROVIDING THOSE SERVICES AGAIN IN A MANNER REASONABLY CALCULATED TO AVOID FUTURE LIABILITY.
- Customer acknowledges that SwervePay is not a financial or credit reporting institution. SwervePay is responsible only for providing data transmission to effect or direct certain payment authorizations for You and is not responsible for the results of any credit inquiry, the operation of websites of ISPs or Financial Institutions or the availability or performance of the Internet, or for any damages or costs You suffer or incur as a result of any instructions given, actions taken or omissions made by You, Your financial processor(s), Your Financial Institution or any ISP. IN NO EVENT WILL SWERVEPAY’S LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE) ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO SWERVEPAY BY YOU HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. IN NO EVENT WILL SWERVEPAY OR ITS LICENSORS HAVE ANY LIABILITY (INCLUDING LIABILITY FOR NEGLIGENCE) TO YOU OR ANY OTHER PARTY FOR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE REGARDING ANY LIMITED REMEDY. Notwithstanding the above, the limitations set forth above shall be enforceable to the maximum extent allowed by applicable law.
- YOU ACKNOWLEDGE THAT NEITHER SWERVEPAY NOR ITS LICENSORS HAVE REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY OR WITHOUT COMPROMISE OF THE SECURITY SYSTEMS RELATED TO THE SERVICES OR THAT ALL ERRORS WILL BE CORRECTED.
By Customer. You represent and warrant that You shall comply with all applicable privacy, consumer and other laws and regulations with respect to Your: (i) provision, use and disclosure of the Data, Cardholder information; (ii) dealings with the users, Cardholders or other parties providing the Data; and (iii) use of the Services. You also represent and warrant that that You are either (x) a legal resident of the United States, (y) a United States citizen, or (z) a business entity authorized to conduct business by the state in which it operates. The Services may only be used within the United States of America.
- Corporate and Other Entity Customers. If Customer is a corporation or corporate entity (which for purposes hereof shall include any limited liability company, limited partnership, limited liability partnership or other entity that limits the liability of its beneficial owners) You represent and warrant that: (i) You have all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (ii) all corporate action on the part of You, Your officers, board of directors, stockholders, partners or members necessary for the performance of Your obligations under this Agreement has been taken; (iii) this Agreement constitutes Your valid and legally binding obligation, enforceable against it in accordance with the terms hereof; (iv) You are in good standing in Your jurisdiction of incorporation or organization and are eligible to register and use the Services; (v) Your authorized representative(s) has read and understands the entire Agreement and, after doing so, You desire to be bound thereby, and You have been represented by counsel of Your own choosing; (vi) no representations of any kind or character have been made to induce You to execute and enter into any Agreement, these TOS, or to accept the Services; (vii) any sales transaction submitted by You will represent a bona fide sale by You; (viii) any sales transactions submitted by You will accurately describe the goods and/or services sold and delivered to a Customer; (ix) You will fulfill all of Your obligations to each customer for which You submit a transaction and will resolve any customer dispute or complaint directly with the purchaser; (x) except in the ordinary course of business, no sales transaction submitted by You through the Services will represent a sale to any principal, partner, proprietor, or owner of Your entity or any of Your other Affiliates; (xi) You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (xii) Your use of the Services will be in compliance with this Agreement; and (xiii) You agree to follow the applicable Card brand operating Rules and regulations.
- Individual or Non-Corporate Customers. If You are an individual or other non-corporate entity not covered by Section H.3(a) above, You represent that: (i) You are at least eighteen (18) years of age if an individual, or if an entity, all persons acting on Your behalf are at least eighteen (18) years of age; (ii) You are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (iii) the name You provided when You registered is Your name or business name under which You sell goods and services; (iv) each sales transaction submitted by You will represent a bona fide sale You made; (v) any sales transactions submitted by You will accurately describe the goods and/or services sold and delivered to a purchaser; (vi) You will fulfill all of Your obligations to each customer for which You submit a transaction and will resolve any customer dispute or complaint directly with the purchaser; (vii) You and all transactions initiated by You will comply with all federal, state, and local laws, rules, and regulations applicable to You and/or Your business, including any applicable tax laws and regulations; (viii) except in the ordinary course of business, no sales transaction submitted by You through the Services will represent a sale to any principal, partner, proprietor, or owner of Your entity or any of Your other Affiliates; (ix) You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (x) Your use of the Services will be in compliance with this Agreement; and (xi) You agree to follow the applicable Card Issuer operating Rules and regulations.
Indemnifications
Mutual Indemnifications. Either party to this Agreement (You, on the one hand, and SwervePay, on the other hand) will defend, indemnify, save and hold harmless the other party and the officers, directors, agents, Affiliates, distributors, franchisees and employees of the other party from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from the indemnifying party’s material breach of any duty, representation or warranty of any Customer Agreement or these TOS, as amended. An “Indemnified Party” party’s right to indemnification is conditioned upon the following: prompt written notice to the party obligated to provide indemnification (“Indemnifying Party”) of any claim, action or demand for which indemnity is sought; control of the investigation, preparation, defense and settlement thereof by the Indemnifying Party; and such reasonable cooperation by the indemnified part, at the Indemnifying Party’s request and expense, in the defense of the claim. The Indemnified Party shall have the right to participate in the defense of a claim by the indemnifying party with counsel of the Indemnified Party’s choice at the Indemnified Party’s expense. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry of any judgment that makes any admissions in the Indemnified Party’s name or imposes any liability upon the Indemnified Party.
Customer agrees not to use the Services in violation of any local, state or Federal laws, rules or regulations, or orders, including, but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”) and its related July 10, 2015 Omnibus Ruling, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its related Rules and Regulations, and agrees to indemnify, defend and hold SwervePay and any Affiliated Entity harmless from and against all Losses (defined below) that are incurred, suffered or paid, directly or indirectly, by any of them in connection with, arising out of or resulting from any claim alleging improper or illegal use of any of the Services provided to Customer or any of Customer’s clients by SwervePay or any Affiliated Entity, including but not limited to any claims arising from following the direction of Customer for communications to its clients as to frequency of sending messages by any medium, including but not limited to text, e-mail, facsimile or paper regarding any matter, including but not limited to past due sums, deposits for anticipated procedures, estimates of cost of procedures, appointment reminders, payment receipts or other communications. For purposes of this Section, indemnification of SwervePay and any Affiliated Entity includes, but is not limited to payment by Customer of any judgment, settlement, claim, penalties and costs, interest, reasonable attorneys’ fees and cost of defense, if SwervePay or any Affiliated Entity is named as a party to any action or suit related to delivery of communications to a Customer client or otherwise subject to this indemnification. In such an event, SwervePay and any Affiliated Entity shall have the option at any time of either being defended by Customer’s counsel or providing their own defense to the action (subject to regular monthly reimbursement from Customer for costs and fees incurred, regardless of the outcome of such action). For purposes of this Section: (i) “Losses” means any and all losses, liabilities, damages, penalties, obligations, awards, fines, deficiencies, demands, interest, costs and expenses (including reasonable attorneys’ fees, consultants’ fees and other professional fees and disbursements); and (ii) “Affiliated Entity” shall mean any “affiliate” of SwervePay (as such term is construed under Rule 405 promulgated under the Securities Act of 1933), as well as, without limitation, any independent contractor, business partner, solution extender, or service provider under contract with SwervePay that assists SwervePay in delivering any of the Services provided by SwervePay or any Affiliated Entity to Customer.
Term and Termination
Term; Renewal. These TOS and each applicable Customer Agreement shall become effective upon the later of (i) the date Customer accepts these TOS via Customer Agreement (the “Effective Date”), or (ii) the date You use any of the Services, if different; and will continue for the period indicated on an Exhibit A (“Initial Term”), unless terminated earlier or suspended according to the provisions of these TOS and the applicable Customer Agreement(s). Each Customer Agreement will thereafter automatically renew for successive twelve (12) month terms, unless either party gives the other party written or electronic notice, in accordance with the terms herein, of its intention not to renew the applicable Customer Agreement, at least thirty (30) days prior to the end of the then-current term or renewal term, unless termination is by SwervePay. Any renewal of Your Services is subject to our then-current terms and conditions, successful completion of any applicable authentication procedure, if any, and payment of all applicable Fees owing to us at the time of renewal. Additional payment terms may apply to the SwervePay Services You purchase, as set forth herein and in the applicable Schedules to this Agreement or any applicable Customer Agreement.
Suspension and Termination. Either party hereto may, at its option, and without notice, terminate the Services, effective immediately, should the other party hereto (i) admit in writing its inability to pay its debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (v) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (vi) have a decree entered against it by a court of competent jurisdiction appointing a receiver liquidate, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs.
- By Customer. Unless otherwise provided in a Customer Agreement, You may terminate the Services and any Customer Agreement upon prior thirty (30) days’ written notice to SwervePay by notifying SwervePay’s customer support electronically or in writing and following the instructions for cancellation prior to the end of the initial annual period or any annual renewal period. Subject to the above, SwervePay shall use commercially reasonable efforts to cancel the Services within seven (7) business days following such written notice from Customer. Customer shall be responsible for the payment of all fees due and payable through the effective date of termination. Termination requests for non-SwervePay, third-party services may not be made through SwervePay. Customer must instead contact such third-parties directly to cancel such services.
- By SwervePay. Notwithstanding the foregoing, SwervePay may suspend Customer’s access to the Services or terminate this Agreement as follows:
- Following ten (10) days’ prior electronic or written notice (such as an overdue invoice) if (a) Customer breaches the Agreement, (b) perpetrates fraud, (c) causes or fails to fix a security breach relating to the Services, (d) fails to comply with SwervePay’s best practices requirements for security management or to respond to an inquiry from SwervePay, concerning the accuracy or completeness of the information Customer is required to provide pursuant to this Agreement, (e) if SwervePay reasonably suspects fraudulent activity on Customer’s payment services account, (if such breach is not cured within such ten (10)-day period), (f) in the event that certain third-party licenses or access to third-party components of the Services are terminated, or (g) non-payment of invoice; or
- Immediately, without prior notice, if we reasonably believe: (a) Your breach compromises the security of the Services in any material fashion, (b) fraudulent Transactions are occurring on Your account, (c) Customer’s financial processor or Financial Institution with which Customer has a merchant account requires such termination or suspension or where continued breach of its Rules or contractual terms creates a risk of termination of such merchant account or of such entity doing business with SwervePay; or (d) You or a Transaction violates our Acceptable Use Policy or Rules.
Termination Date. The date upon which termination is effective shall be the “Termination Date.”
Effect of Termination.
- Cessation. SwervePay will cease providing the Services and cease charging Your Payment Method, if applicable, for any monthly, annual or bi-annual Service fees as of the expiration of the annual, bi-annual or monthly billing cycle in which the termination is effective. If termination is due to Your default hereunder, You shall bear all costs of such termination, including any reasonable costs SwervePay incurs in closing Your account and applicable termination Fees. You agree to pay any and all costs incurred by SwervePay in enforcing Your compliance with this Section. Upon termination, Your rights to use the Services, and any other rights granted hereunder, shall immediately cease, and You shall destroy any copy of the materials licensed to You hereunder and referenced herein except for such copies that are in electronic format and cannot be readily destroyed without undue cost or effort, which copies may be retained only for archival purposes and not for commercial use. Each party will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except that any termination of this Agreement will not relieve SwervePay or Customer from any liability or obligations arising prior to the Termination Date, which shall survive any termination of this Agreement. To the extent permitted by applicable law, You agree that upon termination for any reason, we may delete all information relating to Your use of the Service. Notwithstanding the foregoing, Your obligations to pay all fees due through the Termination Date and terms relating to covenants, indemnity, warranties or terms which by their nature are required to survive contract termination will survive any termination of this Agreement.
- Bundled Services. In addition to the terms set forth above, if You purchase Services which are sold together as part of a “bundled” package of services, any termination relating to such bundle will terminate all SwervePay Services included in such bundle. In such cases we may, in our sole discretion and subject to Your agreeing to be bound by the applicable agreement(s) and to pay the applicable fees, allow You to convert certain Services included in the bundled services to stand-alone Services. Notwithstanding the above, termination of the Services will terminate any add-on services.
- Reinstatement of Services. If Services are suspended or terminated by SwervePay due to lack of payment by Customer, reinstatement of Services shall be subject to Customer paying SwervePay (i) new set-up fees, at SwervePay’s then-current rates; and (ii) as applicable, all past due annual or monthly fees and Transaction Fees and all interest thereon at the Agreement Interest Rate (unless waived by SwervePay).
- Data Portability. After the Termination Date, SwervePay, upon written request from You, may, at it its option and only if practicable, provide Your new acquiring bank or payment service provider (“Data Recipient”), as applicable, with any available credit card information relating to Your Customers, subject to the following conditions: (i) You must provide us with proof that the Data Recipient is in compliance with the PCI-DSS requirements (level 1 PCI compliant) by giving us a certificate or report on compliance with the Association PCI-DSS requirements from a qualified provider and any other information reasonably requested by us; (ii) the transfer of such information is compliant with the latest version of the PCI-DSS requirements; and (iii) the transfer of such information is allowed under the applicable Card Issuer Rules, and any applicable laws, rules or regulations. You shall indemnify, defend, and hold harmless SwervePay from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorney’s fees) we suffer or incur arising out of or in connection with the transfer of any data to a Data Recipient.
Confidentiality
- Confidential Information. “Confidential Information” means any confidential, trade secret or proprietary information (which may be business, financial or technical information) disclosed by one party to the other under this Agreement that is marked confidential or if disclosed orally designated as confidential at the time of disclosure or that should be reasonably understood to be confidential. All source code and the terms of any Customer Agreement will be considered Confidential Information.
- Confidentiality Obligations. Each party (i) shall not disclose to any third-party or use any Confidential Information disclosed to it by the other except as expressly permitted by these TOS or a Customer Agreement and for purposes of performing the Services, and (ii) shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance. Each party further agrees to use the other party’s Confidential Information only for the purpose of its performance of the Services. In addition, the receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects which embody Confidential Information, and which are provided to the receiving party hereunder.
- Limitation of Confidentiality. The confidentiality obligations set forth in this Section (“Confidentiality Obligations”) above do not apply to information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information, (iv) is disclosed with the written approval of the disclosing party, or (v) is disclosed five (5) years from the effective date of termination or expiration of this Agreement.
- Exceptions to Confidentiality. Notwithstanding the Confidentiality Obligations set forth above, each party may disclose Confidential Information of the other party (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or (ii) on a “need-to-know” basis under an obligation of confidentiality substantially similar in all material respects to the Confidentiality Obligations to its legal counsel, accountants, contractors, consultants, banks and other current or potential financing sources (including investors).
Miscellaneous
- Third-Party Services. You may be made aware of services, products, offers and promotions provided by third-parties, and not by SwervePay (“Third-Party Services”). If You elect to use Third-Party Services, You are solely responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing any Third-Party Services. You authorize us to use and disclose Your contact information, including name and address, for the purpose of making the Third-Party Services You select available to You. You agree that the third-party is solely responsible for the performance of the Third-Party Services.
- Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder, except for Customer’s payment obligations hereunder, due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this Section shall give the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof, and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided, however, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, either party may immediately terminate the Agreement.
- Entire Agreement and Modification. Except for a valid Customer Agreement attached hereto or any other written agreement signed by both of us, the terms in this Agreement constitute the entire agreement between SwervePay and You regarding its subject matter and its terms supersede any prior or simultaneous agreement, terms, negotiations, whether written or oral, or whether established by custom, practice, policy or precedent, between the parties hereto. Except as otherwise provided for herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties herein. You acknowledge and agree that in the event a purchase order (“PO”) contains additional terms, provisions or language (“PO Terms”), those PO Terms shall be null and void unless accepted in writing by SwervePay pursuant to a Customer Agreement.
- Severability. In the event that any provision of these TOS or a Customer Agreement is unenforceable or invalid such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
- No Assignment. Customer may not assign any rights or obligations under these TOS, to the Services, or any Customer Agreement without the prior written consent of SwervePay. SwervePay may assign its rights, obligations or duties regarding the Services, these TOS or any Customer Agreement upon prior written notice to You.
- Governing Law and Jurisdiction. These TOS, the Services and each Customer Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without reference to its conflicts of laws principles. Each party consents to the exclusive venue and jurisdiction of the competent state and/or federal courts in Chicago, Illinois, for any dispute arising out of or related to this Agreement, with venue to be laid in the appropriate courthouse in Chicago, Illinois. The parties acknowledge and agree that this Agreement is made and performed in Chicago, Illinois. THE PARTIES HEREBY WAIVE ANY RIGHT TO JURY TRIAL WITH RESPECT TO ANY ACTION BROUGHT IN CONNECTION WITH THIS AGREEMENT. For avoidance of doubt, the application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
- Export Restrictions. You acknowledge and agree that You shall not import, export, or re-export directly or indirectly, any commodity, including Your products incorporating or using any SwervePay products or Services in violation of the laws and regulations of any applicable jurisdiction. The Services are subject to the U.S. export controls regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII). You will not export or re-export the Services, or portion thereof, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end user, or to any end user who You know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons.
- Notices. Except as otherwise expressly stated in this Agreement, all notices to SwervePay shall be in writing and delivered, via courier, commercial carrier or certified or registered mail (in each case with delivery confirmation), to SwervePay at its official corporate address, or via email (with proof of transmission) to the authorized representative identified in the applicable Customer Agreement. All notices to You shall be delivered to Your mailing address or e-mail address as provided by You in Your account information, as updated by You pursuant these TOS. Unless You choose to opt-out of receiving marketing notices, You authorize SwervePay to notify You as our customer, via commercial e-mails, telephone calls and other means of communication, of information that we deem is of potential interest to You, including without limitation communications describing upgrades, new products and services or other information pertaining to the Services or other SwervePay offerings relating to Internet security or to payment services. Notwithstanding the above, You shall not have the right to opt-out of service or support notices relating to the Services, including without limitation, notices of service modifications, security, performance issues or technical difficulties.
- Headings. The section headings appearing in these TOS or any Customer Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
- Independent Contractors. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
- Non-Disparagement; Publicity. In consideration of the Services and payments received therefor, neither party will disparage the other party or the other party’s trademarks, websites, products or services, or display any such items in a derogatory or negative manner on any website or in any public forum or press release. Unless otherwise stated herein, You shall not issue a press release or otherwise advertise, make a public statement or disclose to any third-party information pertaining to the parties’ relationship, the existence or terms of these TOS or any Customer Agreement, the Services and any underlying transactions between SwervePay and You, or referring to the other party in relation to Services without the SwervePay’s prior written approval.
- Costs, Legal Expenses. Except as expressly stated in a Customer Agreement, each party shall be solely responsible for the costs and expenses of performing its obligations hereunder. In the event of a dispute arising from or related to the Services, these TOS or a Customer Agreement, which results in litigation or any other proceeding (“Litigation”) the prevailing party in such Litigation shall recover from the other its costs, expenses and reasonable attorney’s fees in connection with such litigation or other proceeding.
| CUSTOMER: |
| Business_Legal_Name |
| By: |
| Its: |
| Date of Execution: Todays_Date |
| Address: Business_Street_Address Business_City, Business_State Business_ZipCode |
Email: Business_Contact_Email_Address |
Exhibit A Ontario 1% 2020 2.05% Flat
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.05% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.05% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.05% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 22, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.05% | Processed Volume in 2020 (Introductory Rate) Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2024
Anticipated Usage.You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the introductory period. For the remainder of the term after the introductory period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, will draft Your account for any Services provided during the introductory period at the higher rates indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 22, 2020 to April 22, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.05% | Processed Volume in 2020 (Introductory Rate) Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2024
Anticipated Usage. In the event Your usage patterns of the Services deviates significantly or causes a substantial increase in costs compared to SwervePay’s initial assessment of Your anticipated usage of the Services (ex: electronic payment mixture of credit card, debit card, card brands accepted, etc.), SwervePay may adjust the rates indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 21, 2020 to April 22, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.05% | Processed Volume in 2020 Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2024
Exclusive Electronic Payment System. Within thirty (30) days of implementing the Services and for the duration of this Agreement, You will only use these Services as Your exclusive means of accepting and processing credit card, debit card, and other electronic payments. Accordingly, You will cease all use of any alternative method or systems for accepting these types of payments within this thirty (30) day period, except You may continue to use any existing alternative method or system which You have an existing contractual obligation to use and which cannot be cancelled without penalty, provided You do not renew those contractual obligations. You acknowledge that fees for the Services may have been discounted based on Your exclusive use of the Services for electronic payments and if You fail to use these Services as Your exclusive means of accepting and processing credit card, debit card, or other electronic payments in the time period under this section, SwervePay will invoice You for any Services provided during the discounted time frames at the higher rates indicated in this Exhibit A and You shall pay such invoice with thirty (30) days or as otherwise instructed on the invoice. Further, SwervePay may terminate this Agreement for such breach in accordance with the Term and Termination section of the General Terms of Service.
Anticipated Usage. In the event Your usage patterns of the Services deviates significantly or causes a substantial increase in costs compared to SwervePay’s initial assessment of Your anticipated usage of the Services (ex: electronic payment mixture of credit card, debit card, card brands accepted, etc.), SwervePay may adjust the rates indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 20, 2020 to April 21, 2020
DownloadSummary of changes
Formatting
Table of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.05% | Processed Volume in 2020 Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2024
Exclusive Electronic Payment System. Within thirty (30) days of implementing the Services and for the duration of this Agreement, You will only use these Services as Your exclusive means of accepting and processing credit card, debit card, and other electronic payments. Accordingly, You will cease all use of any alternative method or systems for accepting these types of payments within this thirty (30) day period, except You may continue to use any existing alternative method or system which You have an existing contractual obligation to use and which cannot be cancelled without penalty, provided You do not renew those contractual obligations. You acknowledge that fees for the Services may have been discounted based on Your exclusive use of the Services for electronic payments and if You fail to use these Services as Your exclusive means of accepting and processing credit card, debit card, or other electronic payments in the time period under this section, SwervePay will invoice You for any Services provided during the discounted time frames at the higher rates indicated in this Exhibit A and You shall pay such invoice with thirty (30) days or as otherwise instructed on the invoice. Further, SwervePay may terminate this Agreement for such breach in accordance with the Term and Termination section of the General Terms of Service.
Anticipated Usage. In the event Your usage patterns of the Services deviates significantly or causes a substantial increase in costs compared to SwervePay’s initial assessment of Your anticipated usage of the Services (ex: electronic payment mixture of credit card, debit card, card brands accepted, etc.), SwervePay may adjust the rates indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 20, 2020 to April 20, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.05% | Processed Volume in 2020 Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2024
Exclusive Electronic Payment System. Within thirty (30) days of implementing the Services and for the duration of this Agreement, You will only use these Services as Your exclusive means of accepting and processing credit card, debit card, and other electronic payments. Accordingly, You will cease all use of any alternative method or systems for accepting these types of payments within this thirty (30) day period, except You may continue to use any existing alternative method or system which You have an existing contractual obligation to use and which cannot be cancelled without penalty, provided You do not renew those contractual obligations. You acknowledge that fees for the Services may have been discounted based on Your exclusive use of the Services for electronic payments and if You fail to use these Services as Your exclusive means of accepting and processing credit card, debit card, or other electronic payments in the time period under this section, SwervePay will invoice You for any Services provided during the discounted time frames at the higher rates indicated in this Exhibit A and You shall pay such invoice with thirty (30) days or as otherwise instructed on the invoice. Further, SwervePay may terminate this Agreement for such breach in accordance with the Term and Termination section of the General Terms of Service.
Anticipated Usage. In the event Your usage patterns of the Services deviates significantly or causes a substantial increase in costs compared to SwervePay’s initial assessment of Your anticipated usage of the Services (ex: electronic payment mixture of credit card, debit card, card brands accepted, etc.), SwervePay may adjust the rates indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1% 2020 2.10% 2021
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.10% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.10% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.10% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 23, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.10% | Processed Volume in 2020 (Introductory Rate) Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2024
Anticipated Usage.You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the introductory period. For the remainder of the term after the introductory period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, will draft Your account for any Services provided during the introductory period at the higher rates indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1% 2020 2.30% 2021
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.30% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.30% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.30% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 24, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.30% | Processed Volume in 2020 (Introductory Rate) Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2024
Anticipated Usage.You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the introductory period. For the remainder of the term after the introductory period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, will draft Your account for any Services provided during the introductory period at the higher rates indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1% 2020 2.50% 2021
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.50% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.50% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.50% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 24, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.50% | Processed Volume in 2020 (Introductory Rate) Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2024
Anticipated Usage.You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the introductory period. For the remainder of the term after the introductory period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, will draft Your account for any Services provided during the introductory period at the higher rates indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1% 2020 2.20% 2021
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.20% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.20% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.20% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 24, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.20% | Processed Volume in 2020 (Introductory Rate) Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2024
Anticipated Usage.You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the introductory period. For the remainder of the term after the introductory period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, will draft Your account for any Services provided during the introductory period at the higher rates indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1% 2020 2.27% 2021
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.27% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.27% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.27% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 24, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.27% | Processed Volume in 2020 (Introductory Rate) Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2024
Anticipated Usage.You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the introductory period. For the remainder of the term after the introductory period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, will draft Your account for any Services provided during the introductory period at the higher rates indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1% 2020 2.50% .25 2021
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.50% $0.25 | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 Processed Transactions beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.50% $0.25 | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 Processed Transactions beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.50% $0.25 | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 Processed Transactions beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 24, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.50% $0.25 | Processed Volume in 2020 (Introductory Rate) Processed Volume beginning Jan 1, 2021 Processed Transactions beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2024
Anticipated Usage.You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the introductory period. For the remainder of the term after the introductory period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, will draft Your account for any Services provided during the introductory period at the higher rates indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.5% 2020 1.65% 2021
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.50% 1.65% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.50% 1.65% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.50% 1.65% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 25, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.50% 1.65% | Processed Volume in 2020 (Introductory Rate) Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2024
Anticipated Usage.You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the introductory period. For the remainder of the term after the introductory period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, will draft Your account for any Services provided during the introductory period at the higher rates indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1% 2020 2.30% .15 2021 2 Yr
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.30% $0.15 | Processed Volume in 2020 ("Introductory Rate") Processed Volume beginning Jan 1, 2021 Gateway Only Transactions beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2022
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.30% $0.15 | Processed Volume in 2020 ("Introductory Rate") Processed Volume beginning Jan 1, 2021 Gateway Only Transactions beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.30% $0.15 | Processed Volume in 2020 ("Introductory Rate") Processed Volume beginning Jan 1, 2021 Gateway Only Transactions beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 27, 2020 to April 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Quantity |
Includes: Software and Merchant Services | 1.00% 2.30% $0.15 | Processed Volume in 2020 (Introductory Rate) Processed Volume beginning Jan 1, 2021 Gateway Only Transactions beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term: Effective Date until December 31, 2023
Anticipated Usage.You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the introductory period. For the remainder of the term after the introductory period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, will draft Your account for any Services provided during the introductory period at the higher rates indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 1.70% 2021
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 1.70% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 28, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 1.70% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 28, 2020 to April 28, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 1.70% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 2.75% 2021
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.75% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective April 30, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.75% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1% 2020 2.30% 2021 $15 Dispute
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.30% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $15.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 1, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 2.30% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $15.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 3.25% 2021
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 3.25% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 1, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.00% 3.25% | Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 3.6% 2021 .25 ACH
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.6% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 6, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.6% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 1.75% 2021 .25 ACH 2 Year
Effective May 29, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 1.75% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2022
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 21, 2020 to May 29, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 1.75% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2022
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 8, 2020 to May 21, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 1.75% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 6, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 1.75% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 2.68% 2021 .25 ACH 12/21
Effective May 18, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.68% | Per ACH Transaction Processed Volume for first six months after Go Live ("Introductory Period") Processed Volume after the Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. “Go Live” means when the Services are made available to You in a production environment. You agree that Go Live will not occur before December 21, 2020.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 11, 2020 to May 18, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.68% | Per ACH Transaction Processed Volume for first six months after Go Live ("Introductory Period") Processed Volume after the Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. “Go Live” means when the Services are made available to You in a production environment. You agree that Go Live will not occur before December 21, 2020.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 8, 2020 to May 11, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.68% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 6, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.68% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 2.75% 2021 .25 ACH 2 Return
Effective May 7, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.75% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $2.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 7, 2020 to May 7, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.75% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $2.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2024
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 2.0% 2021 .25 ACH
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.0% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 8, 2020 to May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.6% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 2.3% 2021 .21 ACH
Effective May 8, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.21 1.00% 2.30% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 2.80% 2021 .25 ACH
Effective May 11, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.80% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
SwervePay.SigningBonus.061520
Effective June 16, 2020
DownloadTable of Contents
SwervePay - Signing Bonus (Expires June 30, 2020)
This Signing Bonus is part of the General Terms of Service for All Services or Terms and Conditions.
Annual Credit Card Volume | Signing Bonus |
$0 - $1,000,000 | $1,000 |
$1,000,001 - $15,000,000 | $5,000 |
$15,000,001 + | $10,000 |
Signing Bonus: In order for You to receive the above listed signing bonus You must (a) provide SwervePay with all reasonably requested documentation sufficient to substantiate Your anticipated annual credit card volumes; and (b) enter into at minimum a three (3) year agreement with SwervePay for payment processing services before June 30, 2020. If You meet these previous requirements, SwervePay will deposit the applicable signing bonus directly into Your account via ACH after thirty (30) days once You begin using the SwervePay payment processing Services. SwervePay will only pay one signing bonus based on Your statements provided. You agree to refund the signing bonus should Your volume substantially reduce other than for a force majeure event.
CUSTOMER: {{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 13, 2020 to June 16, 2020
DownloadTable of Contents
SwervePay - Signing Bonus (Expires June 15, 2020)
This Signing Bonus is part of the General Terms of Service for All Services.
Annual Credit Card Volume | Signing Bonus |
$0 - $1,000,000 | $1,000 |
$1,000,001 - $15,000,000 | $5,000 |
$15,000,001 + | $10,000 |
Signing Bonus: In order for You to receive the above listed signing bonus You must (a) provide SwervePay with twelve (12) months of statements indicating Your credit card volume from the most recent twelve (12) months; and (b) enter into at minimum a three (3) year agreement with SwervePay for payment processing services before June 15, 2020. If You meet these previous requirements, SwervePay will deposit the applicable signing bonus directly into Your account via ACH after thirty (30) days once You begin using the SwervePay payment processing Services. SwervePay will only pay one signing bonus based on Your statements provided. You agree to refund the signing bonus fees should You fail to complete the Initial Term.
CUSTOMER: {{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 2.50% 2021 .25 ACH 12/21
Effective May 18, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.50% | Per ACH Transaction Processed Volume for first six months after Go Live ("Introductory Period") Processed Volume after the Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. “Go Live” means when the Services are made available to You in a production environment. You agree that Go Live will not occur before December 21, 2020.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 15, 2020 to May 18, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.50% | Per ACH Transaction Processed Volume for first six months after Go Live ("Introductory Period") Processed Volume after the Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. “Go Live” means when the Services are made available to You in a production environment. You agree that Go Live will not occur before December 21, 2020.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 2.95% 2021 .25 ACH
Effective May 18, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.95% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 2.70% 2021 .25 ACH 12/21
Effective May 18, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.70% | Per ACH Transaction Processed Volume for first six months after Go Live ("Introductory Period") Processed Volume after the Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. “Go Live” means when the Services are made available to You in a production environment. You agree that Go Live will not occur before December 21, 2020.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 2.40% 2021 .25 ACH
Effective May 19, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.40% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 2.85% 2021 .25 ACH
Effective May 21, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.85% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 4.50% 2021 .25 ACH
Effective May 21, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 4.50% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.67% .09 ACH
Effective May 22, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.09 1.67% | Per ACH Transaction Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 21, 2020 to May 22, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.09 1.68% | Per ACH Transaction Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 3.65% 2021 .25 ACH
Effective May 22, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.65% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A - Health Pro 2.25 2.95 .30
Effective August 31, 2022
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.30% 3.00% $0.30 | Swipe Transactions Non-Swipe Transactions Per Transaction |
Other Fees Device / Readers: M130's Dispute Resolution Settlement Reject Fee PCI Non-Compliance Fee Per Non-Compliant Month. Finvi Payments may terminate if Client fails to maintain PCI Compliance. Account Monthly Minimum | $130.00 $35.00 $15.00 $25.00 $25.00 | Per Device Per Chargeback/Retrieval Per Return Per Month Not Reported If fees do not exceed $25.00 in any given month |
Effective August 31, 2022 to August 31, 2022
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.30% 3.00% $0.30 | Swipe Transactions Non-Swipe Transactions Per Transaction |
Other Fees Device / Readers: M130's Dispute Resolution Settlement Reject Fee PCI Non-Compliance Fee Per Non-Compliant Month. Finvi Payments may terminate if Client fails to maintain PCI Compliance. Account Monthly Minimum | $130.00 $35.00 $15.00 $25.00 $25.00 | Per Device Per Chargeback/Retrieval Per Return Per Month Not Reported If fees do not exceed $25.00 in any given month |
Effective May 26, 2020 to August 31, 2022
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.25% 2.95% $0.30 | Swipe Transactions Non-Swipe Transactions Per Transaction |
Other Fees Device / Readers: M130's Dispute Resolution Settlement Reject Fee PCI Non Compliance Reporting Fee Account Monthly Minimum | $130.00 $35.00 $15.00 $25.00 $25.00 | Per Device Per Chargeback/Retrieval Per Return Per Month Not Reported If fees do not exceed $25.00 in any given month |
Effective May 26, 2020 to May 26, 2020
DownloadTable of Contents
Exhibit A: Pricing Schedule
Fee Schedule | Rate | Quantity |
Monthly Fees SwervePay Health Pro Software & Merchant Services | 2.25% 2.95% $0.30 | Swipe Transactions Non-Swipe Transactions Per Transaction |
One Time Fees (invoiced at time of order) Device / Readers: M130's Dispute Resolution Settlement Reject Fee Account Monthly Minimum | $130.00 $35.00 $15.00 $25.00 | Per Device Per Chargeback/Retrieval Per Return If fees do not exceed $25.00 in any given month |
Exhibit A Ontario 1.0% 2020 2.0% 2021 .25 ACH $25 Dispute
Effective May 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.00% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $25.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 2.75% 2021 .25 ACH $2.50 Return
Effective May 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.75% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $2.50 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective May 27, 2020 to May 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.75% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $25.00 $25.00 $10.00 $2.50 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 3.15% 2021 .25 ACH $3.00 Return
Effective May 27, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.15% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $3.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 1.65% 2021 .25 ACH $3.00 Return
Effective May 28, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 1.65% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $3.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 3.00% 2021 .25 ACH $3.00 Return
Effective May 28, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.00% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $3.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 3.15% 2021 .25 ACH $3.00 Return
Effective May 28, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.15% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $3.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 1.75% 2021 .25 ACH
Effective May 29, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 1.75% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 3.75% 2021 .25 ACH $3.00 Return
Effective May 29, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.75% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $3.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Skagit.SwervePayPayfacSub-MerchantProcessingAgreement.OS.042020
Effective May 29, 2020
DownloadTable of Contents
SwervePay Sub-Merchant Processing Agreement
This SwervePay Sub-Merchant Processing Agreement (“Agreement”) is effective as of the date signed below (“Effective Date”) between the customer designated below (“Client”) and SwervePay, LLC (“Payment Facilitator”) governing Client’s use of Payment Facilitator’s payment processing services to accept credit cards, debit cards, ACH transactions and/or checks (together, the “Services” and individually, each a “Service”).
CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY USING THE SERVICES CLIENT ACCEPT THESE TERMS AND CONDITIONS. IF CLIENT DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY DISCONTINUE USE OF THE SERVICES.
- Services
The Services allow Client to accept payment card transactions, ACH transactions and other electronic payment transactions (collectively, “Payment Transactions”) into Client’s bank account(s) or a Payment Facilitator account (as determined by Payment Facilitator in its sole discretion) on a compatible computer and/or mobile device. The Services are licensed to Client, and Payment Facilitator owns all copyright, trade secret, patent, and other proprietary rights in the Services. Payment Facilitator is not a bank; Payment Facilitator is a registered payment facilitator that processes or directs the processing of payments Client receives from Client customers (each “Client Customer” and collectively, “Client Customers”). To do this, Payment Facilitator enters into agreements with other processors and banks. Client will be required to provide certain personal and/or business information to open an account with Payment Facilitator, which must be approved by Payment Facilitator prior to using the Services (the “Sub-Merchant Account”). Client must provide accurate and complete information to Payment Facilitator when opening the Sub-Merchant Account. Payment Facilitator may forward some or all of this information to its processor and to any other person or entity that has involvement in connection with the processing of any of Client’s Payment Transactions, including Client’s bank or other financial institutions and Card Organizations. If Client’s request to open a Sub-Merchant Account is approved, Payment Facilitator may request additional information from Client at any time. Payment Facilitator may also periodically obtain reports to determine whether Client continues to meet the requirements for a Sub-Merchant Account. In addition, Client may be required to enter into additional agreements as required by Payment Facilitator’s processors (each a “Payment Facilitator Processor” and collectively, “Payment Facilitator’s Processors”) or the card organizations, such as MasterCard, Visa, Discover Network or American Express (the “Card Organizations”). The Card Organizations and Payment Facilitator Processors require that Client and Payment Facilitator comply with all of their respective applicable bylaws, rules and regulations, which may be amended at any time (collectively, the “Rules”). Payment Facilitator may amend this Agreement to comply with such amendments. Portions of these rules and regulations applicable to Visa and MasterCard are available on the Visa and MasterCard websites.
2. Card Readers / Swipe Device
Once Client’s Sub-Merchant Account is approved, and if purchased (or alternate arrangements) or required for Client’s account, the swipe device(s) will be sent to Client at the address provided. Payment Facilitator does not warrant that the swipe device or the Services will be compatible with Client’s computer, mobile device or third-party carrier. Client’s use of any swipe device and the Services may also be subject to the terms of Client’s mobile device manufacturer and Client’s carrier. Payment Facilitator shall not be responsible for any damages caused by defects associated with any swipe devices used by Client with respect to Client’s business or any hacking of any of such swipe devices.
3. Sub-Merchant Account By establishing a Sub-Merchant Account, Client confirms that Client is 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 it operates. The Services may only be used within the United States of America. Client agrees that Payment Facilitator is authorized to contact and share information about Client’s Sub-Merchant Account with Client’s bank or other financial institution and all Card Organizations. Upon approval of Client’s Sub-Merchant Account and by accepting the terms of this Agreement, Client authorizes Payment Facilitator to hold, receive, and disburse funds on Client’s behalf. Client may terminate this authorization by closing Client’s Sub-Merchant Account. Client agrees that in using the Services, Client will do the following:
- Only send SMS receipts to Client Customers who have requested a receipt be delivered in that manner;
- Comply with all applicable laws and regulations and all requirements of: (i) Card Organizations applicable to merchants; and (ii) all Payment Facilitator Processors.
- Maintain the security of account login information Client receives as part of Client’s use of the Services.
- Client agrees that if Client loses Client’s computer or mobile device, or Client has reason to believe that Client’s Sub-Merchant Account is no longer secure, Client will immediately notify Payment Facilitator;
- Not accept payments in connection with any illegal activity, or any activity that is inconsistent with Client’s type of business;
- Not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (i) adult content; (ii) airline or cruise line; (iii) credit counseling or identity protection services; (iv) debt elimination or reduction services; (v) distressed property sales and marketing; (vi) gambling establishments or gambling; (vii) no card present tobacco or pharmaceutical sales; (viii) multilevel marketing programs or goods or services sold through such systems; (ix) goods or services sold through rebate or upsell programs; (x) timeshare resales and related marketing of goods, services or properties; (xi) sales to from operations outside the United States of America; (xii) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; (xiii) acceptance of credit cards, debit cards or other forms of payment at scrip dispensing terminals; (xiv) buyer club activities or buyer club memberships; (xv) inbound or outbound telemarketing services; or (xvi) continuity or subscription services generated from direct marketing activities.
- Use the Services only for lawful merchant activities as approved by Payment Facilitator and not in a manner that results in or may result in complaints, disputes, chargebacks, fees, fines or penalties; and
- Not knowingly submit any sales transaction (i) that adds any surcharge to the transaction, except to the extent authorized by the Rules or applicable law, (ii) that adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately, (iii) that represents the refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible or arises from the dishonor of a Cardholder’s personal check or from the acceptance of a Card at a terminal that dispenses scrip, (iv) that is not a valid transaction between the Client and a bona fide Cardholder, (v) that Client knows or should have known to be fraudulent or not authorized by the Cardholder, or that Client knows or should have known to be authorized by a Cardholder colluding with Client for a fraudulent purpose, (vi) until after the products are shipped the services are performed, and/or Client has completed the transaction, unless Client has obtained Cardholder consent for a recurring transaction, (vii) where a valid authorization was required but not obtained, (viii) where multiple authorizations for amounts less than the total sale amount have been obtained, (ix) which results in a disbursement of cash or cash equivalent to a Cardholder or (x) that establishes a maximum dollar sale transaction amount, except to the extent authorized by the Rules.
- Not submit any refund transaction: (i) that does not correlate to an original sales transaction from the Cardholder, (ii) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Cardholder for postage paid by the Cardholder to return merchandise in accordance with a policy applied consistently by Client to all Client Customers, (iii) for returned products that were acquired in a cash purchase from Client, (iv) that would cause an overdraft, or (v) more than three (3) business days following either: (A) a regulatory requirement granting a Cardholder’s right to a refund; or (B) a non-disputed Cardholder request.
- Not use any Cardholder data or other transaction data received from Payment Facilitator or Payment Facilitator Processor for any purpose not authorized by this Agreement.
- Not disclose any Cardholder data or other transaction data to any entity except for necessary disclosures to affected Cardholders, and through Payment Facilitator Processor to affected Card Organization entities.
- Not provide Payment Facilitator any inaccurate, incomplete, or misleading information.
- Provide Payment Facilitator with timely notification of events that have caused or could cause material changes in Client’s ability to fulfill Client’s obligations under this Agreement, including but not limited to (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; or (iii) actions by governmental or non-governmental agencies.
- Not transfer or attempt to transfer Client’s financial liability by asking or requiring Cardholders to waive their dispute rights.
- Not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
- Not submit transactions for entities that do not have their principal places of business in the United States
- Not use the Services to process cash advances.
4. Unauthorized Use, Compliance with Law
Client may only use the Services in compliance with all laws, rules, and regulations applicable to the use of the Services. Payment Facilitator may choose not to authorize or settle any transaction submitted to Payment Facilitator if Payment Facilitator believes the transaction is in violation of this Agreement or may cause harm to Client, Client Customers, Payment Facilitator, or Payment Facilitator’s processors. Client expressly authorizes Payment Facilitator to share information about Client, Client’s Sub-Merchant Account or Client’s transactions with Client’s bank(s) and other financial institutions and with law enforcement if Payment Facilitator believes the Services have been used for an illegal, unauthorized or criminal purpose. Unauthorized Use, Compliance with Law
Client agrees to pay the applicable fees set forth when Client signed up for the Services (“Fees”). Payment Facilitator reserves the right to change Fees at any time upon thirty (30) days after sending notice (by any means, including but not limited to email, text, regular mail or otherwise) prior to the effective date of the change. Client’s continued use of the Services indicates Client’s consent to the change in Fees. If Client does not consent to the change in Fees, Client must close Client’s Sub-Merchant Account, otherwise we shall be permitted to change or add such Fees thirty days following sending of the notice. Client further agrees that if unusual or unexpected transaction activity occurs on Client’s Sub-Merchant Account, Payment Facilitator has the right to hold funds while Payment Facilitator conducts an investigation into the processing activity. Payment Facilitator also has the right to request and to receive from Client’s documentation to support the transaction activity, including, but not be limited to, invoices, signed sales receipts, shipping documentation, and any other relevant documentation pertaining to a transaction or transactions in question.
5. Deposit of Sub-Merchant Account Funds
Client will establish and maintain with an Automated Clearing House (“ACH”) receiving depository institution acceptable to Payment Facilitator’s Processors one or more commercial checking account(s) based in the United States to facilitate payment for Payment Transactions. Client will maintain sufficient funds in the account to accommodate all transactions, including, but not limited to, Fees, fines and chargebacks. Client irrevocably authorizes the debit of the account for chargebacks, Fees and any other penalties, fees or payments or monies due under this Agreement to Payment Facilitator or its Payment Facilitator Processors with respect to Client’s Sub-Merchant Account (collectively, “Indebtedness to Payment Facilitator”). Once Client’s bank account is validated, Payment Facilitator or Payment Facilitator’s Processor(s) will deposit to Client’s Sub-Merchant Account the amounts actually received by Payment Facilitator for completed transactions submitted through the Services no later than two days following the end of every business day. Payments to Client’s bank account will normally register within 2-3 business days. Each transaction will be considered complete when Payment Facilitator has received the funds and when such funds have been accepted by the designated bank or financial institution. Payment Facilitator shall have the right to deduct from Client’s Sub-Merchant Account: (i) following the end of each month during the term of this Agreement any Fees owing from Client to Payment Facilitator or any Payment Facilitator Processor; and (ii) immediately at any time, any Indebtedness to Payment Facilitator.
Should Payment Facilitator need to conduct an investigation or resolve any dispute related to Client’s Sub-Merchant Account (including but not limited to issues around possible Prohibited Transactions or other breaches by Client of this Agreement or applicable Payment Facilitator, Payment Facilitator Processor or Card Organization Rules), Payment Facilitator may defer payment or restrict access to Client’s funds for as long as Payment Facilitator deems necessary. Payment Facilitator also may defer payment or restrict access to Client’s funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
6. Sub-Merchant Account Activity
Client is responsible for monitoring Client’s transactions and ensuring that Payment Facilitator’s payments to Client are correct. Client agrees to contact Payment Facilitator immediately if Client discovers an error or an unauthorized transaction on Client’s Sub-Merchant Account. Client must notify Payment Facilitator of any errors in payments made to Client within thirty (30) days of the error or unauthorized transaction. Client’s failure to notify Payment Facilitator of any such errors within the applicable thirty (30) day period will constitute a waiver of any right or claim to amounts owed to Client.
Client is responsible for reconciling all transactions with Client’s Sub-Merchant Account and keeping permanent records of such transactions.
7. Reserve Account/Security Interest
For the purpose of providing a source of funds to pay damages which Payment Facilitator or its Payment Facilitator Processors may potentially suffer under this Agreement and to pay Indebtedness to Payment Facilitator or other amounts Client may owe Payment Facilitator under this Agreement or assessed by any Payment Facilitator Processor, a separate reserve account (the “Reserve Account”) may be established from time to time by Client, Payment Facilitator, or any Payment Facilitator Processor to secure Client’s current and/or future potential obligations as reasonably determined by Payment Facilitator or any Payment Facilitator Processor. The Reserve Account will be in an amount as reasonably determined by Payment Facilitator or its applicable Payment Facilitator Processor(s) to protect their present or future interests and may be raised, reduced or removed at any time by Payment Facilitator or any Payment Facilitator Processor, in Payment Facilitator’s sole discretion. If there are not sufficient funds in Client’s Reserve Account, Payment Facilitator has the right of recoupment and set-off and may fund the Reserve Account from any funding source associated with Client’s Sub-Merchant Account, including but not limited to any funds due to Client under this Agreement, or available in Client’s bank account. Client grants Payment Facilitator a security interest in and lien on any and all funds held in (a) any Reserve Account, (b) all funds at any time in the Sub-Merchant Account, regardless of the source of funds, and (c) any amounts due to Client under this Agreement. Client agrees to provide other security to Payment Facilitator upon request to secure Client’s obligations under this Agreement. This security interest may be exercised by Payment Facilitator or any Payment Facilitator Processor or any of Payment Facilitator or any Payment Facilitator Processor’s assigns, without notice or demand of any kind by making an immediate withdrawal, debit or freezing of Client’s assets. Payment Facilitator may also make reversals of deposits or transfers made to Client’s Sub-Merchant Account. Client agrees to execute any additional documentation required for Payment Facilitator to perfect Payment Facilitator’s security interest, including such form(s) of control agreement(s) as Payment Facilitator may from time to time require regarding dominion of the funds referenced in Sections 8(a), 8(b) and 8(c) hereof. Client further agrees to pay to Payment Facilitator upon demand any Indebtedness Owing to Payment Facilitator or other monies owing by Client to Payment Facilitator or any Payment Facilitator Processor pursuant to this Agreement or otherwise.
8. Honoring Cards
- Whenever possible, Client will identify the person presenting a Card and purporting to be a person authorized to use a Card and check the expiration date and signature on each Card. Client will not honor a Card if the Card has expired or if Client determines that the account number on the Card does not match the account number on the Card’s magnetic stripe or the account number is listed on a current Electronic Warning Bulletin file.
- Client is responsible for ensuring that the cardholder of each Card understands that Client is responsible for the transaction, including the goods or services that are the subject of the transaction. In addition, Client is solely responsible for all customer service issues relating to Client’s goods or services, including pricing, fulfillment, order cancellation, returns, refunds and adjustments, warranty, and support.
- Client will not add any amount to the posted price of goods or services Client offers as a condition of paying with a Card that is not consistent with the Card Organization Rules and laws.
- Client will properly disclose to the holder of each form of credit card, debit card or other card (each a “Card” and collectively, the “Cards”) that is or may be used in connection with any of the transactions subject to this Agreement (each a “Cardholder”), at the time of transaction, any limitation Client has on accepting returned merchandise. Client’s return policy must be in accordance with the Card Organization Rules. If Client’s refund policy prohibits returns or is unsatisfactory to the Cardholder, Client may still receive a Chargeback relating to such transactions.
- Client agrees to make a written receipt available to the Cardholder for any transaction. Client may provide the Cardholder the option to decline a written receipt. Client may also offer electronic receipts delivered by SMS or e-mail to the Cardholder.
9. Taxes
Client is responsible for collecting, reporting and remitting any taxes required to be collected, paid or withheld in connection with the Services (“Taxes”). Payment Facilitator is not responsible to determine whether or not Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction.
If in a given calendar year Client receives: (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Payment Facilitator or its Payment Facilitator processor(s) is authorized to report annually to the Internal Revenue Service (“IRS”), as required by law, Client’s name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments Client receives in a calendar year, and the total dollar amount of the payments Client receives for each month in a calendar year.
10. Returns
By using the Services, Client agrees to process returns of, and provide refunds and adjustments for, Client’s goods or services through Client’s Sub-Merchant Account in accordance with this Agreement, each Payment Facilitator Processor’s Rules and applicable Card Organization Rules.
11. Chargebacks
The amount of a transaction may be reversed or charged back to Client’s Sub-Merchant Account (each a “Chargeback”) for reasons, including, but not limited to, any one of the following: (a) an invalid Card account is submitted by Client; (b) neither the Cardholder nor a person authorized by the Cardholder received the goods or services requested; (c) the Cardholder disputes the quality of the goods or services received; (d) the Cardholder never received a credit for a returned item or a cancelled order; (e) the Cardholder was charged incorrectly; (f) the authorization code is invalid; (g) the Card was expired or not effective; (h) the transaction is disputed; (i) the transaction is reversed by the Card Organization, any Payment Facilitator Processor, or a financial institution for any reason, (j) the transaction was not authorized; or (k) the transaction is allegedly unlawful, suspicious, or believed by Payment Facilitator to be in violation of the terms of this Agreement.
For any transaction that results in a Chargeback, Payment Facilitator may withhold the Chargeback amount in the Reserve Account. Client may be subject to a chargeback on sales for a minimum period of 360 days from the date the sale was entered into the processing system. Payment Facilitator may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by each applicable Payment Facilitator Processor from Client’s Sub-Merchant Account, Client’s Reserve Account, if any, any proceeds due to Client, or Client’s bank account. If Client has pending Chargebacks or Payment Facilitator reasonably believes that a Chargeback is likely, Payment Facilitator may withhold or delay payments from Client’s Sub-Merchant Account for the later of: (i) 270 days following termination of this Agreement; (ii) 180 days from Client’s last Chargeback; or (iii) 30 days following Client’s delivery of written notification disputing the Chargeback in question and the basis therefor with appropriate documentation in accordance with Section 13 below. Client agrees to respond to all Chargebacks promptly. If Payment Facilitator is unable to recover funds related to a Chargeback for which Client is liable, Client will pay Payment Facilitator the full amount of the Chargeback immediately upon demand. Client agrees to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of Payment Facilitator related to Payment Facilitator’s efforts to collect any Sub-Merchant Account deficit balances unpaid by Client.
If Payment Facilitator determines that Client is incurring an excessive amount of Chargebacks, Client may be subject to a Card Organization’s monitoring program. Client is responsible for monitoring Client’s monthly chargeback percentage and developing chargeback reduction programs as required by the Card Organizations. Payment Facilitator may also establish controls or conditions governing Client’s Sub-Merchant Account, including but not limited to (a) an increase in processing fees, (b) creating a Reserve Account in an amount reasonably determined by Payment Facilitator to cover anticipated Chargebacks and related fees, (c) delaying payments, and (d) terminating or suspending the Services and this Agreement. Failure to establish such controls or conditions as established by Payment Facilitator within the specified period (or ten days following notification of such controls or conditions if no time period is specified) shall constitute a breach by Client of this Agreement.
12. Processing Errors
Client agrees to promptly notify Payment Facilitator of any errors within thirty (30) days after the date of the asserted error or missing transaction(s). If Client does not notify Payment Facilitator within the 30-day period, Payment Facilitator is not liable for, nor obligated to investigate, correct, such asserted error and Client agrees that all claims related to such error are waived. If Payment Facilitator discovers processing errors, it will attempt to rectify processing errors.
13. Privacy and Legal Notices; HIPAA, TCPA, FDCPA
Client agrees to keep information received from Cardholders confidential. Client will not disclose to any third party any Cardholder account information other personal information except in connection with the Services and in accordance with the Card Organization Rules or applicable law (including but not limited as required under the Health Insurance Portability and Accountability Act or “HIPAA”). Client must keep all Cardholder information in a secure manner to prevent disclosure to unauthorized parties. Client may not disclose or distribute any such information to a third party or use the information for marketing purposes unless Client receives the express consent of the user. Furthermore, Client agrees to be subject to Payment Facilitator’s privacy policy and any other legal notices located at www.swervepay.com.
Client agrees not to use the Services in violation of any local, state or Federal laws, rules or regulations, or orders, including, but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”), Fair Debt Collection Practices Act ("FDCPA") and HIPAA and its related Rules and Regulations, and agree to indemnify, defend and hold Payment Facilitator and its Affiliated Entities (defined below) harmless from and against all Losses (defined below) that are incurred, suffered or paid, directly or indirectly, by any of them in connection with, arising out of or resulting from any claim alleging improper or illegal use of any of the Services provided to Client and/or Client Customers by Payment Facilitator or any of its Affiliated Entities, including but not limited to any claims arising from following Client’s direction for communications to Client Customers as to frequency of sending messages by any medium, including but not limited to text, e-mail, facsimile or paper regarding any matter, including but not limited to past due sums, deposits for anticipated procedures, estimates of cost of procedures, appointment reminders, payment receipts or other communications. For purposes of Section 13, indemnification of Payment Facilitator and its Affiliated Entities includes, but is not limited to payment by Client of any judgment, settlement, claim, penalties and costs, interest, reasonable attorneys’ fees and cost of defense, if Payment Facilitator or an Affiliated Entity is named as a party to any action or suit related to delivery of communications to Client Customer or otherwise subject to this indemnification. In such an event, Payment Facilitator and its Affiliated Entities shall have the option at any time of either being defended by Client’s counsel or providing their own defense to the action (subject to regular monthly reimbursement from Client for costs and fees incurred, regardless of the outcome of such action). For purposes of this Section 13: (i) “Losses” means any and all losses, liabilities, damages, penalties, obligations, awards, fines, deficiencies, demands, interest, costs and expenses (including reasonable attorneys’ fees, consultants’ fees and other professional fees and disbursements); and (ii) “Affiliated Entity” shall mean any “affiliate” of Payment Facilitator (as such term is construed under Rule 405 promulgated under the Securities Act of 1933), as well as, without limitation, any independent contractor, business partner, solution extender, or service provider under contract with Payment Facilitator or assists Payment Facilitator in delivering any of the Services provided by Payment Facilitator pursuant to this Agreement.
14. Consent to Electronic Notices
From time to time, Payment Facilitator may be required to provide to Client certain notices, disclosures or information about Client’s Sub-Merchant Account or in connection with the Services. Client agrees that this information may be provided to Client by posting it on Payment Facilitator’s website or mobile app, or by sending Client an e-mail to the e-mail of record with Payment Facilitator when Client signed up for the Services. Notices provided to Client via e-mail will be deemed given and received on the transmission date of the e-mail. Notices posted to the website or mobile app will be deemed given and received within 24 hours of posting.
15. Compliance with Law: Payment Card Industry Data Security Standards Non-Disclosure & Storage of Cardholder and Transaction Information Requirements
While Payment Facilitator and/or its Affiliates use advanced security features to ensure the security and safety of Client’s personal information and that of Client Customers, Payment Facilitator cannot absolutely guarantee the security of any of such personal information from unauthorized access, loss or disclosure by third parties. Client confirms and certifies that: (a) Client is, and shall be, in full compliance during the term of this Agreement with all laws, statutes and federal and/or state regulations, as well as the Rules as may be applicable to Client, Client’s business and any Payment Transaction; (b) all acceptances of Cards as a form of payments via the Internet shall at a minimum, include the following information and processes on their Internet sites: (i) prominent display of Sub-Merchant name as “Merchant” and as the name that will appear on the cardholder statement, (ii) a complete description of good or services offered; (iii) delivery standards including method and time for delivery; (iv) terms and conditions of purchase, and export or legal descriptions; (v) return/refund policy described in reasonable details; (vi) opportunity to review and confirm order prior to order submission; (vii) secure method for payment data transmission; (viii) currency of transaction used to make payment (USD); (ix) disclosure of Sub-Merchant outlets to country of origin; (x) display of card association or payment network logos; (xi) clear disclosure of Sub-Merchant privacy policy; (xii) alternate Sub-Merchant contact info options; and (xiii) display of web hosting company contact information; (c) it (and any outside agent that it may utilize to submit Transactions to Payment Facilitator) complies and will comply with the Payment Card Data Security Standards (“PCI DSS”) and Sub-Merchant hereby agrees to pay any fines and penalties that may be assessed by Visa, MasterCard or Discover or any other Card Organization as a result of Sub-Merchant’s non-compliance with the requirements of PCI DSS, any data breaches, or by its failure to accurately validate its compliance. Sub-Merchant will review and monitor the requirements at http://www.visa.com/CISP, and http://www.pcisecuritystandards.org in order to determine the timeframes and mandates for compliance under PCI DSS. The foregoing is an on-going obligation during the term of this Agreement and as this Agreement may be renewed. Sub-Merchant acknowledges and understands that Sub-Merchant may be prohibited from participating in Visa, MasterCard or Discover or other Card Organization programs if it is determined that Sub-Merchant is non-compliant. The following lists certain (but not all) of the current PCI DSS requirements, all of which Sub-Merchant shall comply with, if applicable: (i) install and maintain a working network firewall to protect data accessible via the Internet; (ii) keep security patches up to date; (iii) encrypt stored data; (iv) encrypt data sent across networks; (v) use and regularly update anti-virus software; (vi) restrict access to data to business (“need to know”); (vii) assign a unique ID to each person with computer access to data; (viii) not use Payment Facilitator supplied defaults for system passwords and security parameters; (ix) track access data by unique ID; (x) maintain a policy that addresses information security for employees and contractors; and (xi) restrict physical access to Cardholder information. Sub-Merchant shall notify Payment Facilitator if it utilizes any third-party that provides payment related services, directly or indirectly, and/or stores, transmits, or processes Cardholder data. Sub-Merchant is responsible for ensuring compliance of any such third-parties with PCI DSS. In the event of the failure, including bankruptcy, insolvency, or other suspension of Sub-Merchant’s business operations, Sub-Merchant shall not sell, transfer, or disclose any materials that contain Cardholder account numbers, personal information, or other Cardholder transaction information to third-parties (collectively, “Cardholder Information”). Sub-Merchant on behalf of itself and each of its agents and Affiliates shall either return this Cardholder Information to Payment Facilitator, or provide Payment Facilitator with acceptable proof of destruction of Cardholder Information. If Sub-Merchant is undergoing a forensic investigation regarding PCI DSS compliance at the time Sub-Merchant executes this Agreement, then Sub-Merchant shall fully cooperate with the investigation until completed. Payment Facilitator warrants that it and each of its Affiliates complies with the applicable required PCI DSS regulations and that Payment Facilitator and each of its Affiliates is a PCI DSS validated service provider.
16. Termination of Services
Client may cancel the Services or terminate this Agreement at any time, with, or without cause. Cancellation of the Services will become immediate upon Client’s notice to Payment Facilitator. Cancellation of the Services or termination of this Agreement will not alter Client’s obligation to pay all amounts owed to Payment Facilitator, including any Fees, and Client will continue to be bound by this Agreement, which obligations shall survive any termination of this Agreement. Upon termination of this Agreement, the license granted under this Agreement shall cease and Payment Facilitator shall not be liable to Client or any third party for such termination or access to the Services.
Upon termination of this Agreement, any pending transactions will be cancelled unless processed by Payment Facilitator (or its Payment Facilitator Processors) in Payment Facilitator’s sole discretion. Subject to Section 18 below, any funds that Payment Facilitator is holding in custody for Client at the time of termination, less any applicable Fees chargebacks, penalties or payments due under this Agreement, will be paid out to Client according to Client’s payment schedule (consistent with past practice and subject to Payment Facilitator’s rights to withhold payment for monies owed to Payment Facilitator or reserves established by Payment Facilitator). If an investigation is pending at the time Client closes Client’s Sub-Merchant Account, Payment Facilitator may hold Client’s funds until the investigation is completed. Payment Facilitator may hold all funds for up to 180 days from the date of the last transaction or 180 days from the date of the last chargeback, whichever is the later.
Payment Facilitator may terminate this Agreement and close Client’s Sub-Merchant Account for any reason or no reason at any time upon notice to Client, and without liability to Client for closing Client’s Sub-Merchant Account. Payment Facilitator may also suspend or terminate the Services and access to Client’s Sub-Merchant Account if Client: (a) have violated the terms of this Agreement, the Card Organization Rules, any other agreement Client has with Payment Facilitator, (b) pose an unacceptable credit or fraud risk to Payment Facilitator or any Payment Facilitator Processor, as determined by Payment Facilitator in its sole discretion, (c) fall outside the credit policy approved by a Payment Facilitator Processor, of if requested by a Card Organization or governmental entity, (d) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct, or (e) breach any of Client’s obligations under this Agreement. Payment Facilitator also reserves the right to add Client’s Sub-Merchant Account to the Terminated Merchant File, if Client’s Sub-Merchant Account meets the criteria defined by MasterCard.
17. Effect of Termination
Any termination of this Agreement does not relieve Client of any obligations to pay any Fees, penalties or costs accrued prior to the termination and any other amounts owed by Client to Payment Facilitator as provided in this Agreement. Client will continue to be responsible for any and all Chargebacks, credits and adjustments and all other amounts then due, or which later become due. In connection with termination, Payment Facilitator or its applicable Payment Facilitator Processor(s) may require the establishment and maintenance of a Reserve Account by Client in accordance with Section 7.
Subject to the terms and conditions of this Agreement, Payment Facilitator grants Client a personal, limited, non-exclusive, non-transferable license, during such time that Client satisfies the conditions set forth in this Agreement, to electronically access and use the Services solely for the purpose described herein. Except as expressly allowed herein or by applicable law, Client is not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following: (i) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way any components of the Services; (ii) permit any third party to benefit from the use or functionality of the Services via a rental, lease, timesharing, service bureau, or other arrangement; (iii) transfer any of the rights granted to Client under this Agreement; (iv) work around any technical limitations in the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer the any component of Services except as otherwise permitted by applicable law; (v) perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or the use of the Services by Payment Facilitator’s other licensees or customers; or (vi) export the Services, directly or indirectly.
18. Reservation of Rights and Ownership
Payment Facilitator reserves all rights not expressly granted to Client in this Agreement. Components of the Services are protected by copyright, trade secret and other intellectual property laws. Payment Facilitator and its licensors own the title, copyright, and other worldwide intellectual property rights in the Services and all copies of the Services. This Agreement does not grant Client any rights to trademarks or service marks of Payment Facilitator. This Agreement does not limit any rights that Payment Facilitator may have under trade secret, copyright, patent or other laws.
19. Privacy & Use of Client’s Information
The Services may utilize SMS messages delivered through wireless service providers, such as AT&T, Sprint, Verizon, etc. Client acknowledges that any SMS message goes through Client and the message recipient’s wireless service provider’s systems. The privacy statement of each associated wireless service provider applies as the message passes through those systems. As a requirement to permit usage of SMS systems some wireless service providers may require that Payment Facilitator disclose to them information about users of the Services and the nature of business to be conducted. In this situation the information will be used to ensure legitimate use of the SMS systems and not for marketing purposes. Client acknowledges and agrees that Payment Facilitator may provide information about Client to wireless service providers as described above. Client also acknowledges that in accessing the Services Client may upload or enter certain data from Client’s account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. Client may be made aware of or offered services, features, products, applications, online communities, or promotions provided by Payment Facilitator or Payment Facilitator’s Affiliates. Installing this application grants Payment Facilitator the right to send the identifiers for Client’s mobile device to third parties for the use of advertising purposes. Client is responsible for securely managing access to Client’s data and to the Services. Client agrees to be bound by the applicable Payment Facilitator privacy policy, as it may be amended from time to time in accordance with its terms.
20. Disclaimer of Warranties
THE SERVICES AND ANY CONTENT ACCESSIBLE THROUGH THE SERVICES ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYMENT FACILITATOR, ITS AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, PAYMENT FACILITATOR PROCESSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DEALERS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) DISCLAIM ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, CONTENT, AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NON- INFRINGEMENT. PAYMENT FACILITATOR DOES NOT WARRANT THAT THE SOFTWARE, THE SERVICES, THE SWIPE DEVICE, THIRD PARTY SERVICES OR ANY ONLINE SERVICES ARE SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, OR ERRORS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. FURTHER, PAYMENT FACILITATOR DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT OR DATA THROUGH THE SERVICES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT. THIS WARRANTY GIVES CLIENT SPECIFIC LEGAL RIGHTS, AND CLIENT MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
21. Limitation of Liability and Damages
CLIENT AGREE THAT IN NO EVENT WILL PAYMENT FACILITATOR, ANY PAYMENT FACILITATOR PROCESSOR OR ANY AFFILIATE OF PAYMENT FACILITATOR BE LIABLE FOR ANY LOSS, COST, LIABILITY OR DAMAGE INCURRED AS A RESULT OF YOUR USE OF THE SERVICES, THE TERMINATION OF SERVICES OR PARTICIPATION IN THIRD PARTY SERVICES. THE ENTIRE CUMULATIVE LIABILITY OF PAYMENT FACILITATOR, PAYMENT FACILITATOR’S AFFILIATES, ITS SUPPLIERS AND PAYMENT FACILITATOR PROCESSORS FOR ANY REASON ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OF THE SERVICES SHALL BE LIMITED AS PROVIDED HEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAYMENT FACILITATOR, ITS AFFILIATES, ITS PAYMENT FACILITATOR PROCESSORS AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, THE LOSS, CORRUPTION OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS, USE OF THE SOFTWARE WITH HARDWARE OR OTHER SOFTWARE THAT DOES NOT MEET PAYMENT FACILITATOR’S SYSTEMS REQUIREMENTS OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY OF PAYMENT FACILITATOR, ITS AFFILIATES, ITS SUPPLIERS, ITS PAYMENT FACILITATOR PROCESSORS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CLIENT. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PAYMENT FACILITATOR AND CLIENT. PAYMENT FACILITATOR WOULD NOT HAVE PROVIDED THE SERVICES WITHOUT SUCH LIMITATIONS.
22. Consent
Client’s consent to do business electronically and receive electronic communications from Payment Facilitator, and Payment Facilitator’s agreement to do so covers all transactions Client conducts through the Services for as long as Client remains a licensee of the Services. If Client later decides that Client does not want to receive future communications electronically, Client may contact Payment Facilitator with withdrawal in writing of Client’s consent and discontinue the use of the Services.
23. Indemnification
Client agrees to indemnify, defend and hold Payment Facilitator, its Affiliates, its Payment Facilitator Processors, contractors, employees, agents and its third party suppliers, licensors, attorneys and partners (collectively, the “Payment Facilitator Indemnitees”) harmless from any and all claims, losses, damages, and liabilities, costs and expenses, including without limitation legal fees and expenses, arising out of or related to Client’s use or misuse of the Services, any violation by Client of this Agreement, or any breach of the representations, warranties, and covenants made by Client in this Agreement. Payment Facilitator reserves the right, at Client’s expense, to assume the exclusive defense and control of any matter for which Client is required to indemnify any of Payment Facilitator Indemnitees, including rights to settle, and Client agrees to cooperate with the defense and settlement of these claims. Payment Facilitator will use reasonable efforts to notify Client of any claim, action, or proceeding brought by a third party that is subject to the foregoing indemnification upon becoming aware of it.
24. Amendment
Please review the Agreement periodically on Payment Facilitator’s website provided to Client for additional terms and changes. Payment Facilitator has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to, Fees, terms, Internet-based services, pricing, technical support options, and other product-related policies, at any time upon notice by any means Payment Facilitator determines in its discretion to be reasonable. Client’s continued use of the Services after Payment Facilitator’s publication of any such changes shall constitute Client’s acceptance of this Agreement as modified.
25. Third Party Services
In connection with Client’s use of the Services, Client may be made aware of services, products, offers and promotions provided by third parties, and not by Payment Facilitator (“Third Party Services”). If Client decides to use Third Party Services, Client is responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing any Third Party Services. Client authorizes Payment Facilitator to use and disclose Client’s contact information, including name and address, for the purpose of making the Third Party Services Client chooses available to Client. Client agrees that the third party, and not Payment Facilitator, is responsible for the performance of the Third Party Services.
26. Export Restrictions
Client acknowledges that the Services are subject to the U.S. export controls regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII) and that Client will comply with all applicable laws and regulations. Client will not export or re-export the Services, or portion thereof, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end user, or to any end user who Client knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons.
27. Representations and Warranties
Client represents and warrants to Payment Facilitator that: (a) if an individual, Client is at least eighteen (18) years of age; (b) Client is eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by Client when Client registered is Client’s name or business name under which Client sells goods and services; (d) any sales transaction submitted by Client will represent a bona fide sale by Client; (e) any sales transactions submitted by Client will accurately describe the goods and/or services sold and delivered to a purchaser; (f) Client will fulfill all of Client’s obligations to each of Client Customers for which Client submits a transaction and will be responsible for and resolve any customer dispute or complaint directly with the purchaser and will be financially liable to Payment Facilitator for transactions entered into with purchasers; (g) Client and all transactions initiated by Client will comply with all federal, state, and local laws, rules, and regulations applicable to Client and/or Client’s business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no sales transaction submitted by Client through the Services will represent a sale to any principal, partner, proprietor, or owner of Client’s entity or any of Client’s other Affiliates; (i) Client will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (j) Client’s use of the Services will be in compliance with this Agreement; (k) Client agrees to follow the applicable Card brand operating Rules and regulations; and (l) Client is not engaged in any of the businesses or in any of the activities listed on Exhibit A, attached hereto and incorporated herein by reference.
28. Miscellaneous
Except as expressly set forth in this Agreement, this Agreement is a complete statement of the agreement between Client and Payment Facilitator and sets forth the entire liability of Payment Facilitator, its Payment Facilitator Processors, its Affiliates and its suppliers and Client’s exclusive remedy with respect to the Services and Third Party Services and their use. The suppliers, agents, employees, distributors, and dealers of Payment Facilitator are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Payment Facilitator. Any waiver of the terms herein by Payment Facilitator must be in a writing signed by an authorized officer of Payment Facilitator and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement may not be assigned by Client without the prior written approval of Payment Facilitator, but may be assigned without Client’s consent by Payment Facilitator without restriction. Any assignment in violation of this Section will be void. This Agreement will be governed by Illinois law, without regard to its conflicts of law principles, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in Cook County, Illinois or federal court for the Northern District of Illinois for the resolution of any dispute with respect to the this Agreement or any of the Services called for herein. Client hereby waives Client’s right to trial by jury with respect to any judicial proceeding relative to this Agreement or any of the Services called for herein. For purposes of this Agreement, the term “Affiliate” shall mean a person or entity controlled by or under common control with another person or entity, as the term “affiliate” is construed under Rule 405 promulgated under the Securities Act of 1933 as amended. All rights and obligations of the parties hereto accruing under this Agreement during the term of this Agreement shall survive any termination of this Agreement. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. This Agreement may be executed in several counterparts, whether by original, photocopy, facsimile, email pdf or electronic signature, both of which when taken together shall constitute one valid binding Agreement. By clicking via the internet or other electronic media that Client agrees to the terms of this Agreement, this shall constitute the counterpart electronic signature by both Client and Payment Facilitator to be bound by the terms of this Agreement. Any notice required hereunder shall be deemed given if delivered in writing in person or sent by email to the email address of the other party set forth below or if sent by Federal Express or other bonded courier one business day after sent via next business day or same business day delivery to the address of the party set forth below to three business days after deposit in the U.S. Mail by either registered or certified mail, addressed to the party entitled to notice at the address set forth below, or if a party delivers notice of a change in address, then the delivery shall be made to the most recent address provided by notice of the party changing his, her or its address as set forth in such notice. If no address is designated by Client below, then the address shall be Client’s main corporate address as set forth on Client’s main corporate website.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date of full execution of this Agreement.
| Customer: |
| {{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} | |
Its: {{{Customer_Signor_Title}}} | |
Date of Execution: {{{Todays_Date}}} | |
Address: {{{Customer_Street_Address}}} {{{Customer_City}}}. {{{Customer_State}}} {{{Customer_ZipCode}}} | |
Email: {{{Customer_Signor_Email}}} |
15807945
EXHIBIT A
PROHIBITED BUSINESSES AND ACTIVITIES
The following businesses and activities are strictly prohibited, unless otherwise agreed to by Payment Facilitator and Payment Facilitator Processors:
- Age Restricted Products or Services
- Any business where the anticipated % of International Card Sales is expected to be greater than 20% of total sales
- Bail Bond Services or Bankruptcy Lawyers
- Career Placement or Advice Center Businesses
- Crowd Sourced Fundraising
- Dating Services
- Delayed Delivery Businesses where the good or service provided is not shipped, delivered or fulfilled when the card transaction is processed but is to occur at a future date
- Online Personal Computer Technical Support
- Personal Enhancement Products and/or Nutraceuticals
- Psychic Services
- Shipping or Forwarding Brokers
- Travel Agencies or Tour Operators
- Any product, service or activity that is deceptive, unfair, predatory or prohibited by one or more Card Brands
- Any merchant selling goods or services that represent a violation of any law, statute or regulation
- Any merchant operating outside the United States
- Any merchant submitting sales for payment that resulted from another commercial entity providing goods or services to the cardholder, including those businesses that may otherwise qualify themselves as a Payment Service Company or Payment Facilitator
- Any 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 merchants accepting a card as payment for a dishonored check or for an item deemed uncollectible by another merchant
- Loan payments conducted on a Visa branded credit card
- Adult entertainment and/or adult content websites including Electronic Commerce adult content (videotext) merchants that would include MCC’s 5967,7273 and 7841
- Buyer Clubs/Membership Clubs
- 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
- Gambling Activities and Establishments including MCC 7995, including lotteries, internet gaming, daily fantasy sports, contests, sweepstakes, “special incentives” or offering of prizes as an inducement to purchase goods or services
- Infomercial merchants
- Internet Pharmacies
- Multi-Level Marketing Businesses
- Outbound Telemarketers and Telecom merchants including MCC’s 4814,4816, and 5966
- Payment Facilitators
- Rebate-Based Businesses
- Up-Selling merchants
- Any merchant that accepts a card at a scrip-dispensing terminal
- Airlines including Charter Airlines
- Bestiality
- 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
- Cruise Lines
- Currency Exchanges or Dealers
- Debt Elimination, Debt Reduction or Debt Consulting Services
- Digital Wallet or Prepaid Companies
- Discount Buying Memberships/Clubs
- Discount Medical or Dental plans including Discount Insurance
- Discount Coupon merchants or Online Sites
- Distressed Property Sales and/or Marketing
- Drug Paraphernalia
- e-Cigarettes
- Firearms and weapons including Ammunition
- 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
- Marijuana dispensaries and related products or services
- Money Transfer, Wire Transfers, Money Orders, Transmitters, and Check Cashing including merchants required to be registered as Money Service Business
- ”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 periodically and/or a significantly larger amount
- Pawn Shop
- Prepaid Phone Cards
- Prepaid Phone Services
- Pseudo Pharmaceuticals
- 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
- Transacting Virtual Currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world
21916745.3
Exhibit A Ontario 1.0% 2020 2.5% 2021 .25 ACH
Effective June 2, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.50% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 3.00% 2021 .25 ACH
Effective June 2, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.00% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 1.60% 2021 .30 ACH
Effective June 3, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.30 1.00% 1.60% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Exhibit A Ontario 1.0% 2020 2.55% 2021 .25 ACH
Effective June 4, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.55% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 1.0% 2020 4.00% 2021 .25 ACH
Effective June 9, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 4.00% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective June 8, 2020 to June 9, 2020
DownloadTable of Contents
SwervePay Exhibit A
This Exhibit A is part of the General Terms of Service for All Services.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 4.00% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Exhibit A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
SwervePay.TermsAndConditions
Effective November 12, 2021
DownloadTable of Contents
SwervePay Offerings Terms and Conditions (Last Updated August 26, 2021)
Please read the following carefully because these SwervePay Offerings Terms and Conditions (“Terms and Conditions”) govern your and your business’s use of the Offerings provided by SwervePay, LLC. By enrolling to use and using the Offerings you are accepting these Terms and Conditions on behalf of your business and acknowledge that this is a legal agreement between your business and SwervePay, LLC, a Delaware Limited Liability Company, with offices at 1150 W. Kilgore Ave., Muncie IN 47305 (“SwervePay”).
If you do not agree with these Terms and Conditions and the Sub-Merchant Payment Processing Terms, attached hereto as Exhibit 1, in their entirety, you and your business cannot enroll to use and cannot actually use any of the Offerings. Your use of any of the Offerings will constitute your agreement to these Terms and Conditions even if you do not physically sign this agreement.
1. Client. “Client” means the business that has enrolled to use and will use the Offerings (as defined in Section 5).
2. Enrollment. “Enrollment Form” means the enrollment form completed by Client to use the Offerings and any applicable attachments to the Enrollment Form referenced therein. To use any of the Offerings, Client will need to complete the applicable Enrollment Form and as part of the enrollment process, indicate Client’s agreement to these Terms and Conditions. The Enrollment Form sets forth the fees for the Offerings. If there is any conflict between the Enrollment Form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Terms, these Terms and Conditions will prevail. The enrollment form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Term, form the agreement between the parties (“Agreement”).
3. Effective Date and Term. The date Client accepts these Terms and Conditions by submitting an Enrollment Form is the effective date of the Agreement (“Effective Date”). The Enrollment Form will specify the duration of the initial term of the Agreement from the Effective Date (“Initial Term”). Thereafter, the term of the Agreement will automatically renew for successive one year periods (each a “Renewal Term”), unless a party provides the other party written notice of termination at least 30 days prior to the renewal date. In which case, this Agreement will automatically terminate at the end of the then current Term. “Term” means the Initial Term and any Renewal Term(s).
4. Payment Processing Services. Upon enrollment and approval by SwervePay in accordance with this Agreement, SwervePay shall provide Client with payment processing services that enable Client to accept payments via payment cards, automated clearing house transactions (“ACH”), and other approved electronic payment transactions into Client’s bank account through electronic means (“Payment Processing Services”). SwervePay will provide and Client will use the Payment Processing Services in accordance with the attached Sub-Merchant Payment Processing Terms. However, for card transactions with cards issued by American Express, Discover, or any other closed loop Card Organization, SwervePay shall provide authorization services only, and shall not have any responsibility for the settlement to client of the funds associated with such card transactions. Instead, Client authorizes settlement of transactions to be made directly by American Express, Discover, or other closed loop Card Organization(s).
5. Offerings and Right to Use To the extent SwervePay makes available to Client and Client elects to use any of the following, SwervePay will permit Client to use (a) communication tools, such as texting, e-mail, chatbots, or other electronic means for Client to communicate with Consumers (“Communication Tools”); (b) web-based point of sale system (“Point of Sale Tool”); and (c) payment portals made available over the internet for the purposes of Client to collect payments from Consumers (“Portals”). “Consumer” means any individual or entity making a payment to Client using payment cards, ACH, or other approved electronic payment transactions. “Offerings” means the Payment Processing Services, Communication Tools, Point of Sale Tool, and Portals to the extent Client is using any of the forgoing. Subject to Client paying all necessary Fees and complying with all the other terms of this Agreement, Communication Tools, Point of Sale Tool, and Portals to the extent Client is using any of the forgoing. Subject to Client paying all necessary Fees and complying with all the other terms of this Agreement, SwervePay grants Client a non-exclusive and non-transferable subscription right for Client to use the Offerings for the Term.
6. Fees and Taxes. Client shall pay SwervePay the fees for the Offerings as set forth in the Enrollment Form (“Fees”). SwervePay may modify, increase, add different, or otherwise change the Fees by providing Client 30 days’ advance written notice provided in accordance with Section 29. Client’s continued use of the Offerings will indicate Client’s consent to the change in Fees. If Client does not agree to the change in Fees, Client will need to notify SwervePay in writing of the objection and cease all use of the Offerings. Client acknowledges that the Fees do not include any taxes. Client shall collect, report, and remit any taxes required to be collected, paid, or withheld in connection with the Offerings and Terminals. Taxes are Client’s sole responsibility. SwervePay is not responsible for determining whether or not taxes apply or for calculating, collecting, reporting, or remitting any taxes on Client’s behalf. If a tax authority seeks collection from SwervePay of any taxes in connection with this Agreement, then Client shall reimburse SwervePay upon receipt of notice from SwervePay that SwervePay has paid such tax. SwervePay and its process may make available any reports required by law regarding Client to the Internal Revenue Service or any other Federal or state taxing authority.
7. Terminals. SwervePay may permit Client to purchase point of sale payment card processing terminals (“Terminals”). Upon Client delivering payment for the purchase of the Terminals, Client shall own the Terminals. Client acknowledges that the Terminals are manufactured by third parties and are only provided for Client’s convenience. SwervePay provides all Terminals on “AS IS” basis and without any warranty of any kind. Client assumes all responsibility and liability for its use and the security of the Terminals. SwervePay disclaims all liability related to any defects or vulnerability in the Terminals, any third party hacking or otherwise gaining unauthorized access to the Terminals, or any use of the Terminals by Client.
8. Communication Tools. To the extent Client utilizes the Communication Tools, Client shall obtain all necessary consents from the Consumers to use the Communication Tools to communicate with the Consumer. Client shall comply with any applicable legal obligation, carrier requirements, or industry standards related to communicating with Consumers using the Communication Tools. Client shall make public terms and conditions related to Client’s use of the Communication Tools to communicate with the Consumer and have each Consumer agree to those terms and conditions. To the extent Client uses any Communication Tool that requires the use of a telephone carrier or wireless services provider, Client acknowledges that the applicable messages and associated data will be transmitted through such carriers and providers. Client authorizes SwervePay to disclose all requested information to the carriers and providers to allow Client’s use of the applicable Communication Tools. Client also acknowledges that some of the Communication Tools may require the uploading and transmitting of data and information over the Internet.
9. Implementation. The parties shall cooperate with one another to set up and enable Client’s use of the Offerings. Client acknowledges that the implementation of the Offerings will not begin until SwervePay assigns resources to begin the project. Client shall provide SwervePay with all access to any data, systems and information reasonably required to implement the Offerings. SwervePay will provide all implementation services on a remote basis between the hours of 8 am and 5 pm based on the location of the resources performing the implementation services. Client shall provide at least one qualified Client representative to receive training on the Offerings.
10. Support and Maintenance. After making the Offerings available for Client’s use in a production environment (“Go Live Date”), the parties will cooperate with one another in the administration of the Offerings. Client may contact SwervePay through SwervePay’s designated support communication channels to obtain general support by logging a support ticket. SwervePay will seek to make any Intrusive Changes only during its standard or scheduled maintenance windows. As used in this Section, “Intrusive Changes” means maintenance that will render the Offerings unavailable and “Non-Intrusive Changes” means maintenance that is not intended to make any of the Offerings unavailable. Client acknowledges that SwervePay performs Non-Intrusive Changes as needed.
11. SaaS Offerings. For Offerings either hosted or provided as a software as a service (“SaaS Offerings”), SwervePay may utilize one or more third-party hosting providers to provide the SaaS Offerings and may change hosting providers by providing Client 30 days advance written notice. SwervePay uses reasonable efforts to make any of the SaaS Offerings available. Client acknowledges that SwervePay may make any of the SaaS Offerings unavailable during Scheduled Downtime and for Emergency Maintenance. “Scheduled Downtime” means time required to perform backup, maintenance and restore any of the SaaS Offerings that occurs during SwervePay’s standard maintenance window or during any additional downtime that is scheduled in advance by SwervePay. "Emergency Maintenance" means any corrective action intended to address hardware or software failures, viruses, malware, worms, other disabling code, or other conditions likely to cause degradation, security risks, or interruption, as designated by SwervePay in its reasonable discretion, with or without notice to Client. In using the SaaS Offerings, Client shall not: (a) forge authentication credentials, use the authentication credentials of another user or disclose Client’s authentication credentials to any third party; (b) damage, bypass, break, or otherwise circumvent any of SwervePay’s security mechanisms; (c) use the SaaS Offerings: (i) to attempt to breach, circumvent or hack a third party, (ii) to transmit viruses, malicious, harmful, or deleterious programs or code, (iii) to launch or facilitate a denial of service attack; or (iv) in a manner that otherwise poses a security threat; (d) probe, scan, or test the vulnerability of the SaaS Offerings or monitor data or traffic of the SaaS Offerings without permission from SwervePay; (e) reverse-engineer the SaaS Offerings in order to find limitation, vulnerability or to evade, disable, or render inaccurate accounting billing, capacity limitations, or other functions of the SaaS Offerings; (f) use the SaaS Offerings to encourage, facilitate, engage, or in connection with abuse, harassment, discrimination, fraudulent activities, deceptive practices or other unlawful activities, or harmful or malicious acts; or (g) use the SaaS Offerings in a manner that would violate the Truth in Caller ID Act, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, the Do-Not Call Implementation Act, or any other local, state, federal, or foreign law or regulation. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation, and may terminate this agreement if Client does not cure.
12. Connections. To enable Client’s use of the Offerings, Client shall establish and maintain any necessary connections that meet SwervePay’s standards between Client’s network or systems and the Offerings. Client shall pay all costs related to setting up these connections. Client is responsible for making sure all such equipment functions appropriately and Client shall replace that equipment as needed.
13. Accuracy of Client Data. Client acknowledges that Client is responsible for the accuracy and integrity of the information Client provides through Client’s use of the Offerings and the setting up maintaining of any accounts to use the Offerings. Client is also responsible for adopting procedures to identify and correct errors and omissions in such provided information. Client shall maintain the security of any account user names, passwords and any other login information Client uses to access and use the Offerings and shall promptly notify SwervePay if Client becomes aware of any unauthorized disclosure or use of Client’s account information. Client acknowledges that SwervePay does not review any of Client’s data or information for accuracy, validity, or compliance and SwervePay is not responsible for errors caused by insufficient or inaccurate data. Client shall monitor the contents of any messages being sent through the Offerings.
14. Client’s Compliance with Laws and Standards. Client shall comply with and use the Offerings in a manner that complies with the Operating Rules (as defined in Exhibit 1), the Health Insurance Portability and Accountability Act, the Hi-Tech Act, the Fair Debt Collection Practices Act, the Electronic Funds Transfer Act, the Telephone Consumer Protection Act, the Payment Card Industry Data Security Standards, and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the collection of debts, processing payments, and Client’s business (“Laws and Standards”). Client acknowledges that it has not retained SwervePay to provide guidance, advice, or counsel with respect to compliance with the Laws and Standards. Client takes full responsibility and assumes all risk and liability for Client’s own compliance with the Laws and Standards and Client’s use of the Offerings in compliance with the Laws and Standards. Client will reimburse SwervePay for any fines, legal expenses, reasonable attorneys’ fees, or out of out of pocket costs incurred by SwervePay because of Client’s failure to comply with these Laws and Standards. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation.
15. Proprietary Rights. SwervePay retains sole and exclusive ownership of all right, title and interest in the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides to Client under this Agreement. To the extent necessary to verify this ownership, Client agrees to and hereby does assign to SwervePay all copyrights, patent rights, title, and all other proprietary rights to the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides under this Agreement. Client shall not alter, modify, adapt, translate, copy, reverse engineer, decompile, disassemble, or create any derivative works of the Offerings. Client shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that are contained in the Offerings or any related information, documentation, or deliverables. Client shall not attempt to circumvent or circumvent any user limits, license keys, or other license, timing or use restriction built into the Offerings.
16. Confidentiality. The party receiving information (“Recipient”) from the other party (“Discloser”) shall treat Discloser’s information as confidential (“Confidential Information”) unless: (1) Recipient is able to demonstrate that the Confidential Information was known to Recipient prior to the disclosure; (2) Recipient is able to demonstrate the Confidential Information is part of the public domain; or (3) Recipient’s personnel, without knowledge of the Confidential Information, independently develops the information. Except as permitted under this Agreement, Recipient shall only use the Confidential Information to perform its obligations and shall not disclose or permit any third party to disclose any Confidential Information to any other person. Recipient shall not and shall not permit any third party to reproduce the Confidential Information or any portions thereof unless such reproductions are permitted by or are necessary for Recipient to perform its obligations under this Agreement. Recipient shall ensure that all reproductions of Discloser’s Confidential Information contain (if any) Discloser's proprietary or confidentiality notices in the same manner in which such notices were set forth in or on the original. Recipient will protect the Discloser's Confidential Information in the same manner that it employs to protect its own Confidential Information and in no event, will Recipient use less than reasonable efforts to protect the Discloser's Confidential Information from disclosure. Recipient may disclose the Confidential Information to its employees, subcontractors, advisors, or affiliates, who have been informed of the confidential nature of the Confidential Information and who have obligations of confidentiality that protect such types of information from disclosure to third parties. If Recipient is required by law or court order to disclose Discloser’s Confidential Information, Recipient may disclose the Confidential Information; subject to, where legally permitted, Recipient will: (1) provide Discloser prompt and advance written notice of the requirement; and (2) after providing the notice, reasonably assist Discloser, at Discloser's election and expense, in seeking to obtain an order protecting the information from further disclosure.
17. Use of Data. Client acknowledges that (a) SwervePay provides Offerings under this Agreement that will utilize the data provided by Client to allow Client to collect payment and generate communications with individuals, and to achieve other desired outcomes; and (b) SwervePay collects statistical, system, user experience and other data related to Client’s use of the Offerings for the purposes of: (1) monitoring and improving the functionality of the Offerings; (2) offering trending or statistical De-Identified Data to SwervePay’s user base; and (3) aggregating and using De-Identified Data for SwervePay’s own business purposes as described in any applicable privacy policy for the Offerings. “De-Identified Data” means data that does not identify Client and does not identify any individual or identify any entity. SwervePay shall only use De-Identified Data in a manner that complies with applicable laws. Client authorizes SwervePay to transmit and share data submitted by Client to SwervePay’s processor, applicable financial institutions, Card Organization(s), and/or any other person or entity to facilitate the provision of the Payment Processing Services.
18. SwervePay Warranties. SwervePay warrants that SwervePay uses reasonably qualified personnel to provide the services. Client's sole and exclusive remedy for a breach of this warranty is SwervePay re-performing of the applicable services at no additional cost to Client. SwervePay warrants that SwervePay complies with the applicable Operating Rules and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the processing of payments, and SwervePay’s business. Client acknowledges that Client is not relying upon any other representations, warranties, or promises that are not contained in this Agreement. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, SWERVEPAY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE OFFERINGS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE REGARDING MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. SWERVEPAY DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL MEET CLIENT'S REQUIREMENTS OR THAT THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
19. Sunsetting. SwervePay may cease providing any of the Offerings by providing Client with at least 12 months advance written notice that the applicable Offering is being sunset. After that 12 month period, SwervePay will have no further obligations related to the applicable Offering and will cease charging Client for any applicable Fees associated with the sunsetted offering.
20. Termination for Breach. If either party breaches this Agreement in any manner, the other party may terminate this Agreement by first providing the breaching party with written notice describing the breach in detail and allowing the breaching party 30 days after receipt of the notice to cure the breach. If the breaching party fails to cure, this Agreement will automatically terminate at the end of the 30-day cure period.
21. Effect of Termination. If this Agreement is terminated prior to the end of a Term for any reason other than SwervePay’s uncured breach of this Agreement, Client shall pay to SwervePay a fee equal to the remaining number of months for the current Term at the time of termination multiplied by the greater of: (a) the Minimum Monthly Fee; or (b) the average Actual Monthly Processing Fee Client paid to SwervePay over the prior 6 months (“Early Termination Fee”). Client will reimburse SwervePay for any costs, legal expenses, and attorneys’ fees incurred related to enforcing this Agreement and collecting the Early Termination Fee. Client acknowledges and agrees that (a) this Early Termination Fee is not a penalty but rather, a reasonable calculation of the financial harm caused to SwervePay for this Agreement terminating early; and (b) the payment of the Early Termination Fee is an addition to any other remedy available to SwervePay under this Agreement or under the law or in equity. SwervePay will either collect the Early Termination Fee in the same manner that it collects all other fees under this Agreement or will invoice Client for the Early Termination Fee and Client shall pay the invoice within 30 days of the date of the invoice. Within 90 days of termination or expiration of this Agreement, Recipient will destroy and purge from its computer systems the Discloser’s Confidential Information (including all copies, excerpts and summaries thereof), except to the extent such Confidential Information is stored pursuant to the Recipient’s standard back-up procedures or retained to meet Recipient’s legal or regulatory requirements or Recipient’s internal audit, document retention or internal compliance requirements. If the Discloser’s Confidential Information is retained as permitted in this Section, the Recipient will continue to abide by the confidentiality obligation of this Agreement until the Recipient ceases retaining such Confidential Information. Recipient shall destroy and purge such Confidential Information within the normal timeframe for deleting and purging such data. Client acknowledges that SwervePay retains transaction records as required by applicable law and the Operating Rules and that information is not considered Client’s Confidential Information. Upon request by the Discloser, the Recipient will certify in writing that the Recipient has complied with its obligations under this Section. Sections 6, Sections 14-16, the disclaimer in Section 18, Sections 21-24, Sections 29-32 of these Terms and Conditions and Section 17 of the attached Sub-Merchant Processing Payment Terms survive termination of this Agreement.
22. Indemnification. Each party shall indemnify and defend the other party, its affiliates, and its officers, directors, and employees, from and against any third party claims, losses, damages, liabilities, lawsuits, and expenses (including reasonable attorneys’ fees, court costs and other defense expenses) arising out of or resulting from: (a) the indemnifying party’s failure to comply with the Operating Rules; (b) the indemnifying party’s breach of any warranty or representation under this Agreement; and (c) a data security breach or unauthorized access or disclosure of Client data or Consumer information arising out of any act or omission of the indemnifying party, its affiliates, or contractors. The indemnified party shall notify the indemnifying party of any claim that falls under this Section promptly after the indemnifying party learns of such claim; provided, however, that the indemnifying party will only be relieved of its obligations under this Section due to the failure of the indemnified party to provide such prompt notice to the extent that the failure materially prejudices the indemnifying party in defending such claim. The indemnifying party’s obligations under this Section are conditioned upon the indemnified party: (i) providing all reasonably requested information and cooperation to the indemnifying party; and (ii) giving the indemnifying party sole control of the defense or settlement of such claim, at the indemnifying party’s sole cost and expense; provided, however, that the indemnifying party may not settle any such claim in a manner that requires the indemnified party to admit fault or incur any direct expense without the consent of the indemnified party, which will not be unreasonably withheld or delayed. If the indemnifying party fails to timely undertake the defense of a claim under this Section, each of the indemnified parties may undertake the defense (including settlement) of such claim and the indemnifying party will reimburse the indemnified parties for all such costs.
23. Limitation of Liability. FOR ANY CUASES OF ACTION, CLAIMS, OR ASSERTIONS ARISING UNDER OR RELATED TO THIS AGREEMENT OR TO THE OFFERINGS (EACH A "CLAIM"), SWERVEPAY'S LIABILITY IN THE AGGREGATE TO CLIENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO SWERVEPAY PURSUANT TO THIS AGREEMENT DURING THE 6 MONTHS PRIOR TO THE DATE THE CLAIM IS MADE, REGARDLESS OF THE FORM OF ACTION (WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE). IN NO EVENT WILL SWERVEPAY BE LIABLE TO CLIENT FOR ANY LOST PROFITS OR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES OF ANY TYPE OR NATURE, EVEN IF SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT FEES OR CHARGES OF THE CARD ORGANIZATIONS OR OTHER THIRD PARTIES PASSED THROUGH TO CLIENT PURSUANT TO THIS AGREEMENT WILL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO SWERVEPAY WHEN DETERMINING SWERVEPAY’S LIABILITY UNDER THIS SECTION. CLIENT EXPRESSLY AGREES TO PAY ANY FEES OR ASSESSMENTS LEVIED BY ANY CARD ORGANIZATION AS A RESULT OF ANY ACTIVITY ASSOCIATED WITH CLIENT’S MERCHANT ACCOUNT, AND THAT SWERVEPAY IS NOT LIABLE FOR ANY SUCH FEES OR ASSESSMENTS UNDER ANY CIRCUMSTANCES. FURTHER, UNDER NO CIRCUMSTANCES WILL SWERVEPAY HAVE ANY LIABILITY TO CLIENT FOR PLACING CLIENT ON THE MATCH LIST BASED ON A GOOD FAITH, REASONABLE BELIEF BY SWERVEPAY THAT SUCH PLACEMENT WAS PROPER.
24. Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the state of Indiana in the United States without regard to conflict of law principles. All disputes arising out of or related to this Agreement will be exclusively brought and exclusively maintained in the State courts located in Delaware County, Indiana, or the United States District Court for the Southern District of Indiana, Indianapolis Division (or upon appeal, to the appellate courts of corresponding jurisdiction to such State or Federal court). Each party consents to and waives any objection to the exclusive personal jurisdiction and venue of such State and Federal courts.
25. Government Sales. This section applies to all acquisitions of the Offerings and documentation (collectively or individually for the purposes of this section, the “Government Acquired Products”) by or for the government of the United States of America or other government entity (the “Government”), or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the Government. By accepting delivery of the Government Acquired Products, Client hereby acknowledges that (a) the Offerings and documentation have been developed exclusively at private expenses, (b) the software based Offerings are commercial software and the documentation is commercial software documentation within the meaning of the acquisition regulation(s) applicable to this procurement, (c) the terms and conditions of this Agreement govern the all use and disclosure of the Government Acquired Products, and will supersede any conflicting contractual terms or conditions, and (d) this Agreement meets the Client’s needs or is consistent in all respect with United States law.
26. Force Majeure. Except for Client's payment obligations hereunder, a party will not be responsible for any failure to perform due to acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, strikes, or other causes beyond its reasonable control (each a "Force Majeure Event") provided that such party gives prompt written notice to the other party of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event. If the Force Majeure Event causes a delay of more than three months, either party may terminate an Order or this Agreement without penalty by providing written notice to the other party.
27. No Transfer or Assignment. Without obtaining SwervePay’s advance prior written consent, Client shall not assign, transfer, sublicense, subcontract, or otherwise delegate, in whole or in part any of Client’s rights, duties or obligations under this Agreement, including the right to receive settlement of funds pursuant to this Agreement. Any assignment, transfer, or delegation made by Client without complying with this Section is null and void and will permit SwervePay to terminate this Agreement immediately upon providing written notice to Client. Any, indirect or direct, change of ownership of Client is considered an assignment.
28. Export. Client shall not export or re-export the Offering without the prior written authorization of SwervePay and, as may be required under United States laws and regulations, the prior written authorization of the United States Department of Commerce or any other relevant Federal agency. SwervePay does not represent that the Offerings are appropriate or available for use in other countries. If Client obtains SwervePay’s authorization to export the Offerings, Client is solely responsible for compliance with all applicable laws, including export and import regulations of other countries.
29. Notices to Client. Client consents to do business electronically with SwervePay and receive electronic communications from SwervePay under this Agreement. SwervePay may provide Client notices, disclosures, or other information about the Offerings and Fees charged under this Agreement. Client agrees that SwervePay may provide this information and these notices by making them available on SwervePay’s website, through any mobile application in use by Client, or by sending Client an e-mail to Client’s email of record with SwervePay when Client signed up for any of the Offerings. Notices provided on the website or through a mobile application will be deemed given and received within 24 hours of posting and notices sent to Client’s email will be deemed given and received on the date of transmission. Alternatively, SwervePay may provide written notice by delivering the notice to Client at the most recent address that SwervePay has on file for such Client. Notices provided to Client’s most recent address will be deemed given and received at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if by a reputable overnight delivery service with tracking capabilities. Client may update the address of its principal office by providing notice to SwervePay.
30. Notices to SwervePay. All written notices to SwervePay under this Agreement need to be in writing and delivered to SwervePay at its principal office (currently, 1150 W. Kilgore Ave; Muncie, IN 47305) and to the attention of the “Legal Department”. The notice is deemed received by a party at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S. certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if sent by a reputable overnight delivery service with tracking capabilities. SwervePay may update the address of its principal office by providing notice to Client.
31. Amendments. SwervePay may update these Terms and Conditions or the attached Sub-Merchant Payment Processing Terms at any time by providing Client with at least 90 days advance written notice. By continuing to use the Offerings after this 90 day period, Client will be deemed to have accepted the updated Terms and Conditions or updated Sub-Merchant Payment Processing Terms (“Updated Terms”). If Client does not agree to the Updated Terms, Client will prior to the expiration of the 90 day period, cease all use of the Offerings and notify SwervePay that Client is terminating this Agreement. If Client does not provide such notice within the 90 day period, Client’s right to terminate under this Section will expire. SwervePay may withdraw the Updated Terms within 30 days of when Client notifies SwervePay of Client’s desire to terminate this Agreement and have the Agreement continue under the unaltered Terms and Conditions or unaltered Sub-Merchant Payment Processing Terms. If SwervePay does not withdraw the Updated Terms, then this Agreement will terminate in accordance with Client’s notice.
32. General. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals, prior agreements, and other communications (oral or written) between the parties relating to the subject matter of this Agreement. A waiver by either party of or a party’s delay exercising its rights under this Agreement does not constitute a waiver of any other provision, breach, or default. If any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions will remain in effect. This Agreement inures to the benefit of and binds the parties, their permitted successors, heirs, and assigns. In all matters relating to this Agreement, Client and SwervePay will act as independent contractors. Neither party shall represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as an agent, employee, franchisee, or in any other capacity. Except as it relates to each of the party’s obligations under Section 22, the parties hereby agree that there are no third party beneficiaries under this Agreement.
Exhibit 1
Sub-Merchant Payment Processing Terms
1. Payment Facilitator Relationship. SwervePay is a Payment Facilitator. “Payment Facilitator” is defined by the Operating Rules and generally refers to a service provider that is registered with a processer to facilitate the processing of payment transactions on behalf of sub-merchants. As a Payment Facilitator, Client acknowledges that SwervePay is not a bank, that there is no fiduciary relationship between Client and SwervePay, and that SwervePay enters into agreements with other processors and banks to provide the Payment Processing Services.
2. Operating Rules. In using the Payment Processing Services, Client shall comply at all times with the Operating Rules. “Operating Rules” means (1) the by-laws, operating regulations and all other rules policies and procedures of MasterCard International, Inc. (“MasterCard”), VISA USA, Inc. (“Visa”), Discover, American Express, and other payment networks (“Card Organizations”); (2) the Payment Card Industry Data Security Standard; (3) the VISA Cardholder Information Security Program and Payment Application Best Practices; (4) the MasterCard Site Data Protection Program and POS Terminal Security Program; (5) American Express’s Data Security Operating Policy; (6) Discover’s Information Security & Compliance Program; and (7) any other program or requirement that may be published or mandated by MasterCard, Visa, Discover, American Express, or other payment networks/card associations.
3. Sub-Merchant Account. To use the Payment Processing Services Client shall work with SwervePay to set up and maintain one or more sub-merchant accounts by: (1) providing all required documentation and information, and (2) cooperating with SwervePay’s due diligence, Office of Foreign Asset Control related inquiries, and underwriting efforts. Client shall provide and maintain accurate and complete information with SwervePay to enable SwervePay to provide the sub-merchant accounts and the Payment Processing Services. Client authorizes SwervePay to share any such information with SwervePay’s processors, the sponsor bank, Client’s financial institutions, the Card Organizations, or to any other person or entity whose involvement is necessary to provide the Payment Processing Services. Client acknowledges that SwervePay will perform ongoing risk assessments related to Client’s sub-merchant accounts in accordance with the Operating Rules. Client authorizes SwervePay to request reports about Client from consumer reporting agencies, and Client shall cooperate to provide all documents requested by SwervePay to perform ongoing monitoring and analysis of Client’s financial condition. If any information is identified in these activities by SwervePay that either prevents SwervePay from being able to establish a sub-merchant account for Client or requires that SwervePay terminate Client’s existing sub-merchant account, SwervePay may immediately cease providing the Payment Processing Services, the other Offerings, and terminate this Agreement by providing notice to Client.
4. Client Warranties and Obligations. Client warrants that the individual entering into this Agreement on behalf of Client is at least 18 years of age and is authorized to enter into this Agreement. Client further warrants (a) it is either a legal resident of the United States, a United States citizen, or a legal business entity authorized to conduct business in one of the states in the United States; (b) the name identified by Client when Client completed the Enrollment Form is Client’s name under which Client operates and will obtain payment transactions; and (c) Client is in good standing, has all necessary licenses and permits to operate its business, and has all necessary right, power, and ability to comply with the terms of this Agreement. Client shall only use the Payment Processing Services within the United State. Client shall provide SwervePay with timely notification of any: (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; (iii) an adverse governmental or regulatory actions taken against Client; (iv) any change in the nature of Client’s products or services that makes the products or services materially different to what was previously represented to SwervePay; and (v) any other adverse changes that would interfere with Client’s ability to fulfill Client’s obligations under this Agreement. Client shall fulfill all obligations to Client’s customers related to any payment transaction and will be solely responsible for and resolve any dispute or complaint with a Payer.
5. Restrictions. Client shall:
b. not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (1) adult content; (2) airline or cruise line; (3) credit counseling or identity protection services; (4) sales to or from operations outside the United States of America and Canada; (5) distressed property sales and marketing; (6) gambling establishments or gambling; (7) card not present tobacco or pharmaceutical sales; (8) goods or services sold through rebate or upsell programs; (9) timeshare resales and related marketing of goods, services or properties; (10) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; or (11) buyer club activities or buyer club memberships.
c. not submit any transaction that: (1) adds any surcharge or other amount to the transaction as a condition of paying with a payment card, except to the extent authorized by the Operating Rules and applicable law; (2) adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately; (3) represents the refinancing or transfer of an existing Payer obligation that is deemed to be uncollectible or arises from the dishonor of a Payer’s personal check or from the acceptance of a Card at a terminal that dispenses scrip; (4) is not a valid transaction between the Client and a bona fide Payer; (5) Client knows or should have known to be fraudulent or not authorized by the Payer; (6) does not result from an act between Client and the Payer; or (7) required a valid authorization and it was not obtained.
d. not submit any refund transaction: (1) that does not correlate to an original sales transaction from the Payer; (2) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Payer for postage paid by the Payer to return merchandise in accordance with a policy applied consistently by Payer to all Client customers, (3) for returned products that were acquired in a cash purchase from Client; (4) that would cause an overdraft; or (5) more than three business days following either: (A) a regulatory requirement granting a Payer’s right to a refund; or (B) a non-disputed Payer request;
e. not transfer or attempt to transfer Client’s financial liability by asking or requiring Payer to waive their dispute rights; and
f. not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
6. Direct Processing Agreement. In accordance with the Operating Rules, SwervePay may need to have Client execute a direct agreement with SwervePay’s payment processor, in the form provided by SwervePay’s processor. Client will execute that direct agreement upon SwervePay’s request. If a direct agreement is deemed required and Client fails to enter into it upon request or the payment processor terminates the direct agreement at any time, SwervePay may cease providing the Offerings and terminate this Agreement by providing written notice to Client.
7. Deposit Account. As part of the Enrollment Form and for any subsequent account Client opens related to the Payment Processing Services, Client shall complete an Authorization for Direct Deposits form and for the duration of this Agreement, Client shall maintain one or more commercial checking account(s) to facilitate payment of payment transactions and automated clearing house network transfers between SwervePay and Client (“Deposit Account”). Client will notify SwervePay in writing any time there is a change in the Deposit Account information that will materially affect the ability of SwervePay to facilitate ACH transactions to Client’s Deposit Account. Client acknowledges that SwervePay is not responsible for any failure of Client to receive an ACH transfer that is caused by Client failing to maintain the Deposit Account or accurate Deposit Account information with SwervePay. Client shall maintain sufficient funds in the Deposit Account to accommodate the payment of any Fees, Chargeback liabilities, charges associated with the purchase of Terminals, or payment of any assessments from the Card Organizations.
8. Distribution of Funds to Client. Within one to two business days of a deposit of the funds from a payment by a Payer of an obligation due to Client into the Settlement Bank Account (“Funds”), SwervePay will have the Member Bank transmit via an ACH transfer to Client’s Deposit Account the Funds owed to Client provided that SwervePay receives a valid authorization code from the applicable Card Organization. Client further acknowledges that availability of the Funds for use by Client is subject to the control of the banking institutions and SwervePay is not responsible for any delay caused by the banking institutions. “Settlement Bank Account” means a bank or escrow account maintained by the Member Bank for receipt of payments made through the Payment Processing Services. “Member Bank” means a financial institution that provides credit card processing services for SwervePay under this Agreement. Each transaction will be considered complete when SwervePay has received the Funds and when such Funds have been accepted by Client’s designated bank or financial institution.
9. Chargebacks. A “Chargeback” occurs if a charge or transaction is reversed or returned for any reason to Client’s sub-merchant account by a Payer or card issuer. Client is solely responsible for the payment of all Chargebacks, and under no circumstances shall SwervePay be responsible for Chargebacks. Further, if a Chargeback occurs for any reason, Client will pay to SwervePay any administrative fees set forth in the Enrollment Form that reflects SwervePay’s involvement in the Chargeback resolution process. For any Chargeback, Client will also pay all credit card, debit card, bank, and ACH transaction fees, fines or penalties and refund all Funds transferred to Client’s Deposit Account corresponding to the Chargeback amount. Client will be notified of the Chargeback and of the amount due. If Client has a reason to dispute the Chargeback, Client has to dispute the Chargeback based on the date provided in the Chargeback notice. SwervePay has no independent obligation to investigate, dispute, or attempt to obtain reversal or adjustment of any Chargeback. SwervePay may deduct, and Client authorizes SwervePay to deduct, the amount of any Chargeback and any associated fees, fines, or penalties assessed by each processor and bank from: (a) Client’s sub-merchant account, (b) Client’s Reserve Account (if applicable), (c) Client’s Deposit Account; or (d) any amounts due to Client. If Client is incurring an excessive number of Chargebacks, SwervePay may increase the Fees, may hold back settlement of funds, establish or increase the fund requirements for a Reserve Account, or terminate this Agreement by providing written notice to Client. Client is responsible for monitoring Client’s monthly Chargeback percentage and developing Chargeback reduction programs as required by the Card Organizations.
10. Correcting Payment Errors. Client authorizes SwervePay, SwervePay’s processor, or Member Bank to debit the Deposit Account or Reserve Account for any misdirected deposits, duplicate deposit, or inadvertent overpayments into Client’s Deposit Account. This debit authorization survives the termination of this Agreement until SwervePay validates that there are no Incorrect Deposits that need to be addressed.
11. Statements and Client Review. SwervePay shall make available to Client statements and transaction reports reflecting Client’s sub-merchant account activity (“Statements”). Client acknowledges that Client has 90 days from when the Statements are made available to Client to review the Statements for accuracy. Subject to Client providing SwervePay with written notice of any dispute or discrepancy related to the Statement within that 90 day period, Client may reasonably dispute a Statement. Upon receipt of the dispute by SwervePay, SwervePay will review the disputed Statement and the parties will work together in good faith to resolve the dispute. If it is determined that SwervePay owes any additional amounts to Client, SwervePay will disperse that amount in accordance with Section 8 of this Exhibit. Client agrees that SwervePay will not be liable to Client or have any obligation to resolve any discrepancy in any Statement that Client does not dispute in accordance with this Section. Client’s failure to follow the dispute resolution procedures in this Section shall result in all such disputes being waived by Client.
12. Reserve Account. Upon notice to Client, SwervePay may elect or be required by SwervePay’s payment processor to establish a non-segregated account at a financial institution to ensure payment of all of Client’s payment or Fee obligations under this Agreement (“Reserve Account”). Client hereby permits SwervePay to fund the Reserve Account through (a) debiting the Deposit Account; (b) withholding Funds and depositing those funds in the Reserve Account; or (c) invoice Client and Client will pay such invoice within 30 days of the date of the invoice. SwervePay may continue to hold the Reserve Account with any amounts in it for up to one year after the termination of this Agreement. Client acknowledges that Client will not receive any interest on the amounts in the Reserve Account and has no right to access the amounts in the Reserve Account until SwervePay closes the Reserve Account and provides all amounts (if any) in the Reserve Account to Client. SwervePay will close the Reserve Account and release any amounts to Client once Client satisfies all payment obligations under this Agreement. The funds in the Reserve Account will be deemed to be the exclusive property of SwervePay, and not the merchant, while SwervePay holds such funds. Without in any way limiting the foregoing, and merely as an additional form of security, Client hereby further grants SwervePay a security interest in the Reserve Funds to the full extent necessary to satisfy any of Client’s obligations to SwervePay. SwervePay may enforce its security interest with or without notice or demand. The security interest(s) granted under this section will continue after termination of this Agreement until Client satisfies all its obligations to SwervePay. Client further agrees to execute and deliver to SwervePay such instruments and documents as SwervePay may reasonably request to confirm and perfect the security interest(s) granted by this Agreement.
13. Investigations and Sharing of Information. If SwervePay reasonably believes that a transaction is in violation of this Agreement, is illegal or otherwise may cause harm to SwervePay, Client, a Payer, or SwervePay’s processor, SwervePay may choose not to authorize, process, or settle the transaction. If SwervePay discovers any such transaction or any other unusual or unexpected transaction activity on Client’s sub-merchant account, Client authorizes SwervePay to hold Funds while SwervePay conducts an investigation into the transaction activity. As part of such investigation and upon SwervePay’s request, Client will provide all documentation requested to support or otherwise validate any transaction being investigated. As part of any SwervePay investigation or if required by law, court order, or a request from law enforcement or a governmental entity, SwervePay may withhold and defer the distribution to Client of any Funds until such investigation concludes, or such legal or governmental requirement no longer applies. If SwervePay reasonably believes that the Payment Processing Services have been used for an illegal, unauthorized or criminal purpose, Client expressly authorizes SwervePay to share information about Client, Client’s sub-merchant account, or Client’s transactions with Client’s banks, Client’s financial institutions, SwervePay’s processor, the Card Organizations, SwervePay’s advisors, and with law enforcement and governmental entities. If SwervePay reasonably believes in good faith that that Client needs to be reported under the Operating Rules, Client acknowledges that SwervePay may report Client to the MATCH list (Member Alert to Control High-Risk), the Card Organizations, any applicable governmental agency or law enforcement agency.
14. Honoring Cards. Client has the responsibility to validate the identity of the Payer and the Payer’s payment card information. If Client determines a payment card is expired or that the account number is listed on a current Electronic Warning Bulletin file or the account number does not match the card’s magnetic strip or chip, Client will not honor the payment card or the transaction. Client shall ensure that the Payer understands Client is responsible for the transaction and all the details related to the charges that will be processed on Payer’s payment card. Client shall maintain return and refund policies that comply with the Operating Rules and disclose to Payers any refund or return policies Client has. Unless a Payer expressly declines a written receipt, Client shall make a receipt available to a Payer for any transaction, whether in writing or via electronic means. Notwithstanding Client’s obligations herein SwervePay shall have the right, in its sole discretion, to decline to process any transaction that it believes is improper, fraudulent, unlawful, or otherwise in violation of any Laws and Regulations.
15. Client’s Security Obligations. Client shall keep all payment card, account information and personal information of a Payer (“Payer Information”) confidential and not disclose such information to a third party except as permitted under the Laws and Standards. Client shall keep Payer Information in a secure manner to prevent disclosure to unauthorized parties and in a manner that complies with all the Laws and Standards. Upon SwervePay’s request, Client will provide proof to SwervePay of Client’s compliance with the Laws and Standards. Client will only use the Payer Information for obtaining payment and not use or disclose the Payer Information for marketing purposes or any other unauthorized use without express consent of the Payer. Client shall immediately notify SwervePay if: (a) Client has reason to believe that Client’s sub-merchant account is no longer secure or being used for unauthorized purposes; or (b) Client discovers or has reason to suspect that a data breach has occurred. In any such event, Client will fully cooperate, at its expense, with all remediation efforts, forensic examination, and mitigation procedures required under the Laws and Standards or reasonably requested by SwervePay, the Card Organizations, SwervePay’s processor, and any of the parties’ banks or financial institutions. Client acknowledges that any failure to comply with the Laws and Standards or the occurrence of any data breach suffered by Client may result in Client being assessed penalties or fines by the Card Organization and Client shall pay those penalties and fines.
16. Third Parties. To the extent Client uses any third party to process, store, receive, transmit, or otherwise have access to Payer Information, Client assumes full responsibility and liability for such third party’s compliance with this Agreement and the Laws and Standards. SwervePay is not liable for the acts or omissions of such third parties. Client further agrees to notify SwervePay of the identity of all such third parties if those third parties relate to the Payment Processing Services and to ensure that such third parties are properly registered, if required to be so, with the Card Organizations. SwervePay may require any such third parties to undergo testing, approval, and certification by SwervePay or SwervePay’s bank or processer. SwervePay may, at any time, also terminate such third parties’ access to or ability to integrate with SwervePay. For the sake of clarity, SwervePay’s affiliates or subcontractors are not considered a third party under this Section.
17. Termination and Suspension Rights. In addition to the termination rights set forth in the Terms and Conditions, SwervePay may suspend providing the Payment Processing Services to Client upon providing notice to Client, if Client: (a) has violated these Sub-Merchant Payment Processing Terms or any of the Laws and Standards; (b) poses an unacceptable credit or fraud risk, as determined by SwervePay, SwervePay’s processor, or the Card Organizations; (c) becomes subject to any investigation or enforcement action by law enforcement or a governmental entity; (d) falls outside of SwervePay’s credit policies; (e) provides any false, incomplete, inaccurate, or misleading information or otherwise engages in fraudulent or illegal conduct; or (f) becomes part of the MATCH list or Terminated Client File maintained by MasterCard. If SwervePay suspends providing the Payment Processing Services for any of the foregoing reasons and the circumstances do not change after 30 days, SwervePay may terminate this Agreement by providing written notice to Client. Upon suspension of the Payment Processing Services or termination of this Agreement for any reason, (i) all pending transactions will be cancelled; (ii) Client shall pay all Fees and any other amounts owed to SwervePay that were accrued prior to the termination; and (iii) Client will remain liable for any and all Chargebacks, credits, adjustments, penalties, fines, costs, and all other amounts that become due prior to or after the suspension or termination. As part of the suspension or termination of the Agreement, SwervePay may establish and maintain a Reserve Account in accordance with Section 14 of this Exhibit. If Client is subject to an investigation or enforcement action at the time Client seeks to close a Client sub-merchant account, SwervePay may retain the Funds in the sub-merchant account or a Reserve Account until the investigation or action is completed.
18. Provisions Specific to American Express. If Client is accepting American Express card payments, Client agrees to the following in connection with its acceptance of American Express cards:
a) Any request to accept American Express cards is subject to approval by American Express. If approved, Client authorizes SwervePay to submit American Express card transactions to American Express. Client also agrees to accept settlement from American Express.
b) The American Express Merchant Operating Guide is incorporated into this Agreement by reference and available at the following link: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf. Client’s acceptance of American Express cards must be in accordance with American Express’s Merchant Operating Guide and any other rules promulgated by American Express, as amended from time to time.
c) Client may opt out of receiving commercial marketing materials from American Express without affecting Client’s ability to accept American Express cards or to receive important transactional or relationship messages from American Express.
d) Client agrees that American Express may use information obtained from Client to screen or monitor Client in connection with American Express card marketing and administrative purposes. In addition, American Express may use data obtained from Client to perform American Express’s responsibilities with the American Express OptBlue Program, to promote the American Express network, to perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes, and important transactional or relationship messages.
e) Client agrees that it may be converted from American Express Card acceptance pursuant to this Agreement to a direct American Express Card acceptance relationship with American Express if and when it becomes a High CV Merchant. “High CV Merchant” means a merchant with either (1) greater than $1 million in American Express Card Transaction volume (including volume from all Merchant locations) in a rolling 12 month period; or (2) greater than $100,000 in American Express Card Transaction volume (including all volume from all merchant locations) in any three consecutive months. Client will be notified if such a conversion is required and upon such conversion, Client will be bound by American Express’s then-current Card Acceptance Agreement and Client agrees that American Express will set pricing and other fees payable by Merchant for American Express Card acceptance.
f) Upon termination of this Agreement or of Client’s ability to accept American Express Cards hereunder, Client agrees to remove American Express identifying marks from Client’s website and wherever else they Client displays them.
g) Client agrees to have a refund policy for transactions on American Express cards that is at least as favorable as the refund policy or transactions on other card types.
h) Client acknowledges that it may opt out of accepting American Express cards at any time without affecting its right to accept other payment cards.
i) American Express is a third party beneficiary to this Agreement with respect to the rights in this Agreement, but not the obligations and will be able to enforce the terms of this Agreement against the Client as it relates to Client’s accepting of American Express card payments.
Client: {{{Customer_Legal_Name}}} | |
By: {{{Customer_Signor}}} | |
Its: {{{Customer_Signor_Title}}} | |
Date of Execution: {{{Todays_Date}}} | |
Address: {{{Customer_Street_Address}}} {{{Customer_City}}} {{{Customer_ZipCode}}} {{{Business_State}}} | |
Email: {{{Customer_Signor_Email}}} |
Effective October 6, 2021 to November 12, 2021
DownloadTable of Contents
SwervePay Offerings Terms and Conditions (Last Updated December 1, 2020)
Please read the following carefully because these SwervePay Offerings Terms and Conditions (“Terms and Conditions”) govern your and your business’s use of the Offerings provided by SwervePay, LLC. By enrolling to use and using the Offerings you are accepting these Terms and Conditions on behalf of your business and acknowledge that this is a legal agreement between your business and SwervePay, LLC, a Delaware Limited Liability Company, with offices at 1150 W. Kilgore Ave., Muncie IN 47305 (“SwervePay”).
If you do not agree with these Terms and Conditions and the Sub-Merchant Payment Processing Terms, attached hereto as Exhibit 1, in their entirety, you and your business cannot enroll to use and cannot actually use any of the Offerings. Your use of any of the Offerings will constitute your agreement to these Terms and Conditions even if you do not physically sign this agreement.
1. Client. “Client” means the business that has enrolled to use and will use the Offerings (as defined in Section 5).
2. Enrollment. “Enrollment Form” means the enrollment form completed by Client to use the Offerings and any applicable attachments to the Enrollment Form referenced therein. To use any of the Offerings, Client will need to complete the applicable Enrollment Form and as part of the enrollment process, indicate Client’s agreement to these Terms and Conditions. The Enrollment Form sets forth the fees for the Offerings. If there is any conflict between the Enrollment Form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Terms, these Terms and Conditions will prevail. The enrollment form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Term, form the agreement between the parties (“Agreement”).
3. Effective Date and Term. The date Client accepts these Terms and Conditions by submitting an Enrollment Form is the effective date of the Agreement (“Effective Date”). The Enrollment Form will specify the duration of the initial term of the Agreement from the Effective Date (“Initial Term”). Thereafter, the term of the Agreement will automatically renew for successive one year periods (each a “Renewal Term”), unless a party provides the other party written notice of termination at least 30 days prior to the renewal date. In which case, this Agreement will automatically terminate at the end of the then current Term. “Term” means the Initial Term and any Renewal Term(s).
4. Payment Processing Services. Upon enrollment and approval by SwervePay in accordance with this Agreement, SwervePay shall provide Client with payment processing services that enable Client to accept payments via payment cards, automated clearing house transactions (“ACH”), and other approved electronic payment transactions into Client’s bank account through electronic means (“Payment Processing Services”). SwervePay will provide and Client will use the Payment Processing Services in accordance with the attached Sub-Merchant Payment Processing Terms. However, for card transactions with cards issued by American Express, Discover, or any other closed loop Card Organization, SwervePay shall provide authorization services only, and shall not have any responsibility for the settlement to client of the funds associated with such card transactions. Instead, Client authorizes settlement of transactions to be made directly by American Express, Discover, or other closed loop Card Organization(s).
5. Offerings and Right to Use To the extent SwervePay makes available to Client and Client elects to use any of the following, SwervePay will permit Client to use (a) communication tools, such as texting, e-mail, chatbots, or other electronic means for Client to communicate with Payers (“Communication Tools”); (b) web-based point of sale system (“Point of Sale Tool”); and (c) payment portals made available over the internet for the purposes of Client to collect payments from Payers (“Portals”). “Payer” means any individual or entity making a payment to Client using payment cards, ACH, or other approved electronic payment transactions. “Offerings” means the Payment Processing Services, Communication Tools, Point of Sale Tool, and Portals to the extent Client is using any of the forgoing. Subject to Client paying all necessary Fees and complying with all the other terms of this Agreement, SwervePay grants Client a non-exclusive and non-transferable subscription right for Client to use the Offerings for the Term.
6. Fees and Taxes. Client shall pay SwervePay the fees for the Offerings as set forth in the Enrollment Form (“Fees”). SwervePay may modify, increase, add different, or otherwise change the Fees by providing Client 30 days’ advance written notice provided in accordance with Section 29. Client’s continued use of the Offerings will indicate Client’s consent to the change in Fees. If Client does not agree to the change in Fees, Client will need to notify SwervePay in writing of the objection and cease all use of the Offerings. Client acknowledges that the Fees do not include any taxes. Client shall collect, report, and remit any taxes required to be collected, paid, or withheld in connection with the Offerings and Terminals. Taxes are Client’s sole responsibility. SwervePay is not responsible for determining whether or not taxes apply or for calculating, collecting, reporting, or remitting any taxes on Client’s behalf. If a tax authority seeks collection from SwervePay of any taxes in connection with this Agreement, then Client shall reimburse SwervePay upon receipt of notice from SwervePay that SwervePay has paid such tax. SwervePay and its process may make available any reports required by law regarding Client to the Internal Revenue Service or any other Federal or state taxing authority.
7. Terminals. SwervePay may permit Client to purchase point of sale payment card processing terminals (“Terminals”). Upon Client delivering payment for the purchase of the Terminals, Client shall own the Terminals. Client acknowledges that the Terminals are manufactured by third parties and are only provided for Client’s convenience. SwervePay provides all Terminals on “AS IS” basis and without any warranty of any kind. Client assumes all responsibility and liability for its use and the security of the Terminals. SwervePay disclaims all liability related to any defects or vulnerability in the Terminals, any third party hacking or otherwise gaining unauthorized access to the Terminals, or any use of the Terminals by Client.
8. Communication Tools. To the extent Client utilizes the Communication Tools, Client shall obtain all necessary consents from the Payers to use the Communication Tools to communicate with the Payer. Client shall comply with any applicable legal obligation, carrier requirements, or industry standards related to communicating with Payers using the Communication Tools. Client shall make public terms and conditions related to Client’s use of the Communication Tools to communicate with the Payer and have each Payer agree to those terms and conditions. To the extent Client uses any Communication Tool that requires the use of a telephone carrier or wireless services provider, Client acknowledges that the applicable messages and associated data will be transmitted through such carriers and providers. Client authorizes SwervePay to disclose all requested information to the carriers and providers to allow Client’s use of the applicable Communication Tools. Client also acknowledges that some of the Communication Tools may require the uploading and transmitting of data and information over the Internet.
9. Implementation. The parties shall cooperate with one another to set up and enable Client’s use of the Offerings. Client acknowledges that the implementation of the Offerings will not begin until SwervePay assigns resources to begin the project. Client shall provide SwervePay with all access to any data, systems and information reasonably required to implement the Offerings. SwervePay will provide all implementation services on a remote basis between the hours of 8 am and 5 pm based on the location of the resources performing the implementation services. Client shall provide at least one qualified Client representative to receive training on the Offerings.
10. Support and Maintenance. After making the Offerings available for Client’s use in a production environment (“Go Live Date”), the parties will cooperate with one another in the administration of the Offerings. Client may contact SwervePay through SwervePay’s designated support communication channels to obtain general support by logging a support ticket. SwervePay will seek to make any Intrusive Changes only during its standard or scheduled maintenance windows. As used in this Section, “Intrusive Changes” means maintenance that will render the Offerings unavailable and “Non-Intrusive Changes” means maintenance that is not intended to make any of the Offerings unavailable. Client acknowledges that SwervePay performs Non-Intrusive Changes as needed.
11. SaaS Offerings. For Offerings either hosted or provided as a software as a service (“SaaS Offerings”), SwervePay may utilize one or more third-party hosting providers to provide the SaaS Offerings and may change hosting providers by providing Client 30 days advance written notice. SwervePay uses reasonable efforts to make any of the SaaS Offerings available. Client acknowledges that SwervePay may make any of the SaaS Offerings unavailable during Scheduled Downtime and for Emergency Maintenance. “Scheduled Downtime” means time required to perform backup, maintenance and restore any of the SaaS Offerings that occurs during SwervePay’s standard maintenance window or during any additional downtime that is scheduled in advance by SwervePay. "Emergency Maintenance" means any corrective action intended to address hardware or software failures, viruses, malware, worms, other disabling code, or other conditions likely to cause degradation, security risks, or interruption, as designated by SwervePay in its reasonable discretion, with or without notice to Client. In using the SaaS Offerings, Client shall not: (a) forge authentication credentials, use the authentication credentials of another user or disclose Client’s authentication credentials to any third party; (b) damage, bypass, break, or otherwise circumvent any of SwervePay’s security mechanisms; (c) use the SaaS Offerings: (i) to attempt to breach, circumvent or hack a third party, (ii) to transmit viruses, malicious, harmful, or deleterious programs or code, (iii) to launch or facilitate a denial of service attack; or (iv) in a manner that otherwise poses a security threat; (d) probe, scan, or test the vulnerability of the SaaS Offerings or monitor data or traffic of the SaaS Offerings without permission from SwervePay; (e) reverse-engineer the SaaS Offerings in order to find limitation, vulnerability or to evade, disable, or render inaccurate accounting billing, capacity limitations, or other functions of the SaaS Offerings; (f) use the SaaS Offerings to encourage, facilitate, engage, or in connection with abuse, harassment, discrimination, fraudulent activities, deceptive practices or other unlawful activities, or harmful or malicious acts; or (g) use the SaaS Offerings in a manner that would violate the Truth in Caller ID Act, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, the Do-Not Call Implementation Act, or any other local, state, federal, or foreign law or regulation. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation, and may terminate this agreement if Client does not cure.
12. Connections. To enable Client’s use of the Offerings, Client shall establish and maintain any necessary connections that meet SwervePay’s standards between Client’s network or systems and the Offerings. Client shall pay all costs related to setting up these connections. Client is responsible for making sure all such equipment functions appropriately and Client shall replace that equipment as needed.
13. Accuracy of Client Data. Client acknowledges that Client is responsible for the accuracy and integrity of the information Client provides through Client’s use of the Offerings and the setting up maintaining of any accounts to use the Offerings. Client is also responsible for adopting procedures to identify and correct errors and omissions in such provided information. Client shall maintain the security of any account user names, passwords and any other login information Client uses to access and use the Offerings and shall promptly notify SwervePay if Client becomes aware of any unauthorized disclosure or use of Client’s account information. Client acknowledges that SwervePay does not review any of Client’s data or information for accuracy, validity, or compliance and SwervePay is not responsible for errors caused by insufficient or inaccurate data. Client shall monitor the contents of any messages being sent through the Offerings.
14. Client’s Compliance with Laws and Standards. Client shall comply with and use the Offerings in a manner that complies with the Operating Rules (as defined in Exhibit 1), the Health Insurance Portability and Accountability Act, the Hi-Tech Act, the Fair Debt Collection Practices Act, the Electronic Funds Transfer Act, the Telephone Consumer Protection Act, the Payment Card Industry Data Security Standards, and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the collection of debts, processing payments, and Client’s business (“Laws and Standards”). Client acknowledges that it has not retained SwervePay to provide guidance, advice, or counsel with respect to compliance with the Laws and Standards. Client takes full responsibility and assumes all risk and liability for Client’s own compliance with the Laws and Standards and Client’s use of the Offerings in compliance with the Laws and Standards. Client will reimburse SwervePay for any fines, legal expenses, reasonable attorneys’ fees, or out of out of pocket costs incurred by SwervePay because of Client’s failure to comply with these Laws and Standards. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation.
15. Proprietary Rights. SwervePay retains sole and exclusive ownership of all right, title and interest in the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides to Client under this Agreement. To the extent necessary to verify this ownership, Client agrees to and hereby does assign to SwervePay all copyrights, patent rights, title, and all other proprietary rights to the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides under this Agreement. Client shall not alter, modify, adapt, translate, copy, reverse engineer, decompile, disassemble, or create any derivative works of the Offerings. Client shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that are contained in the Offerings or any related information, documentation, or deliverables. Client shall not attempt to circumvent or circumvent any user limits, license keys, or other license, timing or use restriction built into the Offerings.
16. Confidentiality. The party receiving information (“Recipient”) from the other party (“Discloser”) shall treat Discloser’s information as confidential (“Confidential Information”) unless: (1) Recipient is able to demonstrate that the Confidential Information was known to Recipient prior to the disclosure; (2) Recipient is able to demonstrate the Confidential Information is part of the public domain; or (3) Recipient’s personnel, without knowledge of the Confidential Information, independently develops the information. Except as permitted under this Agreement, Recipient shall only use the Confidential Information to perform its obligations and shall not disclose or permit any third party to disclose any Confidential Information to any other person. Recipient shall not and shall not permit any third party to reproduce the Confidential Information or any portions thereof unless such reproductions are permitted by or are necessary for Recipient to perform its obligations under this Agreement. Recipient shall ensure that all reproductions of Discloser’s Confidential Information contain (if any) Discloser's proprietary or confidentiality notices in the same manner in which such notices were set forth in or on the original. Recipient will protect the Discloser's Confidential Information in the same manner that it employs to protect its own Confidential Information and in no event, will Recipient use less than reasonable efforts to protect the Discloser's Confidential Information from disclosure. Recipient may disclose the Confidential Information to its employees, subcontractors, advisors, or affiliates, who have been informed of the confidential nature of the Confidential Information and who have obligations of confidentiality that protect such types of information from disclosure to third parties. If Recipient is required by law or court order to disclose Discloser’s Confidential Information, Recipient may disclose the Confidential Information; subject to, where legally permitted, Recipient will: (1) provide Discloser prompt and advance written notice of the requirement; and (2) after providing the notice, reasonably assist Discloser, at Discloser's election and expense, in seeking to obtain an order protecting the information from further disclosure.
17. Use of Data. Client acknowledges that (a) SwervePay provides Offerings under this Agreement that will utilize the data provided by Client to allow Client to collect payment and generate communications with individuals, and to achieve other desired outcomes; and (b) SwervePay collects statistical, system, user experience and other data related to Client’s use of the Offerings for the purposes of: (1) monitoring and improving the functionality of the Offerings; (2) offering trending or statistical De-Identified Data to SwervePay’s user base; and (3) aggregating and using De-Identified Data for SwervePay’s own business purposes as described in any applicable privacy policy for the Offerings. “De-Identified Data” means data that does not identify Client and does not identify any individual or identify any entity. SwervePay shall only use De-Identified Data in a manner that complies with applicable laws. Client authorizes SwervePay to transmit and share data submitted by Client to SwervePay’s processor, applicable financial institutions, Card Organization(s), and/or any other person or entity to facilitate the provision of the Payment Processing Services.
18. SwervePay Warranties. SwervePay warrants that SwervePay uses reasonably qualified personnel to provide the services. Client's sole and exclusive remedy for a breach of this warranty is SwervePay re-performing of the applicable services at no additional cost to Client. SwervePay warrants that SwervePay complies with the applicable Operating Rules and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the processing of payments, and SwervePay’s business. Client acknowledges that Client is not relying upon any other representations, warranties, or promises that are not contained in this Agreement. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, SWERVEPAY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE OFFERINGS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE REGARDING MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. SWERVEPAY DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL MEET CLIENT'S REQUIREMENTS OR THAT THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
19. Sunsetting. SwervePay may cease providing any of the Offerings by providing Client with at least 12 months advance written notice that the applicable Offering is being sunset. After that 12 month period, SwervePay will have no further obligations related to the applicable Offering and will cease charging Client for any applicable Fees associated with the sunsetted offering.
20. Termination for Breach. If either party breaches this Agreement in any manner, the other party may terminate this Agreement by first providing the breaching party with written notice describing the breach in detail and allowing the breaching party 30 days after receipt of the notice to cure the breach. If the breaching party fails to cure, this Agreement will automatically terminate at the end of the 30-day cure period.
21. Effect of Termination. Within 90 days of termination or expiration of this Agreement, Recipient will destroy and purge from its computer systems the Discloser’s Confidential Information (including all copies, excerpts and summaries thereof), except to the extent such Confidential Information is stored pursuant to the Recipient’s standard back-up procedures or retained to meet Recipient’s legal or regulatory requirements or Recipient’s internal audit, document retention or internal compliance requirements. If the Discloser’s Confidential Information is retained as permitted in this Section, the Recipient will continue to abide by the confidentiality obligation of this Agreement until the Recipient ceases retaining such Confidential Information. Recipient shall destroy and purge such Confidential Information within the normal timeframe for deleting and purging such data. Client acknowledges that SwervePay retains transaction records as required by applicable law and the Operating Rules and that information is not considered Client’s Confidential Information. Upon request by the Discloser, the Recipient will certify in writing that the Recipient has complied with its obligations under this Section. Sections 6, Sections 14-16, the disclaimer in Section 18, Sections 21-24, Sections 29-32 of these Terms and Conditions and Section 17 of the attached Sub-Merchant Processing Payment Terms survive termination of this Agreement.
22. Indemnification. Each party shall indemnify and defend the other party, its affiliates, and its officers, directors, and employees, from and against any third party claims, losses, damages, liabilities, lawsuits, and expenses (including reasonable attorneys’ fees, court costs and other defense expenses) arising out of or resulting from: (a) the indemnifying party’s failure to comply with the Operating Rules; (b) the indemnifying party’s breach of any warranty or representation under this Agreement; and (c) a data security breach or unauthorized access or disclosure of Client data or Payer information arising out of any act or omission of the indemnifying party, its affiliates, or contractors. The indemnified party shall notify the indemnifying party of any claim that falls under this Section promptly after the indemnifying party learns of such claim; provided, however, that the indemnifying party will only be relieved of its obligations under this Section due to the failure of the indemnified party to provide such prompt notice to the extent that the failure materially prejudices the indemnifying party in defending such claim. The indemnifying party’s obligations under this Section are conditioned upon the indemnified party: (i) providing all reasonably requested information and cooperation to the indemnifying party; and (ii) giving the indemnifying party sole control of the defense or settlement of such claim, at the indemnifying party’s sole cost and expense; provided, however, that the indemnifying party may not settle any such claim in a manner that requires the indemnified party to admit fault or incur any direct expense without the consent of the indemnified party, which will not be unreasonably withheld or delayed. If the indemnifying party fails to timely undertake the defense of a claim under this Section, each of the indemnified parties may undertake the defense (including settlement) of such claim and the indemnifying party will reimburse the indemnified parties for all such costs.
23. Limitation of Liability. For any causes of action, claims, or assertions arising under or related to this Agreement or to the offerings (each a “Claim”), Swervepay’s liability in the aggregate to Client will not exceed THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO SWERVEPAY PURSUANT TO THIS AGREEMENT during the 6 months prior to the date the Claim is made, regardless of the form of action (whether based on contract, tort, negligence, strict liability, or otherwise). IN NO EVENT WILL SWERVEPAY BE LIABLE TO CLIENT FOR ANY LOST PROFITS OR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES OF ANY TYPE OR NATURE, EVEN IF SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT FEES OR CHARGES OF THE CARD ORGANIZATIONS OR OTHER THIRD PARTIES PASSED THROUGH TO CLIENT PURSUANT TO THIS AGREEMENT WILL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO SWERVEPAY WHEN DETERMINING SWERVEPAY’S LIABILITY UNDER THIS SECTION. CLIENT EXPRESSLY AGREES TO PAY ANY FEES OR ASSESSMENTS LEVIED BY ANY CARD ORGANIZATION AS A RESULT OF ANY ACTIVITY ASSOCIATED WITH CLIENT’S MERCHANT ACCOUNT, AND THAT SWERVEPAY IS NOT LIABLE FOR ANY SUCH FEES OR ASSESSMENTS UNDER ANY CIRCUMSTANCES. FURTHER, UNDER NO CIRCUMSTANCES WILL SWERVEPAY HAVE ANY LIABILITY TO CLIENT FOR PLACING CLIENT ON THE MATCH LIST BASED ON A GOOD FAITH, REASONABLE BELIEF BY SWERVEPAY THAT SUCH PLACEMENT WAS PROPER.
24. Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the state of Indiana in the United States without regard to conflict of law principles. All disputes arising out of or related to this Agreement will be exclusively brought and exclusively maintained in the State courts located in Delaware County, Indiana, or the United States District Court for the Southern District of Indiana, Indianapolis Division (or upon appeal, to the appellate courts of corresponding jurisdiction to such State or Federal court). Each party consents to and waives any objection to the exclusive personal jurisdiction and venue of such State and Federal courts.
25. Government Sales. This section applies to all acquisitions of the Offerings and documentation (collectively or individually for the purposes of this section, the “Government Acquired Products”) by or for the government of the United States of America or other government entity (the “Government”), or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the Government. By accepting delivery of the Government Acquired Products, Client hereby acknowledges that (a) the Offerings and documentation have been developed exclusively at private expenses, (b) the software based Offerings are commercial software and the documentation is commercial software documentation within the meaning of the acquisition regulation(s) applicable to this procurement, (c) the terms and conditions of this Agreement govern the all use and disclosure of the Government Acquired Products, and will supersede any conflicting contractual terms or conditions, and (d) this Agreement meets the Client’s needs or is consistent in all respect with United States law.
26. Force Majeure. Except for Client's payment obligations hereunder, a party will not be responsible for any failure to perform due to acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, strikes, or other causes beyond its reasonable control (each a "Force Majeure Event") provided that such party gives prompt written notice to the other party of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event. If the Force Majeure Event causes a delay of more than three months, either party may terminate an Order or this Agreement without penalty by providing written notice to the other party.
27. No Transfer or Assignment. Without obtaining SwervePay’s advance prior written consent, Client shall not assign, transfer, sublicense, subcontract, or otherwise delegate, in whole or in part any of Client’s rights, duties or obligations under this Agreement, including the right to receive settlement of funds pursuant to this Agreement. Any assignment, transfer, or delegation made by Client without complying with this Section is null and void and will permit SwervePay to terminate this Agreement immediately upon providing written notice to Client. Any, indirect or direct, change of ownership of Client is considered an assignment.
28. Export. Client shall not export or re-export the Offering without the prior written authorization of SwervePay and, as may be required under United States laws and regulations, the prior written authorization of the United States Department of Commerce or any other relevant Federal agency. SwervePay does not represent that the Offerings are appropriate or available for use in other countries. If Client obtains SwervePay’s authorization to export the Offerings, Client is solely responsible for compliance with all applicable laws, including export and import regulations of other countries.
29. Notices to Client. Client consents to do business electronically with SwervePay and receive electronic communications from SwervePay under this Agreement. SwervePay may provide Client notices, disclosures, or other information about the Offerings and Fees charged under this Agreement. Client agrees that SwervePay may provide this information and these notices by making them available on SwervePay’s website, through any mobile application in use by Client, or by sending Client an e-mail to Client’s email of record with SwervePay when Client signed up for any of the Offerings. Notices provided on the website or through a mobile application will be deemed given and received within 24 hours of posting and notices sent to Client’s email will be deemed given and received on the date of transmission. Alternatively, SwervePay may provide written notice by delivering the notice to Client at the most recent address that SwervePay has on file for such Client. Notices provided to Client’s most recent address will be deemed given and received at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if by a reputable overnight delivery service with tracking capabilities. Client may update the address of its principal office by providing notice to SwervePay.
30. Notices to SwervePay. All written notices to SwervePay under this Agreement need to be in writing and delivered to SwervePay at its principal office (currently, 1150 W. Kilgore Ave; Muncie, IN 47305) and to the attention of the “Legal Department”. The notice is deemed received by a party at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S. certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if sent by a reputable overnight delivery service with tracking capabilities. SwervePay may update the address of its principal office by providing notice to Client.
31. Amendments. SwervePay may updates these Terms and Conditions or the attached Sub-Merchant Payment Processing Terms at any time by providing Client with at least 90 days advance written notice. By continuing to use the Offerings after this 90 day period, Client will be deemed to have accepted the updated Terms and Conditions or updated Sub-Merchant Payment Processing Terms (“Updated Terms”). If Client does not agree to the Updated Terms, Client will prior to the expiration of the 90 day period, cease all use of the Offerings and notify SwervePay that Client is terminating this Agreement. If Client does not provide such notice within the 90 day period, Client’s right to terminate under this Section will expire. SwervePay may withdraw the Updated Terms within 30 days of when Client notifies SwervePay of Client’s desire to terminate this Agreement and have the Agreement continue under the unaltered Terms and Conditions or unaltered Sub-Merchant Payment Processing Terms. If SwervePay does not withdraw the Updated Terms, then this Agreement will terminate in accordance with Client’s notice.
32. General. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals, prior agreements, and other communications (oral or written) between the parties relating to the subject matter of this Agreement. A waiver by either party of or a party’s delay exercising its rights under this Agreement does not constitute a waiver of any other provision, breach, or default. If any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions will remain in effect. This Agreement inures to the benefit of and binds the parties, their permitted successors, heirs, and assigns. In all matters relating to this Agreement, Client and SwervePay will act as independent contractors. Neither party shall represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as an agent, employee, franchisee, or in any other capacity. Except as it relates to each of the party’s obligations under Section 22, the parties hereby agree that there are no third party beneficiaries under this Agreement.
Exhibit 1
Sub-Merchant Payment Processing Terms
1. Payment Facilitator Relationship. SwervePay is a Payment Facilitator. “Payment Facilitator” is defined by the Operating Rules and generally refers to a service provider that is registered with a processer to facilitate the processing of payment transactions on behalf of sub-merchants. As a Payment Facilitator, Client acknowledges that SwervePay is not a bank, that there is no fiduciary relationship between Client and SwervePay, and that SwervePay enters into agreements with other processors and banks to provide the Payment Processing Services.
2. Operating Rules. In using the Payment Processing Services, Client shall comply at all times with the Operating Rules. “Operating Rules” means (1) the by-laws, operating regulations and all other rules policies and procedures of MasterCard International, Inc. (“MasterCard”), VISA USA, Inc. (“Visa”), Discover, American Express, and other payment networks (“Card Organizations”); (2) the Payment Card Industry Data Security Standard; (3) the VISA Cardholder Information Security Program and Payment Application Best Practices; (4) the MasterCard Site Data Protection Program and POS Terminal Security Program; (5) American Express’s Data Security Operating Policy; (6) Discover’s Information Security & Compliance Program; and (7) any other program or requirement that may be published or mandated by MasterCard, Visa, Discover, American Express, or other payment networks/card associations.
3. Sub-Merchant Account. To use the Payment Processing Services Client shall work with SwervePay to set up and maintain one or more sub-merchant accounts by: (1) providing all required documentation and information, and (2) cooperating with SwervePay’s due diligence, Office of Foreign Asset Control related inquiries, and underwriting efforts. Client shall provide and maintain accurate and complete information with SwervePay to enable SwervePay to provide the sub-merchant accounts and the Payment Processing Services. Client authorizes SwervePay to share any such information with SwervePay’s processors, the sponsor bank, Client’s financial institutions, the Card Organizations, or to any other person or entity whose involvement is necessary to provide the Payment Processing Services. Client acknowledges that SwervePay will perform ongoing risk assessments related to Client’s sub-merchant accounts in accordance with the Operating Rules. Client authorizes SwervePay to request reports about Client from consumer reporting agencies, and Client shall cooperate to provide all documents requested by SwervePay to perform ongoing monitoring and analysis of Client’s financial condition. If any information is identified in these activities by SwervePay that either prevents SwervePay from being able to establish a sub-merchant account for Client or requires that SwervePay terminate Client’s existing sub-merchant account, SwervePay may immediately cease providing the Payment Processing Services, the other Offerings, and terminate this Agreement by providing notice to Client.
4. Client Warranties and Obligations. Client warrants that the individual entering into this Agreement on behalf of Client is at least 18 years of age and is authorized to enter into this Agreement. Client further warrants (a) it is either a legal resident of the United States, a United States citizen, or a legal business entity authorized to conduct business in one of the states in the United States; (b) the name identified by Client when Client completed the Enrollment Form is Client’s name under which Client operates and will obtain payment transactions; and (c) Client is in good standing, has all necessary licenses and permits to operate its business, and has all necessary right, power, and ability to comply with the terms of this Agreement. Client shall only use the Payment Processing Services within the United State. Client shall provide SwervePay with timely notification of any: (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; (iii) an adverse governmental or regulatory actions taken against Client; (iv) any change in the nature of Client’s products or services that makes the products or services materially different to what was previously represented to SwervePay; and (v) any other adverse changes that would interfere with Client’s ability to fulfill Client’s obligations under this Agreement. Client shall fulfill all obligations to Client’s customers related to any payment transaction and will be solely responsible for and resolve any dispute or complaint with a Payer.
5. Restrictions. Client shall:
b. not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (1) adult content; (2) airline or cruise line; (3) credit counseling or identity protection services; (4) sales to or from operations outside the United States of America and Canada; (5) distressed property sales and marketing; (6) gambling establishments or gambling; (7) card not present tobacco or pharmaceutical sales; (8) goods or services sold through rebate or upsell programs; (9) timeshare resales and related marketing of goods, services or properties; (10) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; or (11) buyer club activities or buyer club memberships.
c. not submit any transaction that: (1) adds any surcharge or other amount to the transaction as a condition of paying with a payment card, except to the extent authorized by the Operating Rules and applicable law; (2) adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately; (3) represents the refinancing or transfer of an existing Payer obligation that is deemed to be uncollectible or arises from the dishonor of a Payer’s personal check or from the acceptance of a Card at a terminal that dispenses scrip; (4) is not a valid transaction between the Client and a bona fide Payer; (5) Client knows or should have known to be fraudulent or not authorized by the Payer; (6) does not result from an act between Client and the Payer; or (7) required a valid authorization and it was not obtained.
d. not submit any refund transaction: (1) that does not correlate to an original sales transaction from the Payer; (2) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Payer for postage paid by the Payer to return merchandise in accordance with a policy applied consistently by Payer to all Client customers, (3) for returned products that were acquired in a cash purchase from Client; (4) that would cause an overdraft; or (5) more than three business days following either: (A) a regulatory requirement granting a Payer’s right to a refund; or (B) a non-disputed Payer request;
e. not transfer or attempt to transfer Client’s financial liability by asking or requiring Payer to waive their dispute rights; and
f. not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
6. Direct Processing Agreement. In accordance with the Operating Rules, SwervePay may need to have Client execute a direct agreement with SwervePay’s payment processor, in the form provided by SwervePay’s processor. Client will execute that direct agreement upon SwervePay’s request. If a direct agreement is deemed required and Client fails to enter into it upon request or the payment processor terminates the direct agreement at any time, SwervePay may cease providing the Offerings and terminate this Agreement by providing written notice to Client.
7. Deposit Account. As part of the Enrollment Form and for any subsequent account Client opens related to the Payment Processing Services, Client shall complete an Authorization for Direct Deposits form and for the duration of this Agreement, Client shall maintain one or more commercial checking account(s) to facilitate payment of payment transactions and automated clearing house network transfers between SwervePay and Client (“Deposit Account”). Client will notify SwervePay in writing any time there is a change in the Deposit Account information that will materially affect the ability of SwervePay to facilitate ACH transactions to Client’s Deposit Account. Client acknowledges that SwervePay is not responsible for any failure of Client to receive an ACH transfer that is caused by Client failing to maintain the Deposit Account or accurate Deposit Account information with SwervePay. Client shall maintain sufficient funds in the Deposit Account to accommodate the payment of any Fees, Chargeback liabilities, charges associated with the purchase of Terminals, or payment of any assessments from the Card Organizations.
8. Distribution of Funds to Client. Within one to two business days of a deposit of the funds from a payment by a Payer of an obligation due to Client into the Settlement Bank Account (“Funds”), SwervePay will have the Member Bank transmit via an ACH transfer to Client’s Deposit Account the Funds owed to Client provided that SwervePay receives a valid authorization code from the applicable Card Organization. Client further acknowledges that availability of the Funds for use by Client is subject to the control of the banking institutions and SwervePay is not responsible for any delay caused by the banking institutions. “Settlement Bank Account” means a bank or escrow account maintained by the Member Bank for receipt of payments made through the Payment Processing Services. “Member Bank” means a financial institution that provides credit card processing services for SwervePay under this Agreement. Each transaction will be considered complete when SwervePay has received the Funds and when such Funds have been accepted by Client’s designated bank or financial institution.
9. Chargebacks. A “Chargeback” occurs if a charge or transaction is reversed or returned for any reason to Client’s sub-merchant account by a Payer or card issuer. Client is solely responsible for the payment of all Chargebacks, and under no circumstances shall SwervePay be responsible for Chargebacks. Further, if a Chargeback occurs for any reason, Client will pay to SwervePay any administrative fees set forth in the Enrollment Form that reflects SwervePay’s involvement in the Chargeback resolution process. For any Chargeback, Client will also pay all credit card, debit card, bank, and ACH transaction fees, fines or penalties and refund all Funds transferred to Client’s Deposit Account corresponding to the Chargeback amount. Client will be notified of the Chargeback and of the amount due. If Client has a reason to dispute the Chargeback, Client has to dispute the Chargeback based on the date provided in the Chargeback notice. SwervePay has no independent obligation to investigate, dispute, or attempt to obtain reversal or adjustment of any Chargeback. SwervePay may deduct, and Client authorizes SwervePay to deduct, the amount of any Chargeback and any associated fees, fines, or penalties assessed by each processor and bank from: (a) Client’s sub-merchant account, (b) Client’s Reserve Account (if applicable), (c) Client’s Deposit Account; or (d) any amounts due to Client. If Client is incurring an excessive number of Chargebacks, SwervePay may increase the Fees, may hold back settlement of funds, establish or increase the fund requirements for a Reserve Account, or terminate this Agreement by providing written notice to Client. Client is responsible for monitoring Client’s monthly Chargeback percentage and developing Chargeback reduction programs as required by the Card Organizations.
10. Correcting Payment Errors. Client authorizes SwervePay, SwervePay’s processor, or Member Bank to debit the Deposit Account or Reserve Account for any misdirected deposits, duplicate deposit, or inadvertent overpayments into Client’s Deposit Account. This debit authorization survives the termination of this Agreement until SwervePay validates that there are no Incorrect Deposits that need to be addressed.
11. Statements and Client Review. SwervePay shall make available to Client statements and transaction reports reflecting Client’s sub-merchant account activity (“Statements”). Client acknowledges that Client has 90 days from when the Statements are made available to Client to review the Statements for accuracy. Subject to Client providing SwervePay with written notice of any dispute or discrepancy related to the Statement within that 90 day period, Client may reasonably dispute a Statement. Upon receipt of the dispute by SwervePay, SwervePay will review the disputed Statement and the parties will work together in good faith to resolve the dispute. If it is determined that SwervePay owes any additional amounts to Client, SwervePay will disperse that amount in accordance with Section 8 of this Exhibit. Client agrees that SwervePay will not be liable to Client or have any obligation to resolve any discrepancy in any Statement that Client does not dispute in accordance with this Section. Client’s failure to follow the dispute resolution procedures in this Section shall result in all such disputes being waived by Client.
12. Reserve Account. Upon notice to Client, SwervePay may elect or be required by SwervePay’s payment processor to establish a non-segregated account at a financial institution to ensure payment of all of Client’s payment or Fee obligations under this Agreement (“Reserve Account”). Client hereby permits SwervePay to fund the Reserve Account through (a) debiting the Deposit Account; (b) withholding Funds and depositing those funds in the Reserve Account; or (c) invoice Client and Client will pay such invoice within 30 days of the date of the invoice. SwervePay may continue to hold the Reserve Account with any amounts in it for up to one year after the termination of this Agreement. Client acknowledges that Client will not receive any interest on the amounts in the Reserve Account and has no right to access the amounts in the Reserve Account until SwervePay closes the Reserve Account and provides all amounts (if any) in the Reserve Account to Client. SwervePay will close the Reserve Account and release any amounts to Client once Client satisfies all payment obligations under this Agreement. The funds in the Reserve Account will be deemed to be the exclusive property of SwervePay, and not the merchant, while SwervePay holds such funds. Without in any way limiting the foregoing, and merely as an additional form of security, Client hereby further grants SwervePay a security interest in the Reserve Funds to the full extent necessary to satisfy any of Client’s obligations to SwervePay. SwervePay may enforce its security interest with or without notice or demand. The security interest(s) granted under this section will continue after termination of this Agreement until Client satisfies all its obligations to SwervePay. Client further agrees to execute and deliver to SwervePay such instruments and documents as SwervePay may reasonably request to confirm and perfect the security interest(s) granted by this Agreement.
13. Investigations and Sharing of Information. If SwervePay reasonably believes that a transaction is in violation of this Agreement, is illegal or otherwise may cause harm to SwervePay, Client, a Payer, or SwervePay’s processor, SwervePay may choose not to authorize, process, or settle the transaction. If SwervePay discovers any such transaction or any other unusual or unexpected transaction activity on Client’s sub-merchant account, Client authorizes SwervePay to hold Funds while SwervePay conducts an investigation into the transaction activity. As part of such investigation and upon SwervePay’s request, Client will provide all documentation requested to support or otherwise validate any transaction being investigated. As part of any SwervePay investigation or if required by law, court order, or a request from law enforcement or a governmental entity, SwervePay may withhold and defer the distribution to Client of any Funds until such investigation concludes, or such legal or governmental requirement no longer applies. If SwervePay reasonably believes that the Payment Processing Services have been used for an illegal, unauthorized or criminal purpose, Client expressly authorizes SwervePay to share information about Client, Client’s sub-merchant account, or Client’s transactions with Client’s banks, Client’s financial institutions, SwervePay’s processor, the Card Organizations, SwervePay’s advisors, and with law enforcement and governmental entities. If SwervePay reasonably believes in good faith that that Client needs to be reported under the Operating Rules, Client acknowledges that SwervePay may report Client to the MATCH list (Member Alert to Control High-Risk), the Card Organizations, any applicable governmental agency or law enforcement agency.
14. Honoring Cards. Client has the responsibility to validate the identity of the Payer and the Payer’s payment card information. If Client determines a payment card is expired or that the account number is listed on a current Electronic Warning Bulletin file or the account number does not match the card’s magnetic strip or chip, Client will not honor the payment card or the transaction. Client shall ensure that the Payer understands Client is responsible for the transaction and all the details related to the charges that will be processed on Payer’s payment card. Client shall maintain return and refund policies that comply with the Operating Rules and disclose to Payers any refund or return policies Client has. Unless a Payer expressly declines a written receipt, Client shall make a receipt available to a Payer for any transaction, whether in writing or via electronic means. Notwithstanding Client’s obligations herein SwervePay shall have the right, in its sole discretion, to decline to process any transaction that it believes is improper, fraudulent, unlawful, or otherwise in violation of any Laws and Regulations.
15. Client’s Security Obligations. Client shall keep all payment card, account information and personal information of a Payer (“Payer Information”) confidential and not disclose such information to a third party except as permitted under the Laws and Standards. Client shall keep Payer Information in a secure manner to prevent disclosure to unauthorized parties and in a manner that complies with all the Laws and Standards. Upon SwervePay’s request, Client will provide proof to SwervePay of Client’s compliance with the Laws and Standards. Client will only use the Payer Information for obtaining payment and not use or disclose the Payer Information for marketing purposes or any other unauthorized use without express consent of the Payer. Client shall immediately notify SwervePay if: (a) Client has reason to believe that Client’s sub-merchant account is no longer secure or being used for unauthorized purposes; or (b) Client discovers or has reason to suspect that a data breach has occurred. In any such event, Client will fully cooperate, at its expense, with all remediation efforts, forensic examination, and mitigation procedures required under the Laws and Standards or reasonably requested by SwervePay, the Card Organizations, SwervePay’s processor, and any of the parties’ banks or financial institutions. Client acknowledges that any failure to comply with the Laws and Standards or the occurrence of any data breach suffered by Client may result in Client being assessed penalties or fines by the Card Organization and Client shall pay those penalties and fines.
16. Third Parties. To the extent Client uses any third party to process, store, receive, transmit, or otherwise have access to Payer Information, Client assumes full responsibility and liability for such third party’s compliance with this Agreement and the Laws and Standards. SwervePay is not liable for the acts or omissions of such third parties. Client further agrees to notify SwervePay of the identity of all such third parties if those third parties relate to the Payment Processing Services and to ensure that such third parties are properly registered, if required to be so, with the Card Organizations. SwervePay may require any such third parties to undergo testing, approval, and certification by SwervePay or SwervePay’s bank or processer. SwervePay may, at any time, also terminate such third parties’ access to or ability to integrate with SwervePay. For the sake of clarity, SwervePay’s affiliates or subcontractors are not considered a third party under this Section.
17. Termination and Suspension Rights. In addition to the termination rights set forth in the Terms and Conditions, SwervePay may suspend providing the Payment Processing Services to Client upon providing notice to Client, if Client: (a) has violated these Sub-Merchant Payment Processing Terms or any of the Laws and Standards; (b) poses an unacceptable credit or fraud risk, as determined by SwervePay, SwervePay’s processor, or the Card Organizations; (c) becomes subject to any investigation or enforcement action by law enforcement or a governmental entity; (d) falls outside of SwervePay’s credit policies; (e) provides any false, incomplete, inaccurate, or misleading information or otherwise engages in fraudulent or illegal conduct; or (f) becomes part of the MATCH list or Terminated Client File maintained by MasterCard. If SwervePay suspends providing the Payment Processing Services for any of the foregoing reasons and the circumstances do not change after 30 days, SwervePay may terminate this Agreement by providing written notice to Client. Upon suspension of the Payment Processing Services or termination of this Agreement for any reason, (i) all pending transactions will be cancelled; (ii) Client shall pay all Fees and any other amounts owed to SwervePay that were accrued prior to the termination; and (iii) Client will remain liable for any and all Chargebacks, credits, adjustments, penalties, fines, costs, and all other amounts that become due prior to or after the suspension or termination. As part of the suspension or termination of the Agreement, SwervePay may establish and maintain a Reserve Account in accordance with Section 14 of this Exhibit. If Client is subject to an investigation or enforcement action at the time Client seeks to close a Client sub-merchant account, SwervePay may retain the Funds in the sub-merchant account or a Reserve Account until the investigation or action is completed.
18. Provisions Specific to American Express. If Client is accepting American Express card payments, Client agrees to the following in connection with its acceptance of American Express cards:
a) Any request to accept American Express cards is subject to approval by American Express. If approved, Client authorizes SwervePay to submit American Express card transactions to American Express. Client also agrees to accept settlement from American Express.
b) The American Express Merchant Operating Guide is incorporated into this Agreement by reference and available at the following link: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf. Client’s acceptance of American Express cards must be in accordance with American Express’s Merchant Operating Guide and any other rules promulgated by American Express, as amended from time to time.
c) Client may opt out of receiving commercial marketing materials from American Express without affecting Client’s ability to accept American Express cards or to receive important transactional or relationship messages from American Express.
d) Client agrees that American Express may use information obtained from Client to screen or monitor Client in connection with American Express card marketing and administrative purposes. In addition, American Express may use data obtained from Client to perform American Express’s responsibilities with the American Express OptBlue Program, to promote the American Express network, to perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes, and important transactional or relationship messages.
e) Client agrees that it may be converted from American Express Card acceptance pursuant to this Agreement to a direct American Express Card acceptance relationship with American Express if and when it becomes a High CV Merchant. “High CV Merchant” means a merchant with either (1) greater than $1 million in American Express Card Transaction volume (including volume from all Merchant locations) in a rolling 12 month period; or (2) greater than $100,000 in American Express Card Transaction volume (including all volume from all merchant locations) in any three consecutive months. Client will be notified if such a conversion is required and upon such conversion, Client will be bound by American Express’s then-current Card Acceptance Agreement and Client agrees that American Express will set pricing and other fees payable by Merchant for American Express Card acceptance.
f) Upon termination of this Agreement or of Client’s ability to accept American Express Cards hereunder, Client agrees to remove American Express identifying marks from Client’s website and wherever else they Client displays them.
g) Client agrees to have a refund policy for transactions on American Express cards that is at least as favorable as the refund policy or transactions on other card types.
h) Client acknowledges that it may opt out of accepting American Express cards at any time without affecting its right to accept other payment cards.
i) American Express is a third party beneficiary to this Agreement with respect to the rights in this Agreement, but not the obligations and will be able to enforce the terms of this Agreement against the Client as it relates to Client’s accepting of American Express card payments.
Client: {{{Customer_Legal_Name}}} | |
By: {{{Customer_Signor}}} | |
Its: {{{Customer_Signor_Title}}} | |
Date of Execution: {{{Todays_Date}}} | |
Address: {{{Customer_Street_Address}}} {{{Customer_City}}} {{{Customer_ZipCode}}} {{{Business_State}}} | |
Email: {{{Customer_Signor_Email}}} |
Effective October 6, 2021 to October 6, 2021
DownloadTable of Contents
SwervePay Offerings Terms and Conditions (Last Updated December 1, 2020)
Please read the following carefully because these SwervePay Offerings Terms and Conditions (“Terms and Conditions”) govern your and your business’s use of the Offerings provided by SwervePay, LLC. By enrolling to use and using the Offerings you are accepting these Terms and Conditions on behalf of your business and acknowledge that this is a legal agreement between your business and SwervePay, LLC, a Delaware Limited Liability Company, with offices at 1150 W. Kilgore Ave., Muncie IN 47305 (“SwervePay”).
If you do not agree with these Terms and Conditions and the Sub-Merchant Payment Processing Terms, attached hereto as Exhibit 1, in their entirety, you and your business cannot enroll to use and cannot actually use any of the Offerings. Your use of any of the Offerings will constitute your agreement to these Terms and Conditions even if you do not physically sign this agreement.
1. Client. “Client” means the business that has enrolled to use and will use the Offerings (as defined in Section 5).
2. Enrollment. “Enrollment Form” means the enrollment form completed by Client to use the Offerings and any applicable attachments to the Enrollment Form referenced therein. To use any of the Offerings, Client will need to complete the applicable Enrollment Form and as part of the enrollment process, indicate Client’s agreement to these Terms and Conditions. The Enrollment Form sets forth the fees for the Offerings. If there is any conflict between the Enrollment Form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Terms, these Terms and Conditions will prevail. The enrollment form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Term, form the agreement between the parties (“Agreement”).
3. Effective Date and Term. The date Client accepts these Terms and Conditions by submitting an Enrollment Form is the effective date of the Agreement (“Effective Date”). The Enrollment Form will specify the duration of the initial term of the Agreement from the Effective Date (“Initial Term”). Thereafter, the term of the Agreement will automatically renew for successive one year periods (each a “Renewal Term”), unless a party provides the other party written notice of termination at least 30 days prior to the renewal date. In which case, this Agreement will automatically terminate at the end of the then current Term. “Term” means the Initial Term and any Renewal Term(s).
4. Payment Processing Services. Upon enrollment and approval by SwervePay in accordance with this Agreement, SwervePay shall provide Client with payment processing services that enable Client to accept payments via payment cards, automated clearing house transactions (“ACH”), and other approved electronic payment transactions into Client’s bank account through electronic means (“Payment Processing Services”). SwervePay will provide and Client will use the Payment Processing Services in accordance with the attached Sub-Merchant Payment Processing Terms. However, for card transactions with cards issued by American Express, Discover, or any other closed loop Card Organization, SwervePay shall provide authorization services only, and shall not have any responsibility for the settlement to client of the funds associated with such card transactions. Instead, Client authorizes settlement of transactions to be made directly by American Express, Discover, or other closed loop Card Organization(s).
5. Offerings and Right to Use To the extent SwervePay makes available to Client and Client elects to use any of the following, SwervePay will permit Client to use (a) communication tools, such as texting, e-mail, chatbots, or other electronic means for Client to communicate with Payers (“Communication Tools”); (b) web-based point of sale system (“Point of Sale Tool”); and (c) payment portals made available over the internet for the purposes of Client to collect payments from Payers (“Portals”). “Payer” means any individual or entity making a payment to Client using payment cards, ACH, or other approved electronic payment transactions. “Offerings” means the Payment Processing Services, Communication Tools, Point of Sale Tool, and Portals to the extent Client is using any of the forgoing. Subject to Client paying all necessary Fees and complying with all the other terms of this Agreement, SwervePay grants Client a non-exclusive and non-transferable subscription right for Client to use the Offerings for the Term.
6. Fees and Taxes. Client shall pay SwervePay the fees for the Offerings as set forth in the Enrollment Form (“Fees”). SwervePay may modify, increase, add different, or otherwise change the Fees by providing Client 30 days’ advance written notice provided in accordance with Section 29. Client’s continued use of the Offerings will indicate Client’s consent to the change in Fees. If Client does not agree to the change in Fees, Client will need to notify SwervePay in writing of the objection and cease all use of the Offerings. Client acknowledges that the Fees do not include any taxes. Client shall collect, report, and remit any taxes required to be collected, paid, or withheld in connection with the Offerings and Terminals. Taxes are Client’s sole responsibility. SwervePay is not responsible for determining whether or not taxes apply or for calculating, collecting, reporting, or remitting any taxes on Client’s behalf. If a tax authority seeks collection from SwervePay of any taxes in connection with this Agreement, then Client shall reimburse SwervePay upon receipt of notice from SwervePay that SwervePay has paid such tax. SwervePay and its process may make available any reports required by law regarding Client to the Internal Revenue Service or any other Federal or state taxing authority.
7. Terminals. SwervePay may permit Client to purchase point of sale payment card processing terminals (“Terminals”). Upon Client delivering payment for the purchase of the Terminals, Client shall own the Terminals. Client acknowledges that the Terminals are manufactured by third parties and are only provided for Client’s convenience. SwervePay provides all Terminals on “AS IS” basis and without any warranty of any kind. Client assumes all responsibility and liability for its use and the security of the Terminals. SwervePay disclaims all liability related to any defects or vulnerability in the Terminals, any third party hacking or otherwise gaining unauthorized access to the Terminals, or any use of the Terminals by Client.
8. Communication Tools. To the extent Client utilizes the Communication Tools, Client shall obtain all necessary consents from the Payers to use the Communication Tools to communicate with the Payer. Client shall comply with any applicable legal obligation, carrier requirements, or industry standards related to communicating with Payers using the Communication Tools. Client shall make public terms and conditions related to Client’s use of the Communication Tools to communicate with the Payer and have each Payer agree to those terms and conditions. To the extent Client uses any Communication Tool that requires the use of a telephone carrier or wireless services provider, Client acknowledges that the applicable messages and associated data will be transmitted through such carriers and providers. Client authorizes SwervePay to disclose all requested information to the carriers and providers to allow Client’s use of the applicable Communication Tools. Client also acknowledges that some of the Communication Tools may require the uploading and transmitting of data and information over the Internet.
9. Implementation. The parties shall cooperate with one another to set up and enable Client’s use of the Offerings. Client acknowledges that the implementation of the Offerings will not begin until SwervePay assigns resources to begin the project. Client shall provide SwervePay with all access to any data, systems and information reasonably required to implement the Offerings. SwervePay will provide all implementation services on a remote basis between the hours of 8 am and 5 pm based on the location of the resources performing the implementation services. Client shall provide at least one qualified Client representative to receive training on the Offerings.
10. Support and Maintenance. After making the Offerings available for Client’s use in a production environment (“Go Live Date”), the parties will cooperate with one another in the administration of the Offerings. Client may contact SwervePay through SwervePay’s designated support communication channels to obtain general support by logging a support ticket. SwervePay will seek to make any Intrusive Changes only during its standard or scheduled maintenance windows. As used in this Section, “Intrusive Changes” means maintenance that will render the Offerings unavailable and “Non-Intrusive Changes” means maintenance that is not intended to make any of the Offerings unavailable. Client acknowledges that SwervePay performs Non-Intrusive Changes as needed.
11. SaaS Offerings. For Offerings either hosted or provided as a software as a service (“SaaS Offerings”), SwervePay may utilize one or more third-party hosting providers to provide the SaaS Offerings and may change hosting providers by providing Client 30 days advance written notice. SwervePay uses reasonable efforts to make any of the SaaS Offerings available. Client acknowledges that SwervePay may make any of the SaaS Offerings unavailable during Scheduled Downtime and for Emergency Maintenance. “Scheduled Downtime” means time required to perform backup, maintenance and restore any of the SaaS Offerings that occurs during SwervePay’s standard maintenance window or during any additional downtime that is scheduled in advance by SwervePay. "Emergency Maintenance" means any corrective action intended to address hardware or software failures, viruses, malware, worms, other disabling code, or other conditions likely to cause degradation, security risks, or interruption, as designated by SwervePay in its reasonable discretion, with or without notice to Client. In using the SaaS Offerings, Client shall not: (a) forge authentication credentials, use the authentication credentials of another user or disclose Client’s authentication credentials to any third party; (b) damage, bypass, break, or otherwise circumvent any of SwervePay’s security mechanisms; (c) use the SaaS Offerings: (i) to attempt to breach, circumvent or hack a third party, (ii) to transmit viruses, malicious, harmful, or deleterious programs or code, (iii) to launch or facilitate a denial of service attack; or (iv) in a manner that otherwise poses a security threat; (d) probe, scan, or test the vulnerability of the SaaS Offerings or monitor data or traffic of the SaaS Offerings without permission from SwervePay; (e) reverse-engineer the SaaS Offerings in order to find limitation, vulnerability or to evade, disable, or render inaccurate accounting billing, capacity limitations, or other functions of the SaaS Offerings; (f) use the SaaS Offerings to encourage, facilitate, engage, or in connection with abuse, harassment, discrimination, fraudulent activities, deceptive practices or other unlawful activities, or harmful or malicious acts; or (g) use the SaaS Offerings in a manner that would violate the Truth in Caller ID Act, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, the Do-Not Call Implementation Act, or any other local, state, federal, or foreign law or regulation. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation, and may terminate this agreement if Client does not cure.
12. Connections. To enable Client’s use of the Offerings, Client shall establish and maintain any necessary connections that meet SwervePay’s standards between Client’s network or systems and the Offerings. Client shall pay all costs related to setting up these connections. Client is responsible for making sure all such equipment functions appropriately and Client shall replace that equipment as needed.
13. Accuracy of Client Data. Client acknowledges that Client is responsible for the accuracy and integrity of the information Client provides through Client’s use of the Offerings and the setting up maintaining of any accounts to use the Offerings. Client is also responsible for adopting procedures to identify and correct errors and omissions in such provided information. Client shall maintain the security of any account user names, passwords and any other login information Client uses to access and use the Offerings and shall promptly notify SwervePay if Client becomes aware of any unauthorized disclosure or use of Client’s account information. Client acknowledges that SwervePay does not review any of Client’s data or information for accuracy, validity, or compliance and SwervePay is not responsible for errors caused by insufficient or inaccurate data. Client shall monitor the contents of any messages being sent through the Offerings.
14. Client’s Compliance with Laws and Standards. Client shall comply with and use the Offerings in a manner that complies with the Operating Rules (as defined in Exhibit 1), the Health Insurance Portability and Accountability Act, the Hi-Tech Act, the Fair Debt Collection Practices Act, the Electronic Funds Transfer Act, the Telephone Consumer Protection Act, the Payment Card Industry Data Security Standards, and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the collection of debts, processing payments, and Client’s business (“Laws and Standards”). Client acknowledges that it has not retained SwervePay to provide guidance, advice, or counsel with respect to compliance with the Laws and Standards. Client takes full responsibility and assumes all risk and liability for Client’s own compliance with the Laws and Standards and Client’s use of the Offerings in compliance with the Laws and Standards. Client will reimburse SwervePay for any fines, legal expenses, reasonable attorneys’ fees, or out of out of pocket costs incurred by SwervePay because of Client’s failure to comply with these Laws and Standards. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation.
15. Proprietary Rights. SwervePay retains sole and exclusive ownership of all right, title and interest in the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides to Client under this Agreement. To the extent necessary to verify this ownership, Client agrees to and hereby does assign to SwervePay all copyrights, patent rights, title, and all other proprietary rights to the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides under this Agreement. Client shall not alter, modify, adapt, translate, copy, reverse engineer, decompile, disassemble, or create any derivative works of the Offerings. Client shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that are contained in the Offerings or any related information, documentation, or deliverables. Client shall not attempt to circumvent or circumvent any user limits, license keys, or other license, timing or use restriction built into the Offerings.
16. Confidentiality. The party receiving information (“Recipient”) from the other party (“Discloser”) shall treat Discloser’s information as confidential (“Confidential Information”) unless: (1) Recipient is able to demonstrate that the Confidential Information was known to Recipient prior to the disclosure; (2) Recipient is able to demonstrate the Confidential Information is part of the public domain; or (3) Recipient’s personnel, without knowledge of the Confidential Information, independently develops the information. Except as permitted under this Agreement, Recipient shall only use the Confidential Information to perform its obligations and shall not disclose or permit any third party to disclose any Confidential Information to any other person. Recipient shall not and shall not permit any third party to reproduce the Confidential Information or any portions thereof unless such reproductions are permitted by or are necessary for Recipient to perform its obligations under this Agreement. Recipient shall ensure that all reproductions of Discloser’s Confidential Information contain (if any) Discloser's proprietary or confidentiality notices in the same manner in which such notices were set forth in or on the original. Recipient will protect the Discloser's Confidential Information in the same manner that it employs to protect its own Confidential Information and in no event, will Recipient use less than reasonable efforts to protect the Discloser's Confidential Information from disclosure. Recipient may disclose the Confidential Information to its employees, subcontractors, advisors, or affiliates, who have been informed of the confidential nature of the Confidential Information and who have obligations of confidentiality that protect such types of information from disclosure to third parties. If Recipient is required by law or court order to disclose Discloser’s Confidential Information, Recipient may disclose the Confidential Information; subject to, where legally permitted, Recipient will: (1) provide Discloser prompt and advance written notice of the requirement; and (2) after providing the notice, reasonably assist Discloser, at Discloser's election and expense, in seeking to obtain an order protecting the information from further disclosure.
17. Use of Data. Client acknowledges that (a) SwervePay provides Offerings under this Agreement that will utilize the data provided by Client to allow Client to collect payment and generate communications with individuals, and to achieve other desired outcomes; and (b) SwervePay collects statistical, system, user experience and other data related to Client’s use of the Offerings for the purposes of: (1) monitoring and improving the functionality of the Offerings; (2) offering trending or statistical De-Identified Data to SwervePay’s user base; and (3) aggregating and using De-Identified Data for SwervePay’s own business purposes as described in any applicable privacy policy for the Offerings. “De-Identified Data” means data that does not identify Client and does not identify any individual or identify any entity. SwervePay shall only use De-Identified Data in a manner that complies with applicable laws. Client authorizes SwervePay to transmit and share data submitted by Client to SwervePay’s processor, applicable financial institutions, Card Organization(s), and/or any other person or entity to facilitate the provision of the Payment Processing Services.
18. SwervePay Warranties. SwervePay warrants that SwervePay uses reasonably qualified personnel to provide the services. Client's sole and exclusive remedy for a breach of this warranty is SwervePay re-performing of the applicable services at no additional cost to Client. SwervePay warrants that SwervePay complies with the applicable Operating Rules and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the processing of payments, and SwervePay’s business. Client acknowledges that Client is not relying upon any other representations, warranties, or promises that are not contained in this Agreement. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, SWERVEPAY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE OFFERINGS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE REGARDING MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. SWERVEPAY DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL MEET CLIENT'S REQUIREMENTS OR THAT THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
19. Sunsetting. SwervePay may cease providing any of the Offerings by providing Client with at least 12 months advance written notice that the applicable Offering is being sunset. After that 12 month period, SwervePay will have no further obligations related to the applicable Offering and will cease charging Client for any applicable Fees associated with the sunsetted offering.
20. Termination for Breach. If either party breaches this Agreement in any manner, the other party may terminate this Agreement by first providing the breaching party with written notice describing the breach in detail and allowing the breaching party 30 days after receipt of the notice to cure the breach. If the breaching party fails to cure, this Agreement will automatically terminate at the end of the 30-day cure period.
21. Effect of Termination. Within 90 days of termination or expiration of this Agreement, Recipient will destroy and purge from its computer systems the Discloser’s Confidential Information (including all copies, excerpts and summaries thereof), except to the extent such Confidential Information is stored pursuant to the Recipient’s standard back-up procedures or retained to meet Recipient’s legal or regulatory requirements or Recipient’s internal audit, document retention or internal compliance requirements. If the Discloser’s Confidential Information is retained as permitted in this Section, the Recipient will continue to abide by the confidentiality obligation of this Agreement until the Recipient ceases retaining such Confidential Information. Recipient shall destroy and purge such Confidential Information within the normal timeframe for deleting and purging such data. Client acknowledges that SwervePay retains transaction records as required by applicable law and the Operating Rules and that information is not considered Client’s Confidential Information. Upon request by the Discloser, the Recipient will certify in writing that the Recipient has complied with its obligations under this Section. Sections 6, Sections 14-16, the disclaimer in Section 18, Sections 21-24, Sections 29-32 of these Terms and Conditions and Section 17 of the attached Sub-Merchant Processing Payment Terms survive termination of this Agreement.
22. Indemnification. Each party shall indemnify and defend the other party, its affiliates, and its officers, directors, and employees, from and against any third party claims, losses, damages, liabilities, lawsuits, and expenses (including reasonable attorneys’ fees, court costs and other defense expenses) arising out of or resulting from: (a) the indemnifying party’s failure to comply with the Operating Rules; (b) the indemnifying party’s breach of any warranty or representation under this Agreement; and (c) a data security breach or unauthorized access or disclosure of Client data or Payer information arising out of any act or omission of the indemnifying party, its affiliates, or contractors. The indemnified party shall notify the indemnifying party of any claim that falls under this Section promptly after the indemnifying party learns of such claim; provided, however, that the indemnifying party will only be relieved of its obligations under this Section due to the failure of the indemnified party to provide such prompt notice to the extent that the failure materially prejudices the indemnifying party in defending such claim. The indemnifying party’s obligations under this Section are conditioned upon the indemnified party: (i) providing all reasonably requested information and cooperation to the indemnifying party; and (ii) giving the indemnifying party sole control of the defense or settlement of such claim, at the indemnifying party’s sole cost and expense; provided, however, that the indemnifying party may not settle any such claim in a manner that requires the indemnified party to admit fault or incur any direct expense without the consent of the indemnified party, which will not be unreasonably withheld or delayed. If the indemnifying party fails to timely undertake the defense of a claim under this Section, each of the indemnified parties may undertake the defense (including settlement) of such claim and the indemnifying party will reimburse the indemnified parties for all such costs.
23. Limitation of Liability. For any causes of action, claims, or assertions arising under or related to this Agreement or to the offerings (each a “Claim”), Swervepay’s liability in the aggregate to Client will not exceed THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO SWERVEPAY PURSUANT TO THIS AGREEMENT during the 6 months prior to the date the Claim is made, regardless of the form of action (whether based on contract, tort, negligence, strict liability, or otherwise). IN NO EVENT WILL SWERVEPAY BE LIABLE TO CLIENT FOR ANY LOST PROFITS OR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES OF ANY TYPE OR NATURE, EVEN IF SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT FEES OR CHARGES OF THE CARD ORGANIZATIONS OR OTHER THIRD PARTIES PASSED THROUGH TO CLIENT PURSUANT TO THIS AGREEMENT WILL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO SWERVEPAY WHEN DETERMINING SWERVEPAY’S LIABILITY UNDER THIS SECTION. CLIENT EXPRESSLY AGREES TO PAY ANY FEES OR ASSESSMENTS LEVIED BY ANY CARD ORGANIZATION AS A RESULT OF ANY ACTIVITY ASSOCIATED WITH CLIENT’S MERCHANT ACCOUNT, AND THAT SWERVEPAY IS NOT LIABLE FOR ANY SUCH FEES OR ASSESSMENTS UNDER ANY CIRCUMSTANCES. FURTHER, UNDER NO CIRCUMSTANCES WILL SWERVEPAY HAVE ANY LIABILITY TO CLIENT FOR PLACING CLIENT ON THE MATCH LIST BASED ON A GOOD FAITH, REASONABLE BELIEF BY SWERVEPAY THAT SUCH PLACEMENT WAS PROPER.
24. Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the state of Indiana in the United States without regard to conflict of law principles. All disputes arising out of or related to this Agreement will be exclusively brought and exclusively maintained in the State courts located in Delaware County, Indiana, or the United States District Court for the Southern District of Indiana, Indianapolis Division (or upon appeal, to the appellate courts of corresponding jurisdiction to such State or Federal court). Each party consents to and waives any objection to the exclusive personal jurisdiction and venue of such State and Federal courts.
25. Government Sales. This section applies to all acquisitions of the Offerings and documentation (collectively or individually for the purposes of this section, the “Government Acquired Products”) by or for the government of the United States of America or other government entity (the “Government”), or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the Government. By accepting delivery of the Government Acquired Products, Client hereby acknowledges that (a) the Offerings and documentation have been developed exclusively at private expenses, (b) the software based Offerings are commercial software and the documentation is commercial software documentation within the meaning of the acquisition regulation(s) applicable to this procurement, (c) the terms and conditions of this Agreement govern the all use and disclosure of the Government Acquired Products, and will supersede any conflicting contractual terms or conditions, and (d) this Agreement meets the Client’s needs or is consistent in all respect with United States law.
26. Force Majeure. Except for Client's payment obligations hereunder, a party will not be responsible for any failure to perform due to acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, strikes, or other causes beyond its reasonable control (each a "Force Majeure Event") provided that such party gives prompt written notice to the other party of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event. If the Force Majeure Event causes a delay of more than three months, either party may terminate an Order or this Agreement without penalty by providing written notice to the other party.
27. No Transfer or Assignment. Without obtaining SwervePay’s advance prior written consent, Client shall not assign, transfer, sublicense, subcontract, or otherwise delegate, in whole or in part any of Client’s rights, duties or obligations under this Agreement, including the right to receive settlement of funds pursuant to this Agreement. Any assignment, transfer, or delegation made by Client without complying with this Section is null and void and will permit SwervePay to terminate this Agreement immediately upon providing written notice to Client. Any, indirect or direct, change of ownership of Client is considered an assignment.
28. Export. Client shall not export or re-export the Offering without the prior written authorization of SwervePay and, as may be required under United States laws and regulations, the prior written authorization of the United States Department of Commerce or any other relevant Federal agency. SwervePay does not represent that the Offerings are appropriate or available for use in other countries. If Client obtains SwervePay’s authorization to export the Offerings, Client is solely responsible for compliance with all applicable laws, including export and import regulations of other countries.
29. Notices to Client. Client consents to do business electronically with SwervePay and receive electronic communications from SwervePay under this Agreement. SwervePay may provide Client notices, disclosures, or other information about the Offerings and Fees charged under this Agreement. Client agrees that SwervePay may provide this information and these notices by making them available on SwervePay’s website, through any mobile application in use by Client, or by sending Client an e-mail to Client’s email of record with SwervePay when Client signed up for any of the Offerings. Notices provided on the website or through a mobile application will be deemed given and received within 24 hours of posting and notices sent to Client’s email will be deemed given and received on the date of transmission. Alternatively, SwervePay may provide written notice by delivering the notice to Client at the most recent address that SwervePay has on file for such Client. Notices provided to Client’s most recent address will be deemed given and received at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if by a reputable overnight delivery service with tracking capabilities. Client may update the address of its principal office by providing notice to SwervePay.
30. Notices to SwervePay. All written notices to SwervePay under this Agreement need to be in writing and delivered to SwervePay at its principal office (currently, 1150 W. Kilgore Ave; Muncie, IN 47305) and to the attention of the “Legal Department”. The notice is deemed received by a party at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S. certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if sent by a reputable overnight delivery service with tracking capabilities. SwervePay may update the address of its principal office by providing notice to Client.
31. Amendments. SwervePay may updates these Terms and Conditions or the attached Sub-Merchant Payment Processing Terms at any time by providing Client with at least 90 days advance written notice. By continuing to use the Offerings after this 90 day period, Client will be deemed to have accepted the updated Terms and Conditions or updated Sub-Merchant Payment Processing Terms (“Updated Terms”). If Client does not agree to the Updated Terms, Client will prior to the expiration of the 90 day period, cease all use of the Offerings and notify SwervePay that Client is terminating this Agreement. If Client does not provide such notice within the 90 day period, Client’s right to terminate under this Section will expire. SwervePay may withdraw the Updated Terms within 30 days of when Client notifies SwervePay of Client’s desire to terminate this Agreement and have the Agreement continue under the unaltered Terms and Conditions or unaltered Sub-Merchant Payment Processing Terms. If SwervePay does not withdraw the Updated Terms, then this Agreement will terminate in accordance with Client’s notice.
32. General. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals, prior agreements, and other communications (oral or written) between the parties relating to the subject matter of this Agreement. A waiver by either party of or a party’s delay exercising its rights under this Agreement does not constitute a waiver of any other provision, breach, or default. If any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions will remain in effect. This Agreement inures to the benefit of and binds the parties, their permitted successors, heirs, and assigns. In all matters relating to this Agreement, Client and SwervePay will act as independent contractors. Neither party shall represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as an agent, employee, franchisee, or in any other capacity. Except as it relates to each of the party’s obligations under Section 22, the parties hereby agree that there are no third party beneficiaries under this Agreement.
Exhibit 1
Sub-Merchant Payment Processing Terms
1. Payment Facilitator Relationship. SwervePay is a Payment Facilitator. “Payment Facilitator” is defined by the Operating Rules and generally refers to a service provider that is registered with a processer to facilitate the processing of payment transactions on behalf of sub-merchants. As a Payment Facilitator, Client acknowledges that SwervePay is not a bank, that there is no fiduciary relationship between Client and SwervePay, and that SwervePay enters into agreements with other processors and banks to provide the Payment Processing Services.
2. Operating Rules. In using the Payment Processing Services, Client shall comply at all times with the Operating Rules. “Operating Rules” means (1) the by-laws, operating regulations and all other rules policies and procedures of MasterCard International, Inc. (“MasterCard”), VISA USA, Inc. (“Visa”), Discover, American Express, and other payment networks (“Card Organizations”); (2) the Payment Card Industry Data Security Standard; (3) the VISA Cardholder Information Security Program and Payment Application Best Practices; (4) the MasterCard Site Data Protection Program and POS Terminal Security Program; (5) American Express’s Data Security Operating Policy; (6) Discover’s Information Security & Compliance Program; and (7) any other program or requirement that may be published or mandated by MasterCard, Visa, Discover, American Express, or other payment networks/card associations.
3. Sub-Merchant Account. To use the Payment Processing Services Client shall work with SwervePay to set up and maintain one or more sub-merchant accounts by: (1) providing all required documentation and information, and (2) cooperating with SwervePay’s due diligence, Office of Foreign Asset Control related inquiries, and underwriting efforts. Client shall provide and maintain accurate and complete information with SwervePay to enable SwervePay to provide the sub-merchant accounts and the Payment Processing Services. Client authorizes SwervePay to share any such information with SwervePay’s processors, the sponsor bank, Client’s financial institutions, the Card Organizations, or to any other person or entity whose involvement is necessary to provide the Payment Processing Services. Client acknowledges that SwervePay will perform ongoing risk assessments related to Client’s sub-merchant accounts in accordance with the Operating Rules. Client authorizes SwervePay to request reports about Client from consumer reporting agencies, and Client shall cooperate to provide all documents requested by SwervePay to perform ongoing monitoring and analysis of Client’s financial condition. If any information is identified in these activities by SwervePay that either prevents SwervePay from being able to establish a sub-merchant account for Client or requires that SwervePay terminate Client’s existing sub-merchant account, SwervePay may immediately cease providing the Payment Processing Services, the other Offerings, and terminate this Agreement by providing notice to Client.
4. Client Warranties and Obligations. Client warrants that the individual entering into this Agreement on behalf of Client is at least 18 years of age and is authorized to enter into this Agreement. Client further warrants (a) it is either a legal resident of the United States, a United States citizen, or a legal business entity authorized to conduct business in one of the states in the United States; (b) the name identified by Client when Client completed the Enrollment Form is Client’s name under which Client operates and will obtain payment transactions; and (c) Client is in good standing, has all necessary licenses and permits to operate its business, and has all necessary right, power, and ability to comply with the terms of this Agreement. Client shall only use the Payment Processing Services within the United State. Client shall provide SwervePay with timely notification of any: (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; (iii) an adverse governmental or regulatory actions taken against Client; (iv) any change in the nature of Client’s products or services that makes the products or services materially different to what was previously represented to SwervePay; and (v) any other adverse changes that would interfere with Client’s ability to fulfill Client’s obligations under this Agreement. Client shall fulfill all obligations to Client’s customers related to any payment transaction and will be solely responsible for and resolve any dispute or complaint with a Payer.
5. Restrictions. Client shall:
b. not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (1) adult content; (2) airline or cruise line; (3) credit counseling or identity protection services; (4) sales to or from operations outside the United States of America and Canada; (5) distressed property sales and marketing; (6) gambling establishments or gambling; (7) card not present tobacco or pharmaceutical sales; (8) goods or services sold through rebate or upsell programs; (9) timeshare resales and related marketing of goods, services or properties; (10) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; or (11) buyer club activities or buyer club memberships.
c. not submit any transaction that: (1) adds any surcharge or other amount to the transaction as a condition of paying with a payment card, except to the extent authorized by the Operating Rules and applicable law; (2) adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately; (3) represents the refinancing or transfer of an existing Payer obligation that is deemed to be uncollectible or arises from the dishonor of a Payer’s personal check or from the acceptance of a Card at a terminal that dispenses scrip; (4) is not a valid transaction between the Client and a bona fide Payer; (5) Client knows or should have known to be fraudulent or not authorized by the Payer; (6) does not result from an act between Client and the Payer; or (7) required a valid authorization and it was not obtained.
d. not submit any refund transaction: (1) that does not correlate to an original sales transaction from the Payer; (2) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Payer for postage paid by the Payer to return merchandise in accordance with a policy applied consistently by Payer to all Client customers, (3) for returned products that were acquired in a cash purchase from Client; (4) that would cause an overdraft; or (5) more than three business days following either: (A) a regulatory requirement granting a Payer’s right to a refund; or (B) a non-disputed Payer request;
e. not transfer or attempt to transfer Client’s financial liability by asking or requiring Payer to waive their dispute rights; and
f. not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
6. Direct Processing Agreement. In accordance with the Operating Rules, SwervePay may need to have Client execute a direct agreement with SwervePay’s payment processor, in the form provided by SwervePay’s processor. Client will execute that direct agreement upon SwervePay’s request. If a direct agreement is deemed required and Client fails to enter into it upon request or the payment processor terminates the direct agreement at any time, SwervePay may cease providing the Offerings and terminate this Agreement by providing written notice to Client.
7. Deposit Account. As part of the Enrollment Form and for any subsequent account Client opens related to the Payment Processing Services, Client shall complete an Authorization for Direct Deposits form and for the duration of this Agreement, Client shall maintain one or more commercial checking account(s) to facilitate payment of payment transactions and automated clearing house network transfers between SwervePay and Client (“Deposit Account”). Client will notify SwervePay in writing any time there is a change in the Deposit Account information that will materially affect the ability of SwervePay to facilitate ACH transactions to Client’s Deposit Account. Client acknowledges that SwervePay is not responsible for any failure of Client to receive an ACH transfer that is caused by Client failing to maintain the Deposit Account or accurate Deposit Account information with SwervePay. Client shall maintain sufficient funds in the Deposit Account to accommodate the payment of any Fees, Chargeback liabilities, charges associated with the purchase of Terminals, or payment of any assessments from the Card Organizations.
8. Distribution of Funds to Client. Within one to two business days of a deposit of the funds from a payment by a Payer of an obligation due to Client into the Settlement Bank Account (“Funds”), SwervePay will have the Member Bank transmit via an ACH transfer to Client’s Deposit Account the Funds owed to Client provided that SwervePay receives a valid authorization code from the applicable Card Organization. Client further acknowledges that availability of the Funds for use by Client is subject to the control of the banking institutions and SwervePay is not responsible for any delay caused by the banking institutions. “Settlement Bank Account” means a bank or escrow account maintained by the Member Bank for receipt of payments made through the Payment Processing Services. “Member Bank” means a financial institution that provides credit card processing services for SwervePay under this Agreement. Each transaction will be considered complete when SwervePay has received the Funds and when such Funds have been accepted by Client’s designated bank or financial institution.
9. Chargebacks. A “Chargeback” occurs if a charge or transaction is reversed or returned for any reason to Client’s sub-merchant account by a Payer or card issuer. Client is solely responsible for the payment of all Chargebacks, and under no circumstances shall SwervePay be responsible for Chargebacks. Further, if a Chargeback occurs for any reason, Client will pay to SwervePay any administrative fees set forth in the Enrollment Form that reflects SwervePay’s involvement in the Chargeback resolution process. For any Chargeback, Client will also pay all credit card, debit card, bank, and ACH transaction fees, fines or penalties and refund all Funds transferred to Client’s Deposit Account corresponding to the Chargeback amount. Client will be notified of the Chargeback and of the amount due. If Client has a reason to dispute the Chargeback, Client has to dispute the Chargeback based on the date provided in the Chargeback notice. SwervePay has no independent obligation to investigate, dispute, or attempt to obtain reversal or adjustment of any Chargeback. SwervePay may deduct, and Client authorizes SwervePay to deduct, the amount of any Chargeback and any associated fees, fines, or penalties assessed by each processor and bank from: (a) Client’s sub-merchant account, (b) Client’s Reserve Account (if applicable), (c) Client’s Deposit Account; or (d) any amounts due to Client. If Client is incurring an excessive number of Chargebacks, SwervePay may increase the Fees, may hold back settlement of funds, establish or increase the fund requirements for a Reserve Account, or terminate this Agreement by providing written notice to Client. Client is responsible for monitoring Client’s monthly Chargeback percentage and developing Chargeback reduction programs as required by the Card Organizations.
10. Correcting Payment Errors. Client authorizes SwervePay, SwervePay’s processor, or Member Bank to debit the Deposit Account or Reserve Account for any misdirected deposits, duplicate deposit, or inadvertent overpayments into Client’s Deposit Account. This debit authorization survives the termination of this Agreement until SwervePay validates that there are no Incorrect Deposits that need to be addressed.
11. Statements and Client Review. SwervePay shall make available to Client statements and transaction reports reflecting Client’s sub-merchant account activity (“Statements”). Client acknowledges that Client has 90 days from when the Statements are made available to Client to review the Statements for accuracy. Subject to Client providing SwervePay with written notice of any dispute or discrepancy related to the Statement within that 90 day period, Client may reasonably dispute a Statement. Upon receipt of the dispute by SwervePay, SwervePay will review the disputed Statement and the parties will work together in good faith to resolve the dispute. If it is determined that SwervePay owes any additional amounts to Client, SwervePay will disperse that amount in accordance with Section 8 of this Exhibit. Client agrees that SwervePay will not be liable to Client or have any obligation to resolve any discrepancy in any Statement that Client does not dispute in accordance with this Section. Client’s failure to follow the dispute resolution procedures in this Section shall result in all such disputes being waived by Client.
12. Reserve Account. Upon notice to Client, SwervePay may elect or be required by SwervePay’s payment processor to establish a non-segregated account at a financial institution to ensure payment of all of Client’s payment or Fee obligations under this Agreement (“Reserve Account”). Client hereby permits SwervePay to fund the Reserve Account through (a) debiting the Deposit Account; (b) withholding Funds and depositing those funds in the Reserve Account; or (c) invoice Client and Client will pay such invoice within 30 days of the date of the invoice. SwervePay may continue to hold the Reserve Account with any amounts in it for up to one year after the termination of this Agreement. Client acknowledges that Client will not receive any interest on the amounts in the Reserve Account and has no right to access the amounts in the Reserve Account until SwervePay closes the Reserve Account and provides all amounts (if any) in the Reserve Account to Client. SwervePay will close the Reserve Account and release any amounts to Client once Client satisfies all payment obligations under this Agreement. The funds in the Reserve Account will be deemed to be the exclusive property of SwervePay, and not the merchant, while SwervePay holds such funds. Without in any way limiting the foregoing, and merely as an additional form of security, Client hereby further grants SwervePay a security interest in the Reserve Funds to the full extent necessary to satisfy any of Client’s obligations to SwervePay. SwervePay may enforce its security interest with or without notice or demand. The security interest(s) granted under this section will continue after termination of this Agreement until Client satisfies all its obligations to SwervePay. Client further agrees to execute and deliver to SwervePay such instruments and documents as SwervePay may reasonably request to confirm and perfect the security interest(s) granted by this Agreement.
13. Investigations and Sharing of Information. If SwervePay reasonably believes that a transaction is in violation of this Agreement, is illegal or otherwise may cause harm to SwervePay, Client, a Payer, or SwervePay’s processor, SwervePay may choose not to authorize, process, or settle the transaction. If SwervePay discovers any such transaction or any other unusual or unexpected transaction activity on Client’s sub-merchant account, Client authorizes SwervePay to hold Funds while SwervePay conducts an investigation into the transaction activity. As part of such investigation and upon SwervePay’s request, Client will provide all documentation requested to support or otherwise validate any transaction being investigated. As part of any SwervePay investigation or if required by law, court order, or a request from law enforcement or a governmental entity, SwervePay may withhold and defer the distribution to Client of any Funds until such investigation concludes, or such legal or governmental requirement no longer applies. If SwervePay reasonably believes that the Payment Processing Services have been used for an illegal, unauthorized or criminal purpose, Client expressly authorizes SwervePay to share information about Client, Client’s sub-merchant account, or Client’s transactions with Client’s banks, Client’s financial institutions, SwervePay’s processor, the Card Organizations, SwervePay’s advisors, and with law enforcement and governmental entities. If SwervePay reasonably believes in good faith that that Client needs to be reported under the Operating Rules, Client acknowledges that SwervePay may report Client to the MATCH list (Member Alert to Control High-Risk), the Card Organizations, any applicable governmental agency or law enforcement agency.
14. Honoring Cards. Client has the responsibility to validate the identity of the Payer and the Payer’s payment card information. If Client determines a payment card is expired or that the account number is listed on a current Electronic Warning Bulletin file or the account number does not match the card’s magnetic strip or chip, Client will not honor the payment card or the transaction. Client shall ensure that the Payer understands Client is responsible for the transaction and all the details related to the charges that will be processed on Payer’s payment card. Client shall maintain return and refund policies that comply with the Operating Rules and disclose to Payers any refund or return policies Client has. Unless a Payer expressly declines a written receipt, Client shall make a receipt available to a Payer for any transaction, whether in writing or via electronic means. Notwithstanding Client’s obligations herein SwervePay shall have the right, in its sole discretion, to decline to process any transaction that it believes is improper, fraudulent, unlawful, or otherwise in violation of any Laws and Regulations.
15. Client’s Security Obligations. Client shall keep all payment card, account information and personal information of a Payer (“Payer Information”) confidential and not disclose such information to a third party except as permitted under the Laws and Standards. Client shall keep Payer Information in a secure manner to prevent disclosure to unauthorized parties and in a manner that complies with all the Laws and Standards. Upon SwervePay’s request, Client will provide proof to SwervePay of Client’s compliance with the Laws and Standards. Client will only use the Payer Information for obtaining payment and not use or disclose the Payer Information for marketing purposes or any other unauthorized use without express consent of the Payer. Client shall immediately notify SwervePay if: (a) Client has reason to believe that Client’s sub-merchant account is no longer secure or being used for unauthorized purposes; or (b) Client discovers or has reason to suspect that a data breach has occurred. In any such event, Client will fully cooperate, at its expense, with all remediation efforts, forensic examination, and mitigation procedures required under the Laws and Standards or reasonably requested by SwervePay, the Card Organizations, SwervePay’s processor, and any of the parties’ banks or financial institutions. Client acknowledges that any failure to comply with the Laws and Standards or the occurrence of any data breach suffered by Client may result in Client being assessed penalties or fines by the Card Organization and Client shall pay those penalties and fines.
16. Third Parties. To the extent Client uses any third party to process, store, receive, transmit, or otherwise have access to Payer Information, Client assumes full responsibility and liability for such third party’s compliance with this Agreement and the Laws and Standards. SwervePay is not liable for the acts or omissions of such third parties. Client further agrees to notify SwervePay of the identity of all such third parties if those third parties relate to the Payment Processing Services and to ensure that such third parties are properly registered, if required to be so, with the Card Organizations. SwervePay may require any such third parties to undergo testing, approval, and certification by SwervePay or SwervePay’s bank or processer. SwervePay may, at any time, also terminate such third parties’ access to or ability to integrate with SwervePay. For the sake of clarity, SwervePay’s affiliates or subcontractors are not considered a third party under this Section.
17. Termination and Suspension Rights. In addition to the termination rights set forth in the Terms and Conditions, SwervePay may suspend providing the Payment Processing Services to Client upon providing notice to Client, if Client: (a) has violated these Sub-Merchant Payment Processing Terms or any of the Laws and Standards; (b) poses an unacceptable credit or fraud risk, as determined by SwervePay, SwervePay’s processor, or the Card Organizations; (c) becomes subject to any investigation or enforcement action by law enforcement or a governmental entity; (d) falls outside of SwervePay’s credit policies; (e) provides any false, incomplete, inaccurate, or misleading information or otherwise engages in fraudulent or illegal conduct; or (f) becomes part of the MATCH list or Terminated Client File maintained by MasterCard. If SwervePay suspends providing the Payment Processing Services for any of the foregoing reasons and the circumstances do not change after 30 days, SwervePay may terminate this Agreement by providing written notice to Client. Upon suspension of the Payment Processing Services or termination of this Agreement for any reason, (i) all pending transactions will be cancelled; (ii) Client shall pay all Fees and any other amounts owed to SwervePay that were accrued prior to the termination; and (iii) Client will remain liable for any and all Chargebacks, credits, adjustments, penalties, fines, costs, and all other amounts that become due prior to or after the suspension or termination. As part of the suspension or termination of the Agreement, SwervePay may establish and maintain a Reserve Account in accordance with Section 14 of this Exhibit. If Client is subject to an investigation or enforcement action at the time Client seeks to close a Client sub-merchant account, SwervePay may retain the Funds in the sub-merchant account or a Reserve Account until the investigation or action is completed.
18. Provisions Specific to American Express. If Client is accepting American Express card payments, Client agrees to the following in connection with its acceptance of American Express cards:
a) Any request to accept American Express cards is subject to approval by American Express. If approved, Client authorizes SwervePay to submit American Express card transactions to American Express. Client also agrees to accept settlement from American Express.
b) The American Express Merchant Operating Guide is incorporated into this Agreement by reference and available at the following link: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf. Client’s acceptance of American Express cards must be in accordance with American Express’s Merchant Operating Guide and any other rules promulgated by American Express, as amended from time to time.
c) Client may opt out of receiving commercial marketing materials from American Express without affecting Client’s ability to accept American Express cards or to receive important transactional or relationship messages from American Express.
d) Client agrees that American Express may use information obtained from Client to screen or monitor Client in connection with American Express card marketing and administrative purposes. In addition, American Express may use data obtained from Client to perform American Express’s responsibilities with the American Express OptBlue Program, to promote the American Express network, to perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes, and important transactional or relationship messages.
e) Client agrees that it may be converted from American Express Card acceptance pursuant to this Agreement to a direct American Express Card acceptance relationship with American Express if and when it becomes a High CV Merchant. “High CV Merchant” means a merchant with either (1) greater than $1 million in American Express Card Transaction volume (including volume from all Merchant locations) in a rolling 12 month period; or (2) greater than $100,000 in American Express Card Transaction volume (including all volume from all merchant locations) in any three consecutive months. Client will be notified if such a conversion is required and upon such conversion, Client will be bound by American Express’s then-current Card Acceptance Agreement and Client agrees that American Express will set pricing and other fees payable by Merchant for American Express Card acceptance.
f) Upon termination of this Agreement or of Client’s ability to accept American Express Cards hereunder, Client agrees to remove American Express identifying marks from Client’s website and wherever else they Client displays them.
g) Client agrees to have a refund policy for transactions on American Express cards that is at least as favorable as the refund policy or transactions on other card types.
h) Client acknowledges that it may opt out of accepting American Express cards at any time without affecting its right to accept other payment cards.
i) American Express is a third party beneficiary to this Agreement with respect to the rights in this Agreement, but not the obligations and will be able to enforce the terms of this Agreement against the Client as it relates to Client’s accepting of American Express card payments.
Client: {{{Customer_Legal_Name}}} | |
By: {{{signer.full.name}}} | |
Its: {{{Business_Title}}} | |
Date of Execution: {{{Todays_Date}}} | |
Address: {{{Customer_Street_Address}}} {{{Customer_City}}} {{{Customer_ZipCode}}} {{{Business_State}}} | |
Email: {{{Customer_Signor_Email}}} |
Effective October 6, 2021 to October 6, 2021
DownloadTable of Contents
SwervePay Offerings Terms and Conditions (Last Updated December 1, 2020)
Please read the following carefully because these SwervePay Offerings Terms and Conditions (“Terms and Conditions”) govern your and your business’s use of the Offerings provided by SwervePay, LLC. By enrolling to use and using the Offerings you are accepting these Terms and Conditions on behalf of your business and acknowledge that this is a legal agreement between your business and SwervePay, LLC, a Delaware Limited Liability Company, with offices at 1150 W. Kilgore Ave., Muncie IN 47305 (“SwervePay”).
If you do not agree with these Terms and Conditions and the Sub-Merchant Payment Processing Terms, attached hereto as Exhibit 1, in their entirety, you and your business cannot enroll to use and cannot actually use any of the Offerings. Your use of any of the Offerings will constitute your agreement to these Terms and Conditions even if you do not physically sign this agreement.
1. Client. “Client” means the business that has enrolled to use and will use the Offerings (as defined in Section 5).
2. Enrollment. “Enrollment Form” means the enrollment form completed by Client to use the Offerings and any applicable attachments to the Enrollment Form referenced therein. To use any of the Offerings, Client will need to complete the applicable Enrollment Form and as part of the enrollment process, indicate Client’s agreement to these Terms and Conditions. The Enrollment Form sets forth the fees for the Offerings. If there is any conflict between the Enrollment Form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Terms, these Terms and Conditions will prevail. The enrollment form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Term, form the agreement between the parties (“Agreement”).
3. Effective Date and Term. The date Client accepts these Terms and Conditions by submitting an Enrollment Form is the effective date of the Agreement (“Effective Date”). The Enrollment Form will specify the duration of the initial term of the Agreement from the Effective Date (“Initial Term”). Thereafter, the term of the Agreement will automatically renew for successive one year periods (each a “Renewal Term”), unless a party provides the other party written notice of termination at least 30 days prior to the renewal date. In which case, this Agreement will automatically terminate at the end of the then current Term. “Term” means the Initial Term and any Renewal Term(s).
4. Payment Processing Services. Upon enrollment and approval by SwervePay in accordance with this Agreement, SwervePay shall provide Client with payment processing services that enable Client to accept payments via payment cards, automated clearing house transactions (“ACH”), and other approved electronic payment transactions into Client’s bank account through electronic means (“Payment Processing Services”). SwervePay will provide and Client will use the Payment Processing Services in accordance with the attached Sub-Merchant Payment Processing Terms. However, for card transactions with cards issued by American Express, Discover, or any other closed loop Card Organization, SwervePay shall provide authorization services only, and shall not have any responsibility for the settlement to client of the funds associated with such card transactions. Instead, Client authorizes settlement of transactions to be made directly by American Express, Discover, or other closed loop Card Organization(s).
5. Offerings and Right to Use To the extent SwervePay makes available to Client and Client elects to use any of the following, SwervePay will permit Client to use (a) communication tools, such as texting, e-mail, chatbots, or other electronic means for Client to communicate with Payers (“Communication Tools”); (b) web-based point of sale system (“Point of Sale Tool”); and (c) payment portals made available over the internet for the purposes of Client to collect payments from Payers (“Portals”). “Payer” means any individual or entity making a payment to Client using payment cards, ACH, or other approved electronic payment transactions. “Offerings” means the Payment Processing Services, Communication Tools, Point of Sale Tool, and Portals to the extent Client is using any of the forgoing. Subject to Client paying all necessary Fees and complying with all the other terms of this Agreement, SwervePay grants Client a non-exclusive and non-transferable subscription right for Client to use the Offerings for the Term.
6. Fees and Taxes. Client shall pay SwervePay the fees for the Offerings as set forth in the Enrollment Form (“Fees”). SwervePay may modify, increase, add different, or otherwise change the Fees by providing Client 30 days’ advance written notice provided in accordance with Section 29. Client’s continued use of the Offerings will indicate Client’s consent to the change in Fees. If Client does not agree to the change in Fees, Client will need to notify SwervePay in writing of the objection and cease all use of the Offerings. Client acknowledges that the Fees do not include any taxes. Client shall collect, report, and remit any taxes required to be collected, paid, or withheld in connection with the Offerings and Terminals. Taxes are Client’s sole responsibility. SwervePay is not responsible for determining whether or not taxes apply or for calculating, collecting, reporting, or remitting any taxes on Client’s behalf. If a tax authority seeks collection from SwervePay of any taxes in connection with this Agreement, then Client shall reimburse SwervePay upon receipt of notice from SwervePay that SwervePay has paid such tax. SwervePay and its process may make available any reports required by law regarding Client to the Internal Revenue Service or any other Federal or state taxing authority.
7. Terminals. SwervePay may permit Client to purchase point of sale payment card processing terminals (“Terminals”). Upon Client delivering payment for the purchase of the Terminals, Client shall own the Terminals. Client acknowledges that the Terminals are manufactured by third parties and are only provided for Client’s convenience. SwervePay provides all Terminals on “AS IS” basis and without any warranty of any kind. Client assumes all responsibility and liability for its use and the security of the Terminals. SwervePay disclaims all liability related to any defects or vulnerability in the Terminals, any third party hacking or otherwise gaining unauthorized access to the Terminals, or any use of the Terminals by Client.
8. Communication Tools. To the extent Client utilizes the Communication Tools, Client shall obtain all necessary consents from the Payers to use the Communication Tools to communicate with the Payer. Client shall comply with any applicable legal obligation, carrier requirements, or industry standards related to communicating with Payers using the Communication Tools. Client shall make public terms and conditions related to Client’s use of the Communication Tools to communicate with the Payer and have each Payer agree to those terms and conditions. To the extent Client uses any Communication Tool that requires the use of a telephone carrier or wireless services provider, Client acknowledges that the applicable messages and associated data will be transmitted through such carriers and providers. Client authorizes SwervePay to disclose all requested information to the carriers and providers to allow Client’s use of the applicable Communication Tools. Client also acknowledges that some of the Communication Tools may require the uploading and transmitting of data and information over the Internet.
9. Implementation. The parties shall cooperate with one another to set up and enable Client’s use of the Offerings. Client acknowledges that the implementation of the Offerings will not begin until SwervePay assigns resources to begin the project. Client shall provide SwervePay with all access to any data, systems and information reasonably required to implement the Offerings. SwervePay will provide all implementation services on a remote basis between the hours of 8 am and 5 pm based on the location of the resources performing the implementation services. Client shall provide at least one qualified Client representative to receive training on the Offerings.
10. Support and Maintenance. After making the Offerings available for Client’s use in a production environment (“Go Live Date”), the parties will cooperate with one another in the administration of the Offerings. Client may contact SwervePay through SwervePay’s designated support communication channels to obtain general support by logging a support ticket. SwervePay will seek to make any Intrusive Changes only during its standard or scheduled maintenance windows. As used in this Section, “Intrusive Changes” means maintenance that will render the Offerings unavailable and “Non-Intrusive Changes” means maintenance that is not intended to make any of the Offerings unavailable. Client acknowledges that SwervePay performs Non-Intrusive Changes as needed.
11. SaaS Offerings. For Offerings either hosted or provided as a software as a service (“SaaS Offerings”), SwervePay may utilize one or more third-party hosting providers to provide the SaaS Offerings and may change hosting providers by providing Client 30 days advance written notice. SwervePay uses reasonable efforts to make any of the SaaS Offerings available. Client acknowledges that SwervePay may make any of the SaaS Offerings unavailable during Scheduled Downtime and for Emergency Maintenance. “Scheduled Downtime” means time required to perform backup, maintenance and restore any of the SaaS Offerings that occurs during SwervePay’s standard maintenance window or during any additional downtime that is scheduled in advance by SwervePay. "Emergency Maintenance" means any corrective action intended to address hardware or software failures, viruses, malware, worms, other disabling code, or other conditions likely to cause degradation, security risks, or interruption, as designated by SwervePay in its reasonable discretion, with or without notice to Client. In using the SaaS Offerings, Client shall not: (a) forge authentication credentials, use the authentication credentials of another user or disclose Client’s authentication credentials to any third party; (b) damage, bypass, break, or otherwise circumvent any of SwervePay’s security mechanisms; (c) use the SaaS Offerings: (i) to attempt to breach, circumvent or hack a third party, (ii) to transmit viruses, malicious, harmful, or deleterious programs or code, (iii) to launch or facilitate a denial of service attack; or (iv) in a manner that otherwise poses a security threat; (d) probe, scan, or test the vulnerability of the SaaS Offerings or monitor data or traffic of the SaaS Offerings without permission from SwervePay; (e) reverse-engineer the SaaS Offerings in order to find limitation, vulnerability or to evade, disable, or render inaccurate accounting billing, capacity limitations, or other functions of the SaaS Offerings; (f) use the SaaS Offerings to encourage, facilitate, engage, or in connection with abuse, harassment, discrimination, fraudulent activities, deceptive practices or other unlawful activities, or harmful or malicious acts; or (g) use the SaaS Offerings in a manner that would violate the Truth in Caller ID Act, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, the Do-Not Call Implementation Act, or any other local, state, federal, or foreign law or regulation. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation, and may terminate this agreement if Client does not cure.
12. Connections. To enable Client’s use of the Offerings, Client shall establish and maintain any necessary connections that meet SwervePay’s standards between Client’s network or systems and the Offerings. Client shall pay all costs related to setting up these connections. Client is responsible for making sure all such equipment functions appropriately and Client shall replace that equipment as needed.
13. Accuracy of Client Data. Client acknowledges that Client is responsible for the accuracy and integrity of the information Client provides through Client’s use of the Offerings and the setting up maintaining of any accounts to use the Offerings. Client is also responsible for adopting procedures to identify and correct errors and omissions in such provided information. Client shall maintain the security of any account user names, passwords and any other login information Client uses to access and use the Offerings and shall promptly notify SwervePay if Client becomes aware of any unauthorized disclosure or use of Client’s account information. Client acknowledges that SwervePay does not review any of Client’s data or information for accuracy, validity, or compliance and SwervePay is not responsible for errors caused by insufficient or inaccurate data. Client shall monitor the contents of any messages being sent through the Offerings.
14. Client’s Compliance with Laws and Standards. Client shall comply with and use the Offerings in a manner that complies with the Operating Rules (as defined in Exhibit 1), the Health Insurance Portability and Accountability Act, the Hi-Tech Act, the Fair Debt Collection Practices Act, the Electronic Funds Transfer Act, the Telephone Consumer Protection Act, the Payment Card Industry Data Security Standards, and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the collection of debts, processing payments, and Client’s business (“Laws and Standards”). Client acknowledges that it has not retained SwervePay to provide guidance, advice, or counsel with respect to compliance with the Laws and Standards. Client takes full responsibility and assumes all risk and liability for Client’s own compliance with the Laws and Standards and Client’s use of the Offerings in compliance with the Laws and Standards. Client will reimburse SwervePay for any fines, legal expenses, reasonable attorneys’ fees, or out of out of pocket costs incurred by SwervePay because of Client’s failure to comply with these Laws and Standards. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation.
15. Proprietary Rights. SwervePay retains sole and exclusive ownership of all right, title and interest in the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides to Client under this Agreement. To the extent necessary to verify this ownership, Client agrees to and hereby does assign to SwervePay all copyrights, patent rights, title, and all other proprietary rights to the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides under this Agreement. Client shall not alter, modify, adapt, translate, copy, reverse engineer, decompile, disassemble, or create any derivative works of the Offerings. Client shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that are contained in the Offerings or any related information, documentation, or deliverables. Client shall not attempt to circumvent or circumvent any user limits, license keys, or other license, timing or use restriction built into the Offerings.
16. Confidentiality. The party receiving information (“Recipient”) from the other party (“Discloser”) shall treat Discloser’s information as confidential (“Confidential Information”) unless: (1) Recipient is able to demonstrate that the Confidential Information was known to Recipient prior to the disclosure; (2) Recipient is able to demonstrate the Confidential Information is part of the public domain; or (3) Recipient’s personnel, without knowledge of the Confidential Information, independently develops the information. Except as permitted under this Agreement, Recipient shall only use the Confidential Information to perform its obligations and shall not disclose or permit any third party to disclose any Confidential Information to any other person. Recipient shall not and shall not permit any third party to reproduce the Confidential Information or any portions thereof unless such reproductions are permitted by or are necessary for Recipient to perform its obligations under this Agreement. Recipient shall ensure that all reproductions of Discloser’s Confidential Information contain (if any) Discloser's proprietary or confidentiality notices in the same manner in which such notices were set forth in or on the original. Recipient will protect the Discloser's Confidential Information in the same manner that it employs to protect its own Confidential Information and in no event, will Recipient use less than reasonable efforts to protect the Discloser's Confidential Information from disclosure. Recipient may disclose the Confidential Information to its employees, subcontractors, advisors, or affiliates, who have been informed of the confidential nature of the Confidential Information and who have obligations of confidentiality that protect such types of information from disclosure to third parties. If Recipient is required by law or court order to disclose Discloser’s Confidential Information, Recipient may disclose the Confidential Information; subject to, where legally permitted, Recipient will: (1) provide Discloser prompt and advance written notice of the requirement; and (2) after providing the notice, reasonably assist Discloser, at Discloser's election and expense, in seeking to obtain an order protecting the information from further disclosure.
17. Use of Data. Client acknowledges that (a) SwervePay provides Offerings under this Agreement that will utilize the data provided by Client to allow Client to collect payment and generate communications with individuals, and to achieve other desired outcomes; and (b) SwervePay collects statistical, system, user experience and other data related to Client’s use of the Offerings for the purposes of: (1) monitoring and improving the functionality of the Offerings; (2) offering trending or statistical De-Identified Data to SwervePay’s user base; and (3) aggregating and using De-Identified Data for SwervePay’s own business purposes as described in any applicable privacy policy for the Offerings. “De-Identified Data” means data that does not identify Client and does not identify any individual or identify any entity. SwervePay shall only use De-Identified Data in a manner that complies with applicable laws. Client authorizes SwervePay to transmit and share data submitted by Client to SwervePay’s processor, applicable financial institutions, Card Organization(s), and/or any other person or entity to facilitate the provision of the Payment Processing Services.
18. SwervePay Warranties. SwervePay warrants that SwervePay uses reasonably qualified personnel to provide the services. Client's sole and exclusive remedy for a breach of this warranty is SwervePay re-performing of the applicable services at no additional cost to Client. SwervePay warrants that SwervePay complies with the applicable Operating Rules and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the processing of payments, and SwervePay’s business. Client acknowledges that Client is not relying upon any other representations, warranties, or promises that are not contained in this Agreement. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, SWERVEPAY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE OFFERINGS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE REGARDING MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. SWERVEPAY DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL MEET CLIENT'S REQUIREMENTS OR THAT THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
19. Sunsetting. SwervePay may cease providing any of the Offerings by providing Client with at least 12 months advance written notice that the applicable Offering is being sunset. After that 12 month period, SwervePay will have no further obligations related to the applicable Offering and will cease charging Client for any applicable Fees associated with the sunsetted offering.
20. Termination for Breach. If either party breaches this Agreement in any manner, the other party may terminate this Agreement by first providing the breaching party with written notice describing the breach in detail and allowing the breaching party 30 days after receipt of the notice to cure the breach. If the breaching party fails to cure, this Agreement will automatically terminate at the end of the 30-day cure period.
21. Effect of Termination. Within 90 days of termination or expiration of this Agreement, Recipient will destroy and purge from its computer systems the Discloser’s Confidential Information (including all copies, excerpts and summaries thereof), except to the extent such Confidential Information is stored pursuant to the Recipient’s standard back-up procedures or retained to meet Recipient’s legal or regulatory requirements or Recipient’s internal audit, document retention or internal compliance requirements. If the Discloser’s Confidential Information is retained as permitted in this Section, the Recipient will continue to abide by the confidentiality obligation of this Agreement until the Recipient ceases retaining such Confidential Information. Recipient shall destroy and purge such Confidential Information within the normal timeframe for deleting and purging such data. Client acknowledges that SwervePay retains transaction records as required by applicable law and the Operating Rules and that information is not considered Client’s Confidential Information. Upon request by the Discloser, the Recipient will certify in writing that the Recipient has complied with its obligations under this Section. Sections 6, Sections 14-16, the disclaimer in Section 18, Sections 21-24, Sections 29-32 of these Terms and Conditions and Section 17 of the attached Sub-Merchant Processing Payment Terms survive termination of this Agreement.
22. Indemnification. Each party shall indemnify and defend the other party, its affiliates, and its officers, directors, and employees, from and against any third party claims, losses, damages, liabilities, lawsuits, and expenses (including reasonable attorneys’ fees, court costs and other defense expenses) arising out of or resulting from: (a) the indemnifying party’s failure to comply with the Operating Rules; (b) the indemnifying party’s breach of any warranty or representation under this Agreement; and (c) a data security breach or unauthorized access or disclosure of Client data or Payer information arising out of any act or omission of the indemnifying party, its affiliates, or contractors. The indemnified party shall notify the indemnifying party of any claim that falls under this Section promptly after the indemnifying party learns of such claim; provided, however, that the indemnifying party will only be relieved of its obligations under this Section due to the failure of the indemnified party to provide such prompt notice to the extent that the failure materially prejudices the indemnifying party in defending such claim. The indemnifying party’s obligations under this Section are conditioned upon the indemnified party: (i) providing all reasonably requested information and cooperation to the indemnifying party; and (ii) giving the indemnifying party sole control of the defense or settlement of such claim, at the indemnifying party’s sole cost and expense; provided, however, that the indemnifying party may not settle any such claim in a manner that requires the indemnified party to admit fault or incur any direct expense without the consent of the indemnified party, which will not be unreasonably withheld or delayed. If the indemnifying party fails to timely undertake the defense of a claim under this Section, each of the indemnified parties may undertake the defense (including settlement) of such claim and the indemnifying party will reimburse the indemnified parties for all such costs.
23. Limitation of Liability. For any causes of action, claims, or assertions arising under or related to this Agreement or to the offerings (each a “Claim”), Swervepay’s liability in the aggregate to Client will not exceed THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO SWERVEPAY PURSUANT TO THIS AGREEMENT during the 6 months prior to the date the Claim is made, regardless of the form of action (whether based on contract, tort, negligence, strict liability, or otherwise). IN NO EVENT WILL SWERVEPAY BE LIABLE TO CLIENT FOR ANY LOST PROFITS OR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES OF ANY TYPE OR NATURE, EVEN IF SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT FEES OR CHARGES OF THE CARD ORGANIZATIONS OR OTHER THIRD PARTIES PASSED THROUGH TO CLIENT PURSUANT TO THIS AGREEMENT WILL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO SWERVEPAY WHEN DETERMINING SWERVEPAY’S LIABILITY UNDER THIS SECTION. CLIENT EXPRESSLY AGREES TO PAY ANY FEES OR ASSESSMENTS LEVIED BY ANY CARD ORGANIZATION AS A RESULT OF ANY ACTIVITY ASSOCIATED WITH CLIENT’S MERCHANT ACCOUNT, AND THAT SWERVEPAY IS NOT LIABLE FOR ANY SUCH FEES OR ASSESSMENTS UNDER ANY CIRCUMSTANCES. FURTHER, UNDER NO CIRCUMSTANCES WILL SWERVEPAY HAVE ANY LIABILITY TO CLIENT FOR PLACING CLIENT ON THE MATCH LIST BASED ON A GOOD FAITH, REASONABLE BELIEF BY SWERVEPAY THAT SUCH PLACEMENT WAS PROPER.
24. Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the state of Indiana in the United States without regard to conflict of law principles. All disputes arising out of or related to this Agreement will be exclusively brought and exclusively maintained in the State courts located in Delaware County, Indiana, or the United States District Court for the Southern District of Indiana, Indianapolis Division (or upon appeal, to the appellate courts of corresponding jurisdiction to such State or Federal court). Each party consents to and waives any objection to the exclusive personal jurisdiction and venue of such State and Federal courts.
25. Government Sales. This section applies to all acquisitions of the Offerings and documentation (collectively or individually for the purposes of this section, the “Government Acquired Products”) by or for the government of the United States of America or other government entity (the “Government”), or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the Government. By accepting delivery of the Government Acquired Products, Client hereby acknowledges that (a) the Offerings and documentation have been developed exclusively at private expenses, (b) the software based Offerings are commercial software and the documentation is commercial software documentation within the meaning of the acquisition regulation(s) applicable to this procurement, (c) the terms and conditions of this Agreement govern the all use and disclosure of the Government Acquired Products, and will supersede any conflicting contractual terms or conditions, and (d) this Agreement meets the Client’s needs or is consistent in all respect with United States law.
26. Force Majeure. Except for Client's payment obligations hereunder, a party will not be responsible for any failure to perform due to acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, strikes, or other causes beyond its reasonable control (each a "Force Majeure Event") provided that such party gives prompt written notice to the other party of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event. If the Force Majeure Event causes a delay of more than three months, either party may terminate an Order or this Agreement without penalty by providing written notice to the other party.
27. No Transfer or Assignment. Without obtaining SwervePay’s advance prior written consent, Client shall not assign, transfer, sublicense, subcontract, or otherwise delegate, in whole or in part any of Client’s rights, duties or obligations under this Agreement, including the right to receive settlement of funds pursuant to this Agreement. Any assignment, transfer, or delegation made by Client without complying with this Section is null and void and will permit SwervePay to terminate this Agreement immediately upon providing written notice to Client. Any, indirect or direct, change of ownership of Client is considered an assignment.
28. Export. Client shall not export or re-export the Offering without the prior written authorization of SwervePay and, as may be required under United States laws and regulations, the prior written authorization of the United States Department of Commerce or any other relevant Federal agency. SwervePay does not represent that the Offerings are appropriate or available for use in other countries. If Client obtains SwervePay’s authorization to export the Offerings, Client is solely responsible for compliance with all applicable laws, including export and import regulations of other countries.
29. Notices to Client. Client consents to do business electronically with SwervePay and receive electronic communications from SwervePay under this Agreement. SwervePay may provide Client notices, disclosures, or other information about the Offerings and Fees charged under this Agreement. Client agrees that SwervePay may provide this information and these notices by making them available on SwervePay’s website, through any mobile application in use by Client, or by sending Client an e-mail to Client’s email of record with SwervePay when Client signed up for any of the Offerings. Notices provided on the website or through a mobile application will be deemed given and received within 24 hours of posting and notices sent to Client’s email will be deemed given and received on the date of transmission. Alternatively, SwervePay may provide written notice by delivering the notice to Client at the most recent address that SwervePay has on file for such Client. Notices provided to Client’s most recent address will be deemed given and received at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if by a reputable overnight delivery service with tracking capabilities. Client may update the address of its principal office by providing notice to SwervePay.
30. Notices to SwervePay. All written notices to SwervePay under this Agreement need to be in writing and delivered to SwervePay at its principal office (currently, 1150 W. Kilgore Ave; Muncie, IN 47305) and to the attention of the “Legal Department”. The notice is deemed received by a party at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S. certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if sent by a reputable overnight delivery service with tracking capabilities. SwervePay may update the address of its principal office by providing notice to Client.
31. Amendments. SwervePay may updates these Terms and Conditions or the attached Sub-Merchant Payment Processing Terms at any time by providing Client with at least 90 days advance written notice. By continuing to use the Offerings after this 90 day period, Client will be deemed to have accepted the updated Terms and Conditions or updated Sub-Merchant Payment Processing Terms (“Updated Terms”). If Client does not agree to the Updated Terms, Client will prior to the expiration of the 90 day period, cease all use of the Offerings and notify SwervePay that Client is terminating this Agreement. If Client does not provide such notice within the 90 day period, Client’s right to terminate under this Section will expire. SwervePay may withdraw the Updated Terms within 30 days of when Client notifies SwervePay of Client’s desire to terminate this Agreement and have the Agreement continue under the unaltered Terms and Conditions or unaltered Sub-Merchant Payment Processing Terms. If SwervePay does not withdraw the Updated Terms, then this Agreement will terminate in accordance with Client’s notice.
32. General. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals, prior agreements, and other communications (oral or written) between the parties relating to the subject matter of this Agreement. A waiver by either party of or a party’s delay exercising its rights under this Agreement does not constitute a waiver of any other provision, breach, or default. If any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions will remain in effect. This Agreement inures to the benefit of and binds the parties, their permitted successors, heirs, and assigns. In all matters relating to this Agreement, Client and SwervePay will act as independent contractors. Neither party shall represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as an agent, employee, franchisee, or in any other capacity. Except as it relates to each of the party’s obligations under Section 22, the parties hereby agree that there are no third party beneficiaries under this Agreement.
Exhibit 1
Sub-Merchant Payment Processing Terms
1. Payment Facilitator Relationship. SwervePay is a Payment Facilitator. “Payment Facilitator” is defined by the Operating Rules and generally refers to a service provider that is registered with a processer to facilitate the processing of payment transactions on behalf of sub-merchants. As a Payment Facilitator, Client acknowledges that SwervePay is not a bank, that there is no fiduciary relationship between Client and SwervePay, and that SwervePay enters into agreements with other processors and banks to provide the Payment Processing Services.
2. Operating Rules. In using the Payment Processing Services, Client shall comply at all times with the Operating Rules. “Operating Rules” means (1) the by-laws, operating regulations and all other rules policies and procedures of MasterCard International, Inc. (“MasterCard”), VISA USA, Inc. (“Visa”), Discover, American Express, and other payment networks (“Card Organizations”); (2) the Payment Card Industry Data Security Standard; (3) the VISA Cardholder Information Security Program and Payment Application Best Practices; (4) the MasterCard Site Data Protection Program and POS Terminal Security Program; (5) American Express’s Data Security Operating Policy; (6) Discover’s Information Security & Compliance Program; and (7) any other program or requirement that may be published or mandated by MasterCard, Visa, Discover, American Express, or other payment networks/card associations.
3. Sub-Merchant Account. To use the Payment Processing Services Client shall work with SwervePay to set up and maintain one or more sub-merchant accounts by: (1) providing all required documentation and information, and (2) cooperating with SwervePay’s due diligence, Office of Foreign Asset Control related inquiries, and underwriting efforts. Client shall provide and maintain accurate and complete information with SwervePay to enable SwervePay to provide the sub-merchant accounts and the Payment Processing Services. Client authorizes SwervePay to share any such information with SwervePay’s processors, the sponsor bank, Client’s financial institutions, the Card Organizations, or to any other person or entity whose involvement is necessary to provide the Payment Processing Services. Client acknowledges that SwervePay will perform ongoing risk assessments related to Client’s sub-merchant accounts in accordance with the Operating Rules. Client authorizes SwervePay to request reports about Client from consumer reporting agencies, and Client shall cooperate to provide all documents requested by SwervePay to perform ongoing monitoring and analysis of Client’s financial condition. If any information is identified in these activities by SwervePay that either prevents SwervePay from being able to establish a sub-merchant account for Client or requires that SwervePay terminate Client’s existing sub-merchant account, SwervePay may immediately cease providing the Payment Processing Services, the other Offerings, and terminate this Agreement by providing notice to Client.
4. Client Warranties and Obligations. Client warrants that the individual entering into this Agreement on behalf of Client is at least 18 years of age and is authorized to enter into this Agreement. Client further warrants (a) it is either a legal resident of the United States, a United States citizen, or a legal business entity authorized to conduct business in one of the states in the United States; (b) the name identified by Client when Client completed the Enrollment Form is Client’s name under which Client operates and will obtain payment transactions; and (c) Client is in good standing, has all necessary licenses and permits to operate its business, and has all necessary right, power, and ability to comply with the terms of this Agreement. Client shall only use the Payment Processing Services within the United State. Client shall provide SwervePay with timely notification of any: (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; (iii) an adverse governmental or regulatory actions taken against Client; (iv) any change in the nature of Client’s products or services that makes the products or services materially different to what was previously represented to SwervePay; and (v) any other adverse changes that would interfere with Client’s ability to fulfill Client’s obligations under this Agreement. Client shall fulfill all obligations to Client’s customers related to any payment transaction and will be solely responsible for and resolve any dispute or complaint with a Payer.
5. Restrictions. Client shall:
b. not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (1) adult content; (2) airline or cruise line; (3) credit counseling or identity protection services; (4) sales to or from operations outside the United States of America and Canada; (5) distressed property sales and marketing; (6) gambling establishments or gambling; (7) card not present tobacco or pharmaceutical sales; (8) goods or services sold through rebate or upsell programs; (9) timeshare resales and related marketing of goods, services or properties; (10) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; or (11) buyer club activities or buyer club memberships.
c. not submit any transaction that: (1) adds any surcharge or other amount to the transaction as a condition of paying with a payment card, except to the extent authorized by the Operating Rules and applicable law; (2) adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately; (3) represents the refinancing or transfer of an existing Payer obligation that is deemed to be uncollectible or arises from the dishonor of a Payer’s personal check or from the acceptance of a Card at a terminal that dispenses scrip; (4) is not a valid transaction between the Client and a bona fide Payer; (5) Client knows or should have known to be fraudulent or not authorized by the Payer; (6) does not result from an act between Client and the Payer; or (7) required a valid authorization and it was not obtained.
d. not submit any refund transaction: (1) that does not correlate to an original sales transaction from the Payer; (2) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Payer for postage paid by the Payer to return merchandise in accordance with a policy applied consistently by Payer to all Client customers, (3) for returned products that were acquired in a cash purchase from Client; (4) that would cause an overdraft; or (5) more than three business days following either: (A) a regulatory requirement granting a Payer’s right to a refund; or (B) a non-disputed Payer request;
e. not transfer or attempt to transfer Client’s financial liability by asking or requiring Payer to waive their dispute rights; and
f. not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
6. Direct Processing Agreement. In accordance with the Operating Rules, SwervePay may need to have Client execute a direct agreement with SwervePay’s payment processor, in the form provided by SwervePay’s processor. Client will execute that direct agreement upon SwervePay’s request. If a direct agreement is deemed required and Client fails to enter into it upon request or the payment processor terminates the direct agreement at any time, SwervePay may cease providing the Offerings and terminate this Agreement by providing written notice to Client.
7. Deposit Account. As part of the Enrollment Form and for any subsequent account Client opens related to the Payment Processing Services, Client shall complete an Authorization for Direct Deposits form and for the duration of this Agreement, Client shall maintain one or more commercial checking account(s) to facilitate payment of payment transactions and automated clearing house network transfers between SwervePay and Client (“Deposit Account”). Client will notify SwervePay in writing any time there is a change in the Deposit Account information that will materially affect the ability of SwervePay to facilitate ACH transactions to Client’s Deposit Account. Client acknowledges that SwervePay is not responsible for any failure of Client to receive an ACH transfer that is caused by Client failing to maintain the Deposit Account or accurate Deposit Account information with SwervePay. Client shall maintain sufficient funds in the Deposit Account to accommodate the payment of any Fees, Chargeback liabilities, charges associated with the purchase of Terminals, or payment of any assessments from the Card Organizations.
8. Distribution of Funds to Client. Within one to two business days of a deposit of the funds from a payment by a Payer of an obligation due to Client into the Settlement Bank Account (“Funds”), SwervePay will have the Member Bank transmit via an ACH transfer to Client’s Deposit Account the Funds owed to Client provided that SwervePay receives a valid authorization code from the applicable Card Organization. Client further acknowledges that availability of the Funds for use by Client is subject to the control of the banking institutions and SwervePay is not responsible for any delay caused by the banking institutions. “Settlement Bank Account” means a bank or escrow account maintained by the Member Bank for receipt of payments made through the Payment Processing Services. “Member Bank” means a financial institution that provides credit card processing services for SwervePay under this Agreement. Each transaction will be considered complete when SwervePay has received the Funds and when such Funds have been accepted by Client’s designated bank or financial institution.
9. Chargebacks. A “Chargeback” occurs if a charge or transaction is reversed or returned for any reason to Client’s sub-merchant account by a Payer or card issuer. Client is solely responsible for the payment of all Chargebacks, and under no circumstances shall SwervePay be responsible for Chargebacks. Further, if a Chargeback occurs for any reason, Client will pay to SwervePay any administrative fees set forth in the Enrollment Form that reflects SwervePay’s involvement in the Chargeback resolution process. For any Chargeback, Client will also pay all credit card, debit card, bank, and ACH transaction fees, fines or penalties and refund all Funds transferred to Client’s Deposit Account corresponding to the Chargeback amount. Client will be notified of the Chargeback and of the amount due. If Client has a reason to dispute the Chargeback, Client has to dispute the Chargeback based on the date provided in the Chargeback notice. SwervePay has no independent obligation to investigate, dispute, or attempt to obtain reversal or adjustment of any Chargeback. SwervePay may deduct, and Client authorizes SwervePay to deduct, the amount of any Chargeback and any associated fees, fines, or penalties assessed by each processor and bank from: (a) Client’s sub-merchant account, (b) Client’s Reserve Account (if applicable), (c) Client’s Deposit Account; or (d) any amounts due to Client. If Client is incurring an excessive number of Chargebacks, SwervePay may increase the Fees, may hold back settlement of funds, establish or increase the fund requirements for a Reserve Account, or terminate this Agreement by providing written notice to Client. Client is responsible for monitoring Client’s monthly Chargeback percentage and developing Chargeback reduction programs as required by the Card Organizations.
10. Correcting Payment Errors. Client authorizes SwervePay, SwervePay’s processor, or Member Bank to debit the Deposit Account or Reserve Account for any misdirected deposits, duplicate deposit, or inadvertent overpayments into Client’s Deposit Account. This debit authorization survives the termination of this Agreement until SwervePay validates that there are no Incorrect Deposits that need to be addressed.
11. Statements and Client Review. SwervePay shall make available to Client statements and transaction reports reflecting Client’s sub-merchant account activity (“Statements”). Client acknowledges that Client has 90 days from when the Statements are made available to Client to review the Statements for accuracy. Subject to Client providing SwervePay with written notice of any dispute or discrepancy related to the Statement within that 90 day period, Client may reasonably dispute a Statement. Upon receipt of the dispute by SwervePay, SwervePay will review the disputed Statement and the parties will work together in good faith to resolve the dispute. If it is determined that SwervePay owes any additional amounts to Client, SwervePay will disperse that amount in accordance with Section 8 of this Exhibit. Client agrees that SwervePay will not be liable to Client or have any obligation to resolve any discrepancy in any Statement that Client does not dispute in accordance with this Section. Client’s failure to follow the dispute resolution procedures in this Section shall result in all such disputes being waived by Client.
12. Reserve Account. Upon notice to Client, SwervePay may elect or be required by SwervePay’s payment processor to establish a non-segregated account at a financial institution to ensure payment of all of Client’s payment or Fee obligations under this Agreement (“Reserve Account”). Client hereby permits SwervePay to fund the Reserve Account through (a) debiting the Deposit Account; (b) withholding Funds and depositing those funds in the Reserve Account; or (c) invoice Client and Client will pay such invoice within 30 days of the date of the invoice. SwervePay may continue to hold the Reserve Account with any amounts in it for up to one year after the termination of this Agreement. Client acknowledges that Client will not receive any interest on the amounts in the Reserve Account and has no right to access the amounts in the Reserve Account until SwervePay closes the Reserve Account and provides all amounts (if any) in the Reserve Account to Client. SwervePay will close the Reserve Account and release any amounts to Client once Client satisfies all payment obligations under this Agreement. The funds in the Reserve Account will be deemed to be the exclusive property of SwervePay, and not the merchant, while SwervePay holds such funds. Without in any way limiting the foregoing, and merely as an additional form of security, Client hereby further grants SwervePay a security interest in the Reserve Funds to the full extent necessary to satisfy any of Client’s obligations to SwervePay. SwervePay may enforce its security interest with or without notice or demand. The security interest(s) granted under this section will continue after termination of this Agreement until Client satisfies all its obligations to SwervePay. Client further agrees to execute and deliver to SwervePay such instruments and documents as SwervePay may reasonably request to confirm and perfect the security interest(s) granted by this Agreement.
13. Investigations and Sharing of Information. If SwervePay reasonably believes that a transaction is in violation of this Agreement, is illegal or otherwise may cause harm to SwervePay, Client, a Payer, or SwervePay’s processor, SwervePay may choose not to authorize, process, or settle the transaction. If SwervePay discovers any such transaction or any other unusual or unexpected transaction activity on Client’s sub-merchant account, Client authorizes SwervePay to hold Funds while SwervePay conducts an investigation into the transaction activity. As part of such investigation and upon SwervePay’s request, Client will provide all documentation requested to support or otherwise validate any transaction being investigated. As part of any SwervePay investigation or if required by law, court order, or a request from law enforcement or a governmental entity, SwervePay may withhold and defer the distribution to Client of any Funds until such investigation concludes, or such legal or governmental requirement no longer applies. If SwervePay reasonably believes that the Payment Processing Services have been used for an illegal, unauthorized or criminal purpose, Client expressly authorizes SwervePay to share information about Client, Client’s sub-merchant account, or Client’s transactions with Client’s banks, Client’s financial institutions, SwervePay’s processor, the Card Organizations, SwervePay’s advisors, and with law enforcement and governmental entities. If SwervePay reasonably believes in good faith that that Client needs to be reported under the Operating Rules, Client acknowledges that SwervePay may report Client to the MATCH list (Member Alert to Control High-Risk), the Card Organizations, any applicable governmental agency or law enforcement agency.
14. Honoring Cards. Client has the responsibility to validate the identity of the Payer and the Payer’s payment card information. If Client determines a payment card is expired or that the account number is listed on a current Electronic Warning Bulletin file or the account number does not match the card’s magnetic strip or chip, Client will not honor the payment card or the transaction. Client shall ensure that the Payer understands Client is responsible for the transaction and all the details related to the charges that will be processed on Payer’s payment card. Client shall maintain return and refund policies that comply with the Operating Rules and disclose to Payers any refund or return policies Client has. Unless a Payer expressly declines a written receipt, Client shall make a receipt available to a Payer for any transaction, whether in writing or via electronic means. Notwithstanding Client’s obligations herein SwervePay shall have the right, in its sole discretion, to decline to process any transaction that it believes is improper, fraudulent, unlawful, or otherwise in violation of any Laws and Regulations.
15. Client’s Security Obligations. Client shall keep all payment card, account information and personal information of a Payer (“Payer Information”) confidential and not disclose such information to a third party except as permitted under the Laws and Standards. Client shall keep Payer Information in a secure manner to prevent disclosure to unauthorized parties and in a manner that complies with all the Laws and Standards. Upon SwervePay’s request, Client will provide proof to SwervePay of Client’s compliance with the Laws and Standards. Client will only use the Payer Information for obtaining payment and not use or disclose the Payer Information for marketing purposes or any other unauthorized use without express consent of the Payer. Client shall immediately notify SwervePay if: (a) Client has reason to believe that Client’s sub-merchant account is no longer secure or being used for unauthorized purposes; or (b) Client discovers or has reason to suspect that a data breach has occurred. In any such event, Client will fully cooperate, at its expense, with all remediation efforts, forensic examination, and mitigation procedures required under the Laws and Standards or reasonably requested by SwervePay, the Card Organizations, SwervePay’s processor, and any of the parties’ banks or financial institutions. Client acknowledges that any failure to comply with the Laws and Standards or the occurrence of any data breach suffered by Client may result in Client being assessed penalties or fines by the Card Organization and Client shall pay those penalties and fines.
16. Third Parties. To the extent Client uses any third party to process, store, receive, transmit, or otherwise have access to Payer Information, Client assumes full responsibility and liability for such third party’s compliance with this Agreement and the Laws and Standards. SwervePay is not liable for the acts or omissions of such third parties. Client further agrees to notify SwervePay of the identity of all such third parties if those third parties relate to the Payment Processing Services and to ensure that such third parties are properly registered, if required to be so, with the Card Organizations. SwervePay may require any such third parties to undergo testing, approval, and certification by SwervePay or SwervePay’s bank or processer. SwervePay may, at any time, also terminate such third parties’ access to or ability to integrate with SwervePay. For the sake of clarity, SwervePay’s affiliates or subcontractors are not considered a third party under this Section.
17. Termination and Suspension Rights. In addition to the termination rights set forth in the Terms and Conditions, SwervePay may suspend providing the Payment Processing Services to Client upon providing notice to Client, if Client: (a) has violated these Sub-Merchant Payment Processing Terms or any of the Laws and Standards; (b) poses an unacceptable credit or fraud risk, as determined by SwervePay, SwervePay’s processor, or the Card Organizations; (c) becomes subject to any investigation or enforcement action by law enforcement or a governmental entity; (d) falls outside of SwervePay’s credit policies; (e) provides any false, incomplete, inaccurate, or misleading information or otherwise engages in fraudulent or illegal conduct; or (f) becomes part of the MATCH list or Terminated Client File maintained by MasterCard. If SwervePay suspends providing the Payment Processing Services for any of the foregoing reasons and the circumstances do not change after 30 days, SwervePay may terminate this Agreement by providing written notice to Client. Upon suspension of the Payment Processing Services or termination of this Agreement for any reason, (i) all pending transactions will be cancelled; (ii) Client shall pay all Fees and any other amounts owed to SwervePay that were accrued prior to the termination; and (iii) Client will remain liable for any and all Chargebacks, credits, adjustments, penalties, fines, costs, and all other amounts that become due prior to or after the suspension or termination. As part of the suspension or termination of the Agreement, SwervePay may establish and maintain a Reserve Account in accordance with Section 14 of this Exhibit. If Client is subject to an investigation or enforcement action at the time Client seeks to close a Client sub-merchant account, SwervePay may retain the Funds in the sub-merchant account or a Reserve Account until the investigation or action is completed.
18. Provisions Specific to American Express. If Client is accepting American Express card payments, Client agrees to the following in connection with its acceptance of American Express cards:
a) Any request to accept American Express cards is subject to approval by American Express. If approved, Client authorizes SwervePay to submit American Express card transactions to American Express. Client also agrees to accept settlement from American Express.
b) The American Express Merchant Operating Guide is incorporated into this Agreement by reference and available at the following link: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf. Client’s acceptance of American Express cards must be in accordance with American Express’s Merchant Operating Guide and any other rules promulgated by American Express, as amended from time to time.
c) Client may opt out of receiving commercial marketing materials from American Express without affecting Client’s ability to accept American Express cards or to receive important transactional or relationship messages from American Express.
d) Client agrees that American Express may use information obtained from Client to screen or monitor Client in connection with American Express card marketing and administrative purposes. In addition, American Express may use data obtained from Client to perform American Express’s responsibilities with the American Express OptBlue Program, to promote the American Express network, to perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes, and important transactional or relationship messages.
e) Client agrees that it may be converted from American Express Card acceptance pursuant to this Agreement to a direct American Express Card acceptance relationship with American Express if and when it becomes a High CV Merchant. “High CV Merchant” means a merchant with either (1) greater than $1 million in American Express Card Transaction volume (including volume from all Merchant locations) in a rolling 12 month period; or (2) greater than $100,000 in American Express Card Transaction volume (including all volume from all merchant locations) in any three consecutive months. Client will be notified if such a conversion is required and upon such conversion, Client will be bound by American Express’s then-current Card Acceptance Agreement and Client agrees that American Express will set pricing and other fees payable by Merchant for American Express Card acceptance.
f) Upon termination of this Agreement or of Client’s ability to accept American Express Cards hereunder, Client agrees to remove American Express identifying marks from Client’s website and wherever else they Client displays them.
g) Client agrees to have a refund policy for transactions on American Express cards that is at least as favorable as the refund policy or transactions on other card types.
h) Client acknowledges that it may opt out of accepting American Express cards at any time without affecting its right to accept other payment cards.
i) American Express is a third party beneficiary to this Agreement with respect to the rights in this Agreement, but not the obligations and will be able to enforce the terms of this Agreement against the Client as it relates to Client’s accepting of American Express card payments.
Client: {{{Customer_Legal_Name}}} | |
By: {{{tfa_236}}} | |
Its: {{{Business_Title}}} | |
Date of Execution: {{{Todays_Date}}} | |
Address: {{{Customer_Street_Address}}} {{{Customer_City}}} {{{Customer_ZipCode}}} {{{Business_State}}} | |
Email: {{{Customer_Signor_Email}}} |
Effective October 6, 2021 to October 6, 2021
DownloadTable of Contents
SwervePay Offerings Terms and Conditions (Last Updated December 1, 2020)
Please read the following carefully because these SwervePay Offerings Terms and Conditions (“Terms and Conditions”) govern your and your business’s use of the Offerings provided by SwervePay, LLC. By enrolling to use and using the Offerings you are accepting these Terms and Conditions on behalf of your business and acknowledge that this is a legal agreement between your business and SwervePay, LLC, a Delaware Limited Liability Company, with offices at 1150 W. Kilgore Ave., Muncie IN 47305 (“SwervePay”).
If you do not agree with these Terms and Conditions and the Sub-Merchant Payment Processing Terms, attached hereto as Exhibit 1, in their entirety, you and your business cannot enroll to use and cannot actually use any of the Offerings. Your use of any of the Offerings will constitute your agreement to these Terms and Conditions even if you do not physically sign this agreement.
1. Client. “Client” means the business that has enrolled to use and will use the Offerings (as defined in Section 5).
2. Enrollment. “Enrollment Form” means the enrollment form completed by Client to use the Offerings and any applicable attachments to the Enrollment Form referenced therein. To use any of the Offerings, Client will need to complete the applicable Enrollment Form and as part of the enrollment process, indicate Client’s agreement to these Terms and Conditions. The Enrollment Form sets forth the fees for the Offerings. If there is any conflict between the Enrollment Form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Terms, these Terms and Conditions will prevail. The enrollment form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Term, form the agreement between the parties (“Agreement”).
3. Effective Date and Term. The date Client accepts these Terms and Conditions by submitting an Enrollment Form is the effective date of the Agreement (“Effective Date”). The Enrollment Form will specify the duration of the initial term of the Agreement from the Effective Date (“Initial Term”). Thereafter, the term of the Agreement will automatically renew for successive one year periods (each a “Renewal Term”), unless a party provides the other party written notice of termination at least 30 days prior to the renewal date. In which case, this Agreement will automatically terminate at the end of the then current Term. “Term” means the Initial Term and any Renewal Term(s).
4. Payment Processing Services. Upon enrollment and approval by SwervePay in accordance with this Agreement, SwervePay shall provide Client with payment processing services that enable Client to accept payments via payment cards, automated clearing house transactions (“ACH”), and other approved electronic payment transactions into Client’s bank account through electronic means (“Payment Processing Services”). SwervePay will provide and Client will use the Payment Processing Services in accordance with the attached Sub-Merchant Payment Processing Terms. However, for card transactions with cards issued by American Express, Discover, or any other closed loop Card Organization, SwervePay shall provide authorization services only, and shall not have any responsibility for the settlement to client of the funds associated with such card transactions. Instead, Client authorizes settlement of transactions to be made directly by American Express, Discover, or other closed loop Card Organization(s).
5. Offerings and Right to Use To the extent SwervePay makes available to Client and Client elects to use any of the following, SwervePay will permit Client to use (a) communication tools, such as texting, e-mail, chatbots, or other electronic means for Client to communicate with Payers (“Communication Tools”); (b) web-based point of sale system (“Point of Sale Tool”); and (c) payment portals made available over the internet for the purposes of Client to collect payments from Payers (“Portals”). “Payer” means any individual or entity making a payment to Client using payment cards, ACH, or other approved electronic payment transactions. “Offerings” means the Payment Processing Services, Communication Tools, Point of Sale Tool, and Portals to the extent Client is using any of the forgoing. Subject to Client paying all necessary Fees and complying with all the other terms of this Agreement, SwervePay grants Client a non-exclusive and non-transferable subscription right for Client to use the Offerings for the Term.
6. Fees and Taxes. Client shall pay SwervePay the fees for the Offerings as set forth in the Enrollment Form (“Fees”). SwervePay may modify, increase, add different, or otherwise change the Fees by providing Client 30 days’ advance written notice provided in accordance with Section 29. Client’s continued use of the Offerings will indicate Client’s consent to the change in Fees. If Client does not agree to the change in Fees, Client will need to notify SwervePay in writing of the objection and cease all use of the Offerings. Client acknowledges that the Fees do not include any taxes. Client shall collect, report, and remit any taxes required to be collected, paid, or withheld in connection with the Offerings and Terminals. Taxes are Client’s sole responsibility. SwervePay is not responsible for determining whether or not taxes apply or for calculating, collecting, reporting, or remitting any taxes on Client’s behalf. If a tax authority seeks collection from SwervePay of any taxes in connection with this Agreement, then Client shall reimburse SwervePay upon receipt of notice from SwervePay that SwervePay has paid such tax. SwervePay and its process may make available any reports required by law regarding Client to the Internal Revenue Service or any other Federal or state taxing authority.
7. Terminals. SwervePay may permit Client to purchase point of sale payment card processing terminals (“Terminals”). Upon Client delivering payment for the purchase of the Terminals, Client shall own the Terminals. Client acknowledges that the Terminals are manufactured by third parties and are only provided for Client’s convenience. SwervePay provides all Terminals on “AS IS” basis and without any warranty of any kind. Client assumes all responsibility and liability for its use and the security of the Terminals. SwervePay disclaims all liability related to any defects or vulnerability in the Terminals, any third party hacking or otherwise gaining unauthorized access to the Terminals, or any use of the Terminals by Client.
8. Communication Tools. To the extent Client utilizes the Communication Tools, Client shall obtain all necessary consents from the Payers to use the Communication Tools to communicate with the Payer. Client shall comply with any applicable legal obligation, carrier requirements, or industry standards related to communicating with Payers using the Communication Tools. Client shall make public terms and conditions related to Client’s use of the Communication Tools to communicate with the Payer and have each Payer agree to those terms and conditions. To the extent Client uses any Communication Tool that requires the use of a telephone carrier or wireless services provider, Client acknowledges that the applicable messages and associated data will be transmitted through such carriers and providers. Client authorizes SwervePay to disclose all requested information to the carriers and providers to allow Client’s use of the applicable Communication Tools. Client also acknowledges that some of the Communication Tools may require the uploading and transmitting of data and information over the Internet.
9. Implementation. The parties shall cooperate with one another to set up and enable Client’s use of the Offerings. Client acknowledges that the implementation of the Offerings will not begin until SwervePay assigns resources to begin the project. Client shall provide SwervePay with all access to any data, systems and information reasonably required to implement the Offerings. SwervePay will provide all implementation services on a remote basis between the hours of 8 am and 5 pm based on the location of the resources performing the implementation services. Client shall provide at least one qualified Client representative to receive training on the Offerings.
10. Support and Maintenance. After making the Offerings available for Client’s use in a production environment (“Go Live Date”), the parties will cooperate with one another in the administration of the Offerings. Client may contact SwervePay through SwervePay’s designated support communication channels to obtain general support by logging a support ticket. SwervePay will seek to make any Intrusive Changes only during its standard or scheduled maintenance windows. As used in this Section, “Intrusive Changes” means maintenance that will render the Offerings unavailable and “Non-Intrusive Changes” means maintenance that is not intended to make any of the Offerings unavailable. Client acknowledges that SwervePay performs Non-Intrusive Changes as needed.
11. SaaS Offerings. For Offerings either hosted or provided as a software as a service (“SaaS Offerings”), SwervePay may utilize one or more third-party hosting providers to provide the SaaS Offerings and may change hosting providers by providing Client 30 days advance written notice. SwervePay uses reasonable efforts to make any of the SaaS Offerings available. Client acknowledges that SwervePay may make any of the SaaS Offerings unavailable during Scheduled Downtime and for Emergency Maintenance. “Scheduled Downtime” means time required to perform backup, maintenance and restore any of the SaaS Offerings that occurs during SwervePay’s standard maintenance window or during any additional downtime that is scheduled in advance by SwervePay. "Emergency Maintenance" means any corrective action intended to address hardware or software failures, viruses, malware, worms, other disabling code, or other conditions likely to cause degradation, security risks, or interruption, as designated by SwervePay in its reasonable discretion, with or without notice to Client. In using the SaaS Offerings, Client shall not: (a) forge authentication credentials, use the authentication credentials of another user or disclose Client’s authentication credentials to any third party; (b) damage, bypass, break, or otherwise circumvent any of SwervePay’s security mechanisms; (c) use the SaaS Offerings: (i) to attempt to breach, circumvent or hack a third party, (ii) to transmit viruses, malicious, harmful, or deleterious programs or code, (iii) to launch or facilitate a denial of service attack; or (iv) in a manner that otherwise poses a security threat; (d) probe, scan, or test the vulnerability of the SaaS Offerings or monitor data or traffic of the SaaS Offerings without permission from SwervePay; (e) reverse-engineer the SaaS Offerings in order to find limitation, vulnerability or to evade, disable, or render inaccurate accounting billing, capacity limitations, or other functions of the SaaS Offerings; (f) use the SaaS Offerings to encourage, facilitate, engage, or in connection with abuse, harassment, discrimination, fraudulent activities, deceptive practices or other unlawful activities, or harmful or malicious acts; or (g) use the SaaS Offerings in a manner that would violate the Truth in Caller ID Act, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, the Do-Not Call Implementation Act, or any other local, state, federal, or foreign law or regulation. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation, and may terminate this agreement if Client does not cure.
12. Connections. To enable Client’s use of the Offerings, Client shall establish and maintain any necessary connections that meet SwervePay’s standards between Client’s network or systems and the Offerings. Client shall pay all costs related to setting up these connections. Client is responsible for making sure all such equipment functions appropriately and Client shall replace that equipment as needed.
13. Accuracy of Client Data. Client acknowledges that Client is responsible for the accuracy and integrity of the information Client provides through Client’s use of the Offerings and the setting up maintaining of any accounts to use the Offerings. Client is also responsible for adopting procedures to identify and correct errors and omissions in such provided information. Client shall maintain the security of any account user names, passwords and any other login information Client uses to access and use the Offerings and shall promptly notify SwervePay if Client becomes aware of any unauthorized disclosure or use of Client’s account information. Client acknowledges that SwervePay does not review any of Client’s data or information for accuracy, validity, or compliance and SwervePay is not responsible for errors caused by insufficient or inaccurate data. Client shall monitor the contents of any messages being sent through the Offerings.
14. Client’s Compliance with Laws and Standards. Client shall comply with and use the Offerings in a manner that complies with the Operating Rules (as defined in Exhibit 1), the Health Insurance Portability and Accountability Act, the Hi-Tech Act, the Fair Debt Collection Practices Act, the Electronic Funds Transfer Act, the Telephone Consumer Protection Act, the Payment Card Industry Data Security Standards, and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the collection of debts, processing payments, and Client’s business (“Laws and Standards”). Client acknowledges that it has not retained SwervePay to provide guidance, advice, or counsel with respect to compliance with the Laws and Standards. Client takes full responsibility and assumes all risk and liability for Client’s own compliance with the Laws and Standards and Client’s use of the Offerings in compliance with the Laws and Standards. Client will reimburse SwervePay for any fines, legal expenses, reasonable attorneys’ fees, or out of out of pocket costs incurred by SwervePay because of Client’s failure to comply with these Laws and Standards. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation.
15. Proprietary Rights. SwervePay retains sole and exclusive ownership of all right, title and interest in the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides to Client under this Agreement. To the extent necessary to verify this ownership, Client agrees to and hereby does assign to SwervePay all copyrights, patent rights, title, and all other proprietary rights to the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides under this Agreement. Client shall not alter, modify, adapt, translate, copy, reverse engineer, decompile, disassemble, or create any derivative works of the Offerings. Client shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that are contained in the Offerings or any related information, documentation, or deliverables. Client shall not attempt to circumvent or circumvent any user limits, license keys, or other license, timing or use restriction built into the Offerings.
16. Confidentiality. The party receiving information (“Recipient”) from the other party (“Discloser”) shall treat Discloser’s information as confidential (“Confidential Information”) unless: (1) Recipient is able to demonstrate that the Confidential Information was known to Recipient prior to the disclosure; (2) Recipient is able to demonstrate the Confidential Information is part of the public domain; or (3) Recipient’s personnel, without knowledge of the Confidential Information, independently develops the information. Except as permitted under this Agreement, Recipient shall only use the Confidential Information to perform its obligations and shall not disclose or permit any third party to disclose any Confidential Information to any other person. Recipient shall not and shall not permit any third party to reproduce the Confidential Information or any portions thereof unless such reproductions are permitted by or are necessary for Recipient to perform its obligations under this Agreement. Recipient shall ensure that all reproductions of Discloser’s Confidential Information contain (if any) Discloser's proprietary or confidentiality notices in the same manner in which such notices were set forth in or on the original. Recipient will protect the Discloser's Confidential Information in the same manner that it employs to protect its own Confidential Information and in no event, will Recipient use less than reasonable efforts to protect the Discloser's Confidential Information from disclosure. Recipient may disclose the Confidential Information to its employees, subcontractors, advisors, or affiliates, who have been informed of the confidential nature of the Confidential Information and who have obligations of confidentiality that protect such types of information from disclosure to third parties. If Recipient is required by law or court order to disclose Discloser’s Confidential Information, Recipient may disclose the Confidential Information; subject to, where legally permitted, Recipient will: (1) provide Discloser prompt and advance written notice of the requirement; and (2) after providing the notice, reasonably assist Discloser, at Discloser's election and expense, in seeking to obtain an order protecting the information from further disclosure.
17. Use of Data. Client acknowledges that (a) SwervePay provides Offerings under this Agreement that will utilize the data provided by Client to allow Client to collect payment and generate communications with individuals, and to achieve other desired outcomes; and (b) SwervePay collects statistical, system, user experience and other data related to Client’s use of the Offerings for the purposes of: (1) monitoring and improving the functionality of the Offerings; (2) offering trending or statistical De-Identified Data to SwervePay’s user base; and (3) aggregating and using De-Identified Data for SwervePay’s own business purposes as described in any applicable privacy policy for the Offerings. “De-Identified Data” means data that does not identify Client and does not identify any individual or identify any entity. SwervePay shall only use De-Identified Data in a manner that complies with applicable laws. Client authorizes SwervePay to transmit and share data submitted by Client to SwervePay’s processor, applicable financial institutions, Card Organization(s), and/or any other person or entity to facilitate the provision of the Payment Processing Services.
18. SwervePay Warranties. SwervePay warrants that SwervePay uses reasonably qualified personnel to provide the services. Client's sole and exclusive remedy for a breach of this warranty is SwervePay re-performing of the applicable services at no additional cost to Client. SwervePay warrants that SwervePay complies with the applicable Operating Rules and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the processing of payments, and SwervePay’s business. Client acknowledges that Client is not relying upon any other representations, warranties, or promises that are not contained in this Agreement. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, SWERVEPAY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE OFFERINGS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE REGARDING MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. SWERVEPAY DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL MEET CLIENT'S REQUIREMENTS OR THAT THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
19. Sunsetting. SwervePay may cease providing any of the Offerings by providing Client with at least 12 months advance written notice that the applicable Offering is being sunset. After that 12 month period, SwervePay will have no further obligations related to the applicable Offering and will cease charging Client for any applicable Fees associated with the sunsetted offering.
20. Termination for Breach. If either party breaches this Agreement in any manner, the other party may terminate this Agreement by first providing the breaching party with written notice describing the breach in detail and allowing the breaching party 30 days after receipt of the notice to cure the breach. If the breaching party fails to cure, this Agreement will automatically terminate at the end of the 30-day cure period.
21. Effect of Termination. Within 90 days of termination or expiration of this Agreement, Recipient will destroy and purge from its computer systems the Discloser’s Confidential Information (including all copies, excerpts and summaries thereof), except to the extent such Confidential Information is stored pursuant to the Recipient’s standard back-up procedures or retained to meet Recipient’s legal or regulatory requirements or Recipient’s internal audit, document retention or internal compliance requirements. If the Discloser’s Confidential Information is retained as permitted in this Section, the Recipient will continue to abide by the confidentiality obligation of this Agreement until the Recipient ceases retaining such Confidential Information. Recipient shall destroy and purge such Confidential Information within the normal timeframe for deleting and purging such data. Client acknowledges that SwervePay retains transaction records as required by applicable law and the Operating Rules and that information is not considered Client’s Confidential Information. Upon request by the Discloser, the Recipient will certify in writing that the Recipient has complied with its obligations under this Section. Sections 6, Sections 14-16, the disclaimer in Section 18, Sections 21-24, Sections 29-32 of these Terms and Conditions and Section 17 of the attached Sub-Merchant Processing Payment Terms survive termination of this Agreement.
22. Indemnification. Each party shall indemnify and defend the other party, its affiliates, and its officers, directors, and employees, from and against any third party claims, losses, damages, liabilities, lawsuits, and expenses (including reasonable attorneys’ fees, court costs and other defense expenses) arising out of or resulting from: (a) the indemnifying party’s failure to comply with the Operating Rules; (b) the indemnifying party’s breach of any warranty or representation under this Agreement; and (c) a data security breach or unauthorized access or disclosure of Client data or Payer information arising out of any act or omission of the indemnifying party, its affiliates, or contractors. The indemnified party shall notify the indemnifying party of any claim that falls under this Section promptly after the indemnifying party learns of such claim; provided, however, that the indemnifying party will only be relieved of its obligations under this Section due to the failure of the indemnified party to provide such prompt notice to the extent that the failure materially prejudices the indemnifying party in defending such claim. The indemnifying party’s obligations under this Section are conditioned upon the indemnified party: (i) providing all reasonably requested information and cooperation to the indemnifying party; and (ii) giving the indemnifying party sole control of the defense or settlement of such claim, at the indemnifying party’s sole cost and expense; provided, however, that the indemnifying party may not settle any such claim in a manner that requires the indemnified party to admit fault or incur any direct expense without the consent of the indemnified party, which will not be unreasonably withheld or delayed. If the indemnifying party fails to timely undertake the defense of a claim under this Section, each of the indemnified parties may undertake the defense (including settlement) of such claim and the indemnifying party will reimburse the indemnified parties for all such costs.
23. Limitation of Liability. For any causes of action, claims, or assertions arising under or related to this Agreement or to the offerings (each a “Claim”), Swervepay’s liability in the aggregate to Client will not exceed THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO SWERVEPAY PURSUANT TO THIS AGREEMENT during the 6 months prior to the date the Claim is made, regardless of the form of action (whether based on contract, tort, negligence, strict liability, or otherwise). IN NO EVENT WILL SWERVEPAY BE LIABLE TO CLIENT FOR ANY LOST PROFITS OR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES OF ANY TYPE OR NATURE, EVEN IF SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT FEES OR CHARGES OF THE CARD ORGANIZATIONS OR OTHER THIRD PARTIES PASSED THROUGH TO CLIENT PURSUANT TO THIS AGREEMENT WILL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO SWERVEPAY WHEN DETERMINING SWERVEPAY’S LIABILITY UNDER THIS SECTION. CLIENT EXPRESSLY AGREES TO PAY ANY FEES OR ASSESSMENTS LEVIED BY ANY CARD ORGANIZATION AS A RESULT OF ANY ACTIVITY ASSOCIATED WITH CLIENT’S MERCHANT ACCOUNT, AND THAT SWERVEPAY IS NOT LIABLE FOR ANY SUCH FEES OR ASSESSMENTS UNDER ANY CIRCUMSTANCES. FURTHER, UNDER NO CIRCUMSTANCES WILL SWERVEPAY HAVE ANY LIABILITY TO CLIENT FOR PLACING CLIENT ON THE MATCH LIST BASED ON A GOOD FAITH, REASONABLE BELIEF BY SWERVEPAY THAT SUCH PLACEMENT WAS PROPER.
24. Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the state of Indiana in the United States without regard to conflict of law principles. All disputes arising out of or related to this Agreement will be exclusively brought and exclusively maintained in the State courts located in Delaware County, Indiana, or the United States District Court for the Southern District of Indiana, Indianapolis Division (or upon appeal, to the appellate courts of corresponding jurisdiction to such State or Federal court). Each party consents to and waives any objection to the exclusive personal jurisdiction and venue of such State and Federal courts.
25. Government Sales. This section applies to all acquisitions of the Offerings and documentation (collectively or individually for the purposes of this section, the “Government Acquired Products”) by or for the government of the United States of America or other government entity (the “Government”), or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the Government. By accepting delivery of the Government Acquired Products, Client hereby acknowledges that (a) the Offerings and documentation have been developed exclusively at private expenses, (b) the software based Offerings are commercial software and the documentation is commercial software documentation within the meaning of the acquisition regulation(s) applicable to this procurement, (c) the terms and conditions of this Agreement govern the all use and disclosure of the Government Acquired Products, and will supersede any conflicting contractual terms or conditions, and (d) this Agreement meets the Client’s needs or is consistent in all respect with United States law.
26. Force Majeure. Except for Client's payment obligations hereunder, a party will not be responsible for any failure to perform due to acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, strikes, or other causes beyond its reasonable control (each a "Force Majeure Event") provided that such party gives prompt written notice to the other party of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event. If the Force Majeure Event causes a delay of more than three months, either party may terminate an Order or this Agreement without penalty by providing written notice to the other party.
27. No Transfer or Assignment. Without obtaining SwervePay’s advance prior written consent, Client shall not assign, transfer, sublicense, subcontract, or otherwise delegate, in whole or in part any of Client’s rights, duties or obligations under this Agreement, including the right to receive settlement of funds pursuant to this Agreement. Any assignment, transfer, or delegation made by Client without complying with this Section is null and void and will permit SwervePay to terminate this Agreement immediately upon providing written notice to Client. Any, indirect or direct, change of ownership of Client is considered an assignment.
28. Export. Client shall not export or re-export the Offering without the prior written authorization of SwervePay and, as may be required under United States laws and regulations, the prior written authorization of the United States Department of Commerce or any other relevant Federal agency. SwervePay does not represent that the Offerings are appropriate or available for use in other countries. If Client obtains SwervePay’s authorization to export the Offerings, Client is solely responsible for compliance with all applicable laws, including export and import regulations of other countries.
29. Notices to Client. Client consents to do business electronically with SwervePay and receive electronic communications from SwervePay under this Agreement. SwervePay may provide Client notices, disclosures, or other information about the Offerings and Fees charged under this Agreement. Client agrees that SwervePay may provide this information and these notices by making them available on SwervePay’s website, through any mobile application in use by Client, or by sending Client an e-mail to Client’s email of record with SwervePay when Client signed up for any of the Offerings. Notices provided on the website or through a mobile application will be deemed given and received within 24 hours of posting and notices sent to Client’s email will be deemed given and received on the date of transmission. Alternatively, SwervePay may provide written notice by delivering the notice to Client at the most recent address that SwervePay has on file for such Client. Notices provided to Client’s most recent address will be deemed given and received at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if by a reputable overnight delivery service with tracking capabilities. Client may update the address of its principal office by providing notice to SwervePay.
30. Notices to SwervePay. All written notices to SwervePay under this Agreement need to be in writing and delivered to SwervePay at its principal office (currently, 1150 W. Kilgore Ave; Muncie, IN 47305) and to the attention of the “Legal Department”. The notice is deemed received by a party at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S. certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if sent by a reputable overnight delivery service with tracking capabilities. SwervePay may update the address of its principal office by providing notice to Client.
31. Amendments. SwervePay may updates these Terms and Conditions or the attached Sub-Merchant Payment Processing Terms at any time by providing Client with at least 90 days advance written notice. By continuing to use the Offerings after this 90 day period, Client will be deemed to have accepted the updated Terms and Conditions or updated Sub-Merchant Payment Processing Terms (“Updated Terms”). If Client does not agree to the Updated Terms, Client will prior to the expiration of the 90 day period, cease all use of the Offerings and notify SwervePay that Client is terminating this Agreement. If Client does not provide such notice within the 90 day period, Client’s right to terminate under this Section will expire. SwervePay may withdraw the Updated Terms within 30 days of when Client notifies SwervePay of Client’s desire to terminate this Agreement and have the Agreement continue under the unaltered Terms and Conditions or unaltered Sub-Merchant Payment Processing Terms. If SwervePay does not withdraw the Updated Terms, then this Agreement will terminate in accordance with Client’s notice.
32. General. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals, prior agreements, and other communications (oral or written) between the parties relating to the subject matter of this Agreement. A waiver by either party of or a party’s delay exercising its rights under this Agreement does not constitute a waiver of any other provision, breach, or default. If any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions will remain in effect. This Agreement inures to the benefit of and binds the parties, their permitted successors, heirs, and assigns. In all matters relating to this Agreement, Client and SwervePay will act as independent contractors. Neither party shall represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as an agent, employee, franchisee, or in any other capacity. Except as it relates to each of the party’s obligations under Section 22, the parties hereby agree that there are no third party beneficiaries under this Agreement.
Exhibit 1
Sub-Merchant Payment Processing Terms
1. Payment Facilitator Relationship. SwervePay is a Payment Facilitator. “Payment Facilitator” is defined by the Operating Rules and generally refers to a service provider that is registered with a processer to facilitate the processing of payment transactions on behalf of sub-merchants. As a Payment Facilitator, Client acknowledges that SwervePay is not a bank, that there is no fiduciary relationship between Client and SwervePay, and that SwervePay enters into agreements with other processors and banks to provide the Payment Processing Services.
2. Operating Rules. In using the Payment Processing Services, Client shall comply at all times with the Operating Rules. “Operating Rules” means (1) the by-laws, operating regulations and all other rules policies and procedures of MasterCard International, Inc. (“MasterCard”), VISA USA, Inc. (“Visa”), Discover, American Express, and other payment networks (“Card Organizations”); (2) the Payment Card Industry Data Security Standard; (3) the VISA Cardholder Information Security Program and Payment Application Best Practices; (4) the MasterCard Site Data Protection Program and POS Terminal Security Program; (5) American Express’s Data Security Operating Policy; (6) Discover’s Information Security & Compliance Program; and (7) any other program or requirement that may be published or mandated by MasterCard, Visa, Discover, American Express, or other payment networks/card associations.
3. Sub-Merchant Account. To use the Payment Processing Services Client shall work with SwervePay to set up and maintain one or more sub-merchant accounts by: (1) providing all required documentation and information, and (2) cooperating with SwervePay’s due diligence, Office of Foreign Asset Control related inquiries, and underwriting efforts. Client shall provide and maintain accurate and complete information with SwervePay to enable SwervePay to provide the sub-merchant accounts and the Payment Processing Services. Client authorizes SwervePay to share any such information with SwervePay’s processors, the sponsor bank, Client’s financial institutions, the Card Organizations, or to any other person or entity whose involvement is necessary to provide the Payment Processing Services. Client acknowledges that SwervePay will perform ongoing risk assessments related to Client’s sub-merchant accounts in accordance with the Operating Rules. Client authorizes SwervePay to request reports about Client from consumer reporting agencies, and Client shall cooperate to provide all documents requested by SwervePay to perform ongoing monitoring and analysis of Client’s financial condition. If any information is identified in these activities by SwervePay that either prevents SwervePay from being able to establish a sub-merchant account for Client or requires that SwervePay terminate Client’s existing sub-merchant account, SwervePay may immediately cease providing the Payment Processing Services, the other Offerings, and terminate this Agreement by providing notice to Client.
4. Client Warranties and Obligations. Client warrants that the individual entering into this Agreement on behalf of Client is at least 18 years of age and is authorized to enter into this Agreement. Client further warrants (a) it is either a legal resident of the United States, a United States citizen, or a legal business entity authorized to conduct business in one of the states in the United States; (b) the name identified by Client when Client completed the Enrollment Form is Client’s name under which Client operates and will obtain payment transactions; and (c) Client is in good standing, has all necessary licenses and permits to operate its business, and has all necessary right, power, and ability to comply with the terms of this Agreement. Client shall only use the Payment Processing Services within the United State. Client shall provide SwervePay with timely notification of any: (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; (iii) an adverse governmental or regulatory actions taken against Client; (iv) any change in the nature of Client’s products or services that makes the products or services materially different to what was previously represented to SwervePay; and (v) any other adverse changes that would interfere with Client’s ability to fulfill Client’s obligations under this Agreement. Client shall fulfill all obligations to Client’s customers related to any payment transaction and will be solely responsible for and resolve any dispute or complaint with a Payer.
5. Restrictions. Client shall:
b. not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (1) adult content; (2) airline or cruise line; (3) credit counseling or identity protection services; (4) sales to or from operations outside the United States of America and Canada; (5) distressed property sales and marketing; (6) gambling establishments or gambling; (7) card not present tobacco or pharmaceutical sales; (8) goods or services sold through rebate or upsell programs; (9) timeshare resales and related marketing of goods, services or properties; (10) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; or (11) buyer club activities or buyer club memberships.
c. not submit any transaction that: (1) adds any surcharge or other amount to the transaction as a condition of paying with a payment card, except to the extent authorized by the Operating Rules and applicable law; (2) adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately; (3) represents the refinancing or transfer of an existing Payer obligation that is deemed to be uncollectible or arises from the dishonor of a Payer’s personal check or from the acceptance of a Card at a terminal that dispenses scrip; (4) is not a valid transaction between the Client and a bona fide Payer; (5) Client knows or should have known to be fraudulent or not authorized by the Payer; (6) does not result from an act between Client and the Payer; or (7) required a valid authorization and it was not obtained.
d. not submit any refund transaction: (1) that does not correlate to an original sales transaction from the Payer; (2) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Payer for postage paid by the Payer to return merchandise in accordance with a policy applied consistently by Payer to all Client customers, (3) for returned products that were acquired in a cash purchase from Client; (4) that would cause an overdraft; or (5) more than three business days following either: (A) a regulatory requirement granting a Payer’s right to a refund; or (B) a non-disputed Payer request;
e. not transfer or attempt to transfer Client’s financial liability by asking or requiring Payer to waive their dispute rights; and
f. not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
6. Direct Processing Agreement. In accordance with the Operating Rules, SwervePay may need to have Client execute a direct agreement with SwervePay’s payment processor, in the form provided by SwervePay’s processor. Client will execute that direct agreement upon SwervePay’s request. If a direct agreement is deemed required and Client fails to enter into it upon request or the payment processor terminates the direct agreement at any time, SwervePay may cease providing the Offerings and terminate this Agreement by providing written notice to Client.
7. Deposit Account. As part of the Enrollment Form and for any subsequent account Client opens related to the Payment Processing Services, Client shall complete an Authorization for Direct Deposits form and for the duration of this Agreement, Client shall maintain one or more commercial checking account(s) to facilitate payment of payment transactions and automated clearing house network transfers between SwervePay and Client (“Deposit Account”). Client will notify SwervePay in writing any time there is a change in the Deposit Account information that will materially affect the ability of SwervePay to facilitate ACH transactions to Client’s Deposit Account. Client acknowledges that SwervePay is not responsible for any failure of Client to receive an ACH transfer that is caused by Client failing to maintain the Deposit Account or accurate Deposit Account information with SwervePay. Client shall maintain sufficient funds in the Deposit Account to accommodate the payment of any Fees, Chargeback liabilities, charges associated with the purchase of Terminals, or payment of any assessments from the Card Organizations.
8. Distribution of Funds to Client. Within one to two business days of a deposit of the funds from a payment by a Payer of an obligation due to Client into the Settlement Bank Account (“Funds”), SwervePay will have the Member Bank transmit via an ACH transfer to Client’s Deposit Account the Funds owed to Client provided that SwervePay receives a valid authorization code from the applicable Card Organization. Client further acknowledges that availability of the Funds for use by Client is subject to the control of the banking institutions and SwervePay is not responsible for any delay caused by the banking institutions. “Settlement Bank Account” means a bank or escrow account maintained by the Member Bank for receipt of payments made through the Payment Processing Services. “Member Bank” means a financial institution that provides credit card processing services for SwervePay under this Agreement. Each transaction will be considered complete when SwervePay has received the Funds and when such Funds have been accepted by Client’s designated bank or financial institution.
9. Chargebacks. A “Chargeback” occurs if a charge or transaction is reversed or returned for any reason to Client’s sub-merchant account by a Payer or card issuer. Client is solely responsible for the payment of all Chargebacks, and under no circumstances shall SwervePay be responsible for Chargebacks. Further, if a Chargeback occurs for any reason, Client will pay to SwervePay any administrative fees set forth in the Enrollment Form that reflects SwervePay’s involvement in the Chargeback resolution process. For any Chargeback, Client will also pay all credit card, debit card, bank, and ACH transaction fees, fines or penalties and refund all Funds transferred to Client’s Deposit Account corresponding to the Chargeback amount. Client will be notified of the Chargeback and of the amount due. If Client has a reason to dispute the Chargeback, Client has to dispute the Chargeback based on the date provided in the Chargeback notice. SwervePay has no independent obligation to investigate, dispute, or attempt to obtain reversal or adjustment of any Chargeback. SwervePay may deduct, and Client authorizes SwervePay to deduct, the amount of any Chargeback and any associated fees, fines, or penalties assessed by each processor and bank from: (a) Client’s sub-merchant account, (b) Client’s Reserve Account (if applicable), (c) Client’s Deposit Account; or (d) any amounts due to Client. If Client is incurring an excessive number of Chargebacks, SwervePay may increase the Fees, may hold back settlement of funds, establish or increase the fund requirements for a Reserve Account, or terminate this Agreement by providing written notice to Client. Client is responsible for monitoring Client’s monthly Chargeback percentage and developing Chargeback reduction programs as required by the Card Organizations.
10. Correcting Payment Errors. Client authorizes SwervePay, SwervePay’s processor, or Member Bank to debit the Deposit Account or Reserve Account for any misdirected deposits, duplicate deposit, or inadvertent overpayments into Client’s Deposit Account. This debit authorization survives the termination of this Agreement until SwervePay validates that there are no Incorrect Deposits that need to be addressed.
11. Statements and Client Review. SwervePay shall make available to Client statements and transaction reports reflecting Client’s sub-merchant account activity (“Statements”). Client acknowledges that Client has 90 days from when the Statements are made available to Client to review the Statements for accuracy. Subject to Client providing SwervePay with written notice of any dispute or discrepancy related to the Statement within that 90 day period, Client may reasonably dispute a Statement. Upon receipt of the dispute by SwervePay, SwervePay will review the disputed Statement and the parties will work together in good faith to resolve the dispute. If it is determined that SwervePay owes any additional amounts to Client, SwervePay will disperse that amount in accordance with Section 8 of this Exhibit. Client agrees that SwervePay will not be liable to Client or have any obligation to resolve any discrepancy in any Statement that Client does not dispute in accordance with this Section. Client’s failure to follow the dispute resolution procedures in this Section shall result in all such disputes being waived by Client.
12. Reserve Account. Upon notice to Client, SwervePay may elect or be required by SwervePay’s payment processor to establish a non-segregated account at a financial institution to ensure payment of all of Client’s payment or Fee obligations under this Agreement (“Reserve Account”). Client hereby permits SwervePay to fund the Reserve Account through (a) debiting the Deposit Account; (b) withholding Funds and depositing those funds in the Reserve Account; or (c) invoice Client and Client will pay such invoice within 30 days of the date of the invoice. SwervePay may continue to hold the Reserve Account with any amounts in it for up to one year after the termination of this Agreement. Client acknowledges that Client will not receive any interest on the amounts in the Reserve Account and has no right to access the amounts in the Reserve Account until SwervePay closes the Reserve Account and provides all amounts (if any) in the Reserve Account to Client. SwervePay will close the Reserve Account and release any amounts to Client once Client satisfies all payment obligations under this Agreement. The funds in the Reserve Account will be deemed to be the exclusive property of SwervePay, and not the merchant, while SwervePay holds such funds. Without in any way limiting the foregoing, and merely as an additional form of security, Client hereby further grants SwervePay a security interest in the Reserve Funds to the full extent necessary to satisfy any of Client’s obligations to SwervePay. SwervePay may enforce its security interest with or without notice or demand. The security interest(s) granted under this section will continue after termination of this Agreement until Client satisfies all its obligations to SwervePay. Client further agrees to execute and deliver to SwervePay such instruments and documents as SwervePay may reasonably request to confirm and perfect the security interest(s) granted by this Agreement.
13. Investigations and Sharing of Information. If SwervePay reasonably believes that a transaction is in violation of this Agreement, is illegal or otherwise may cause harm to SwervePay, Client, a Payer, or SwervePay’s processor, SwervePay may choose not to authorize, process, or settle the transaction. If SwervePay discovers any such transaction or any other unusual or unexpected transaction activity on Client’s sub-merchant account, Client authorizes SwervePay to hold Funds while SwervePay conducts an investigation into the transaction activity. As part of such investigation and upon SwervePay’s request, Client will provide all documentation requested to support or otherwise validate any transaction being investigated. As part of any SwervePay investigation or if required by law, court order, or a request from law enforcement or a governmental entity, SwervePay may withhold and defer the distribution to Client of any Funds until such investigation concludes, or such legal or governmental requirement no longer applies. If SwervePay reasonably believes that the Payment Processing Services have been used for an illegal, unauthorized or criminal purpose, Client expressly authorizes SwervePay to share information about Client, Client’s sub-merchant account, or Client’s transactions with Client’s banks, Client’s financial institutions, SwervePay’s processor, the Card Organizations, SwervePay’s advisors, and with law enforcement and governmental entities. If SwervePay reasonably believes in good faith that that Client needs to be reported under the Operating Rules, Client acknowledges that SwervePay may report Client to the MATCH list (Member Alert to Control High-Risk), the Card Organizations, any applicable governmental agency or law enforcement agency.
14. Honoring Cards. Client has the responsibility to validate the identity of the Payer and the Payer’s payment card information. If Client determines a payment card is expired or that the account number is listed on a current Electronic Warning Bulletin file or the account number does not match the card’s magnetic strip or chip, Client will not honor the payment card or the transaction. Client shall ensure that the Payer understands Client is responsible for the transaction and all the details related to the charges that will be processed on Payer’s payment card. Client shall maintain return and refund policies that comply with the Operating Rules and disclose to Payers any refund or return policies Client has. Unless a Payer expressly declines a written receipt, Client shall make a receipt available to a Payer for any transaction, whether in writing or via electronic means. Notwithstanding Client’s obligations herein SwervePay shall have the right, in its sole discretion, to decline to process any transaction that it believes is improper, fraudulent, unlawful, or otherwise in violation of any Laws and Regulations.
15. Client’s Security Obligations. Client shall keep all payment card, account information and personal information of a Payer (“Payer Information”) confidential and not disclose such information to a third party except as permitted under the Laws and Standards. Client shall keep Payer Information in a secure manner to prevent disclosure to unauthorized parties and in a manner that complies with all the Laws and Standards. Upon SwervePay’s request, Client will provide proof to SwervePay of Client’s compliance with the Laws and Standards. Client will only use the Payer Information for obtaining payment and not use or disclose the Payer Information for marketing purposes or any other unauthorized use without express consent of the Payer. Client shall immediately notify SwervePay if: (a) Client has reason to believe that Client’s sub-merchant account is no longer secure or being used for unauthorized purposes; or (b) Client discovers or has reason to suspect that a data breach has occurred. In any such event, Client will fully cooperate, at its expense, with all remediation efforts, forensic examination, and mitigation procedures required under the Laws and Standards or reasonably requested by SwervePay, the Card Organizations, SwervePay’s processor, and any of the parties’ banks or financial institutions. Client acknowledges that any failure to comply with the Laws and Standards or the occurrence of any data breach suffered by Client may result in Client being assessed penalties or fines by the Card Organization and Client shall pay those penalties and fines.
16. Third Parties. To the extent Client uses any third party to process, store, receive, transmit, or otherwise have access to Payer Information, Client assumes full responsibility and liability for such third party’s compliance with this Agreement and the Laws and Standards. SwervePay is not liable for the acts or omissions of such third parties. Client further agrees to notify SwervePay of the identity of all such third parties if those third parties relate to the Payment Processing Services and to ensure that such third parties are properly registered, if required to be so, with the Card Organizations. SwervePay may require any such third parties to undergo testing, approval, and certification by SwervePay or SwervePay’s bank or processer. SwervePay may, at any time, also terminate such third parties’ access to or ability to integrate with SwervePay. For the sake of clarity, SwervePay’s affiliates or subcontractors are not considered a third party under this Section.
17. Termination and Suspension Rights. In addition to the termination rights set forth in the Terms and Conditions, SwervePay may suspend providing the Payment Processing Services to Client upon providing notice to Client, if Client: (a) has violated these Sub-Merchant Payment Processing Terms or any of the Laws and Standards; (b) poses an unacceptable credit or fraud risk, as determined by SwervePay, SwervePay’s processor, or the Card Organizations; (c) becomes subject to any investigation or enforcement action by law enforcement or a governmental entity; (d) falls outside of SwervePay’s credit policies; (e) provides any false, incomplete, inaccurate, or misleading information or otherwise engages in fraudulent or illegal conduct; or (f) becomes part of the MATCH list or Terminated Client File maintained by MasterCard. If SwervePay suspends providing the Payment Processing Services for any of the foregoing reasons and the circumstances do not change after 30 days, SwervePay may terminate this Agreement by providing written notice to Client. Upon suspension of the Payment Processing Services or termination of this Agreement for any reason, (i) all pending transactions will be cancelled; (ii) Client shall pay all Fees and any other amounts owed to SwervePay that were accrued prior to the termination; and (iii) Client will remain liable for any and all Chargebacks, credits, adjustments, penalties, fines, costs, and all other amounts that become due prior to or after the suspension or termination. As part of the suspension or termination of the Agreement, SwervePay may establish and maintain a Reserve Account in accordance with Section 14 of this Exhibit. If Client is subject to an investigation or enforcement action at the time Client seeks to close a Client sub-merchant account, SwervePay may retain the Funds in the sub-merchant account or a Reserve Account until the investigation or action is completed.
18. Provisions Specific to American Express. If Client is accepting American Express card payments, Client agrees to the following in connection with its acceptance of American Express cards:
a) Any request to accept American Express cards is subject to approval by American Express. If approved, Client authorizes SwervePay to submit American Express card transactions to American Express. Client also agrees to accept settlement from American Express.
b) The American Express Merchant Operating Guide is incorporated into this Agreement by reference and available at the following link: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf. Client’s acceptance of American Express cards must be in accordance with American Express’s Merchant Operating Guide and any other rules promulgated by American Express, as amended from time to time.
c) Client may opt out of receiving commercial marketing materials from American Express without affecting Client’s ability to accept American Express cards or to receive important transactional or relationship messages from American Express.
d) Client agrees that American Express may use information obtained from Client to screen or monitor Client in connection with American Express card marketing and administrative purposes. In addition, American Express may use data obtained from Client to perform American Express’s responsibilities with the American Express OptBlue Program, to promote the American Express network, to perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes, and important transactional or relationship messages.
e) Client agrees that it may be converted from American Express Card acceptance pursuant to this Agreement to a direct American Express Card acceptance relationship with American Express if and when it becomes a High CV Merchant. “High CV Merchant” means a merchant with either (1) greater than $1 million in American Express Card Transaction volume (including volume from all Merchant locations) in a rolling 12 month period; or (2) greater than $100,000 in American Express Card Transaction volume (including all volume from all merchant locations) in any three consecutive months. Client will be notified if such a conversion is required and upon such conversion, Client will be bound by American Express’s then-current Card Acceptance Agreement and Client agrees that American Express will set pricing and other fees payable by Merchant for American Express Card acceptance.
f) Upon termination of this Agreement or of Client’s ability to accept American Express Cards hereunder, Client agrees to remove American Express identifying marks from Client’s website and wherever else they Client displays them.
g) Client agrees to have a refund policy for transactions on American Express cards that is at least as favorable as the refund policy or transactions on other card types.
h) Client acknowledges that it may opt out of accepting American Express cards at any time without affecting its right to accept other payment cards.
i) American Express is a third party beneficiary to this Agreement with respect to the rights in this Agreement, but not the obligations and will be able to enforce the terms of this Agreement against the Client as it relates to Client’s accepting of American Express card payments.
Client: {{{Customer_Legal_Name}}} | |
By: {{{Signer_Full_Name}}} | |
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Effective October 6, 2021 to October 6, 2021
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SwervePay Offerings Terms and Conditions (Last Updated December 1, 2020)
Please read the following carefully because these SwervePay Offerings Terms and Conditions (“Terms and Conditions”) govern your and your business’s use of the Offerings provided by SwervePay, LLC. By enrolling to use and using the Offerings you are accepting these Terms and Conditions on behalf of your business and acknowledge that this is a legal agreement between your business and SwervePay, LLC, a Delaware Limited Liability Company, with offices at 1150 W. Kilgore Ave., Muncie IN 47305 (“SwervePay”).
If you do not agree with these Terms and Conditions and the Sub-Merchant Payment Processing Terms, attached hereto as Exhibit 1, in their entirety, you and your business cannot enroll to use and cannot actually use any of the Offerings. Your use of any of the Offerings will constitute your agreement to these Terms and Conditions even if you do not physically sign this agreement.
1. Client. “Client” means the business that has enrolled to use and will use the Offerings (as defined in Section 5).
2. Enrollment. “Enrollment Form” means the enrollment form completed by Client to use the Offerings and any applicable attachments to the Enrollment Form referenced therein. To use any of the Offerings, Client will need to complete the applicable Enrollment Form and as part of the enrollment process, indicate Client’s agreement to these Terms and Conditions. The Enrollment Form sets forth the fees for the Offerings. If there is any conflict between the Enrollment Form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Terms, these Terms and Conditions will prevail. The enrollment form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Term, form the agreement between the parties (“Agreement”).
3. Effective Date and Term. The date Client accepts these Terms and Conditions by submitting an Enrollment Form is the effective date of the Agreement (“Effective Date”). The Enrollment Form will specify the duration of the initial term of the Agreement from the Effective Date (“Initial Term”). Thereafter, the term of the Agreement will automatically renew for successive one year periods (each a “Renewal Term”), unless a party provides the other party written notice of termination at least 30 days prior to the renewal date. In which case, this Agreement will automatically terminate at the end of the then current Term. “Term” means the Initial Term and any Renewal Term(s).
4. Payment Processing Services. Upon enrollment and approval by SwervePay in accordance with this Agreement, SwervePay shall provide Client with payment processing services that enable Client to accept payments via payment cards, automated clearing house transactions (“ACH”), and other approved electronic payment transactions into Client’s bank account through electronic means (“Payment Processing Services”). SwervePay will provide and Client will use the Payment Processing Services in accordance with the attached Sub-Merchant Payment Processing Terms. However, for card transactions with cards issued by American Express, Discover, or any other closed loop Card Organization, SwervePay shall provide authorization services only, and shall not have any responsibility for the settlement to client of the funds associated with such card transactions. Instead, Client authorizes settlement of transactions to be made directly by American Express, Discover, or other closed loop Card Organization(s).
5. Offerings and Right to Use To the extent SwervePay makes available to Client and Client elects to use any of the following, SwervePay will permit Client to use (a) communication tools, such as texting, e-mail, chatbots, or other electronic means for Client to communicate with Payers (“Communication Tools”); (b) web-based point of sale system (“Point of Sale Tool”); and (c) payment portals made available over the internet for the purposes of Client to collect payments from Payers (“Portals”). “Payer” means any individual or entity making a payment to Client using payment cards, ACH, or other approved electronic payment transactions. “Offerings” means the Payment Processing Services, Communication Tools, Point of Sale Tool, and Portals to the extent Client is using any of the forgoing. Subject to Client paying all necessary Fees and complying with all the other terms of this Agreement, SwervePay grants Client a non-exclusive and non-transferable subscription right for Client to use the Offerings for the Term.
6. Fees and Taxes. Client shall pay SwervePay the fees for the Offerings as set forth in the Enrollment Form (“Fees”). SwervePay may modify, increase, add different, or otherwise change the Fees by providing Client 30 days’ advance written notice provided in accordance with Section 29. Client’s continued use of the Offerings will indicate Client’s consent to the change in Fees. If Client does not agree to the change in Fees, Client will need to notify SwervePay in writing of the objection and cease all use of the Offerings. Client acknowledges that the Fees do not include any taxes. Client shall collect, report, and remit any taxes required to be collected, paid, or withheld in connection with the Offerings and Terminals. Taxes are Client’s sole responsibility. SwervePay is not responsible for determining whether or not taxes apply or for calculating, collecting, reporting, or remitting any taxes on Client’s behalf. If a tax authority seeks collection from SwervePay of any taxes in connection with this Agreement, then Client shall reimburse SwervePay upon receipt of notice from SwervePay that SwervePay has paid such tax. SwervePay and its process may make available any reports required by law regarding Client to the Internal Revenue Service or any other Federal or state taxing authority.
7. Terminals. SwervePay may permit Client to purchase point of sale payment card processing terminals (“Terminals”). Upon Client delivering payment for the purchase of the Terminals, Client shall own the Terminals. Client acknowledges that the Terminals are manufactured by third parties and are only provided for Client’s convenience. SwervePay provides all Terminals on “AS IS” basis and without any warranty of any kind. Client assumes all responsibility and liability for its use and the security of the Terminals. SwervePay disclaims all liability related to any defects or vulnerability in the Terminals, any third party hacking or otherwise gaining unauthorized access to the Terminals, or any use of the Terminals by Client.
8. Communication Tools. To the extent Client utilizes the Communication Tools, Client shall obtain all necessary consents from the Payers to use the Communication Tools to communicate with the Payer. Client shall comply with any applicable legal obligation, carrier requirements, or industry standards related to communicating with Payers using the Communication Tools. Client shall make public terms and conditions related to Client’s use of the Communication Tools to communicate with the Payer and have each Payer agree to those terms and conditions. To the extent Client uses any Communication Tool that requires the use of a telephone carrier or wireless services provider, Client acknowledges that the applicable messages and associated data will be transmitted through such carriers and providers. Client authorizes SwervePay to disclose all requested information to the carriers and providers to allow Client’s use of the applicable Communication Tools. Client also acknowledges that some of the Communication Tools may require the uploading and transmitting of data and information over the Internet.
9. Implementation. The parties shall cooperate with one another to set up and enable Client’s use of the Offerings. Client acknowledges that the implementation of the Offerings will not begin until SwervePay assigns resources to begin the project. Client shall provide SwervePay with all access to any data, systems and information reasonably required to implement the Offerings. SwervePay will provide all implementation services on a remote basis between the hours of 8 am and 5 pm based on the location of the resources performing the implementation services. Client shall provide at least one qualified Client representative to receive training on the Offerings.
10. Support and Maintenance. After making the Offerings available for Client’s use in a production environment (“Go Live Date”), the parties will cooperate with one another in the administration of the Offerings. Client may contact SwervePay through SwervePay’s designated support communication channels to obtain general support by logging a support ticket. SwervePay will seek to make any Intrusive Changes only during its standard or scheduled maintenance windows. As used in this Section, “Intrusive Changes” means maintenance that will render the Offerings unavailable and “Non-Intrusive Changes” means maintenance that is not intended to make any of the Offerings unavailable. Client acknowledges that SwervePay performs Non-Intrusive Changes as needed.
11. SaaS Offerings. For Offerings either hosted or provided as a software as a service (“SaaS Offerings”), SwervePay may utilize one or more third-party hosting providers to provide the SaaS Offerings and may change hosting providers by providing Client 30 days advance written notice. SwervePay uses reasonable efforts to make any of the SaaS Offerings available. Client acknowledges that SwervePay may make any of the SaaS Offerings unavailable during Scheduled Downtime and for Emergency Maintenance. “Scheduled Downtime” means time required to perform backup, maintenance and restore any of the SaaS Offerings that occurs during SwervePay’s standard maintenance window or during any additional downtime that is scheduled in advance by SwervePay. "Emergency Maintenance" means any corrective action intended to address hardware or software failures, viruses, malware, worms, other disabling code, or other conditions likely to cause degradation, security risks, or interruption, as designated by SwervePay in its reasonable discretion, with or without notice to Client. In using the SaaS Offerings, Client shall not: (a) forge authentication credentials, use the authentication credentials of another user or disclose Client’s authentication credentials to any third party; (b) damage, bypass, break, or otherwise circumvent any of SwervePay’s security mechanisms; (c) use the SaaS Offerings: (i) to attempt to breach, circumvent or hack a third party, (ii) to transmit viruses, malicious, harmful, or deleterious programs or code, (iii) to launch or facilitate a denial of service attack; or (iv) in a manner that otherwise poses a security threat; (d) probe, scan, or test the vulnerability of the SaaS Offerings or monitor data or traffic of the SaaS Offerings without permission from SwervePay; (e) reverse-engineer the SaaS Offerings in order to find limitation, vulnerability or to evade, disable, or render inaccurate accounting billing, capacity limitations, or other functions of the SaaS Offerings; (f) use the SaaS Offerings to encourage, facilitate, engage, or in connection with abuse, harassment, discrimination, fraudulent activities, deceptive practices or other unlawful activities, or harmful or malicious acts; or (g) use the SaaS Offerings in a manner that would violate the Truth in Caller ID Act, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, the Do-Not Call Implementation Act, or any other local, state, federal, or foreign law or regulation. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation, and may terminate this agreement if Client does not cure.
12. Connections. To enable Client’s use of the Offerings, Client shall establish and maintain any necessary connections that meet SwervePay’s standards between Client’s network or systems and the Offerings. Client shall pay all costs related to setting up these connections. Client is responsible for making sure all such equipment functions appropriately and Client shall replace that equipment as needed.
13. Accuracy of Client Data. Client acknowledges that Client is responsible for the accuracy and integrity of the information Client provides through Client’s use of the Offerings and the setting up maintaining of any accounts to use the Offerings. Client is also responsible for adopting procedures to identify and correct errors and omissions in such provided information. Client shall maintain the security of any account user names, passwords and any other login information Client uses to access and use the Offerings and shall promptly notify SwervePay if Client becomes aware of any unauthorized disclosure or use of Client’s account information. Client acknowledges that SwervePay does not review any of Client’s data or information for accuracy, validity, or compliance and SwervePay is not responsible for errors caused by insufficient or inaccurate data. Client shall monitor the contents of any messages being sent through the Offerings.
14. Client’s Compliance with Laws and Standards. Client shall comply with and use the Offerings in a manner that complies with the Operating Rules (as defined in Exhibit 1), the Health Insurance Portability and Accountability Act, the Hi-Tech Act, the Fair Debt Collection Practices Act, the Electronic Funds Transfer Act, the Telephone Consumer Protection Act, the Payment Card Industry Data Security Standards, and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the collection of debts, processing payments, and Client’s business (“Laws and Standards”). Client acknowledges that it has not retained SwervePay to provide guidance, advice, or counsel with respect to compliance with the Laws and Standards. Client takes full responsibility and assumes all risk and liability for Client’s own compliance with the Laws and Standards and Client’s use of the Offerings in compliance with the Laws and Standards. Client will reimburse SwervePay for any fines, legal expenses, reasonable attorneys’ fees, or out of out of pocket costs incurred by SwervePay because of Client’s failure to comply with these Laws and Standards. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation.
15. Proprietary Rights. SwervePay retains sole and exclusive ownership of all right, title and interest in the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides to Client under this Agreement. To the extent necessary to verify this ownership, Client agrees to and hereby does assign to SwervePay all copyrights, patent rights, title, and all other proprietary rights to the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides under this Agreement. Client shall not alter, modify, adapt, translate, copy, reverse engineer, decompile, disassemble, or create any derivative works of the Offerings. Client shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that are contained in the Offerings or any related information, documentation, or deliverables. Client shall not attempt to circumvent or circumvent any user limits, license keys, or other license, timing or use restriction built into the Offerings.
16. Confidentiality. The party receiving information (“Recipient”) from the other party (“Discloser”) shall treat Discloser’s information as confidential (“Confidential Information”) unless: (1) Recipient is able to demonstrate that the Confidential Information was known to Recipient prior to the disclosure; (2) Recipient is able to demonstrate the Confidential Information is part of the public domain; or (3) Recipient’s personnel, without knowledge of the Confidential Information, independently develops the information. Except as permitted under this Agreement, Recipient shall only use the Confidential Information to perform its obligations and shall not disclose or permit any third party to disclose any Confidential Information to any other person. Recipient shall not and shall not permit any third party to reproduce the Confidential Information or any portions thereof unless such reproductions are permitted by or are necessary for Recipient to perform its obligations under this Agreement. Recipient shall ensure that all reproductions of Discloser’s Confidential Information contain (if any) Discloser's proprietary or confidentiality notices in the same manner in which such notices were set forth in or on the original. Recipient will protect the Discloser's Confidential Information in the same manner that it employs to protect its own Confidential Information and in no event, will Recipient use less than reasonable efforts to protect the Discloser's Confidential Information from disclosure. Recipient may disclose the Confidential Information to its employees, subcontractors, advisors, or affiliates, who have been informed of the confidential nature of the Confidential Information and who have obligations of confidentiality that protect such types of information from disclosure to third parties. If Recipient is required by law or court order to disclose Discloser’s Confidential Information, Recipient may disclose the Confidential Information; subject to, where legally permitted, Recipient will: (1) provide Discloser prompt and advance written notice of the requirement; and (2) after providing the notice, reasonably assist Discloser, at Discloser's election and expense, in seeking to obtain an order protecting the information from further disclosure.
17. Use of Data. Client acknowledges that (a) SwervePay provides Offerings under this Agreement that will utilize the data provided by Client to allow Client to collect payment and generate communications with individuals, and to achieve other desired outcomes; and (b) SwervePay collects statistical, system, user experience and other data related to Client’s use of the Offerings for the purposes of: (1) monitoring and improving the functionality of the Offerings; (2) offering trending or statistical De-Identified Data to SwervePay’s user base; and (3) aggregating and using De-Identified Data for SwervePay’s own business purposes as described in any applicable privacy policy for the Offerings. “De-Identified Data” means data that does not identify Client and does not identify any individual or identify any entity. SwervePay shall only use De-Identified Data in a manner that complies with applicable laws. Client authorizes SwervePay to transmit and share data submitted by Client to SwervePay’s processor, applicable financial institutions, Card Organization(s), and/or any other person or entity to facilitate the provision of the Payment Processing Services.
18. SwervePay Warranties. SwervePay warrants that SwervePay uses reasonably qualified personnel to provide the services. Client's sole and exclusive remedy for a breach of this warranty is SwervePay re-performing of the applicable services at no additional cost to Client. SwervePay warrants that SwervePay complies with the applicable Operating Rules and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the processing of payments, and SwervePay’s business. Client acknowledges that Client is not relying upon any other representations, warranties, or promises that are not contained in this Agreement. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, SWERVEPAY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE OFFERINGS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE REGARDING MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. SWERVEPAY DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL MEET CLIENT'S REQUIREMENTS OR THAT THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
19. Sunsetting. SwervePay may cease providing any of the Offerings by providing Client with at least 12 months advance written notice that the applicable Offering is being sunset. After that 12 month period, SwervePay will have no further obligations related to the applicable Offering and will cease charging Client for any applicable Fees associated with the sunsetted offering.
20. Termination for Breach. If either party breaches this Agreement in any manner, the other party may terminate this Agreement by first providing the breaching party with written notice describing the breach in detail and allowing the breaching party 30 days after receipt of the notice to cure the breach. If the breaching party fails to cure, this Agreement will automatically terminate at the end of the 30-day cure period.
21. Effect of Termination. Within 90 days of termination or expiration of this Agreement, Recipient will destroy and purge from its computer systems the Discloser’s Confidential Information (including all copies, excerpts and summaries thereof), except to the extent such Confidential Information is stored pursuant to the Recipient’s standard back-up procedures or retained to meet Recipient’s legal or regulatory requirements or Recipient’s internal audit, document retention or internal compliance requirements. If the Discloser’s Confidential Information is retained as permitted in this Section, the Recipient will continue to abide by the confidentiality obligation of this Agreement until the Recipient ceases retaining such Confidential Information. Recipient shall destroy and purge such Confidential Information within the normal timeframe for deleting and purging such data. Client acknowledges that SwervePay retains transaction records as required by applicable law and the Operating Rules and that information is not considered Client’s Confidential Information. Upon request by the Discloser, the Recipient will certify in writing that the Recipient has complied with its obligations under this Section. Sections 6, Sections 14-16, the disclaimer in Section 18, Sections 21-24, Sections 29-32 of these Terms and Conditions and Section 17 of the attached Sub-Merchant Processing Payment Terms survive termination of this Agreement.
22. Indemnification. Each party shall indemnify and defend the other party, its affiliates, and its officers, directors, and employees, from and against any third party claims, losses, damages, liabilities, lawsuits, and expenses (including reasonable attorneys’ fees, court costs and other defense expenses) arising out of or resulting from: (a) the indemnifying party’s failure to comply with the Operating Rules; (b) the indemnifying party’s breach of any warranty or representation under this Agreement; and (c) a data security breach or unauthorized access or disclosure of Client data or Payer information arising out of any act or omission of the indemnifying party, its affiliates, or contractors. The indemnified party shall notify the indemnifying party of any claim that falls under this Section promptly after the indemnifying party learns of such claim; provided, however, that the indemnifying party will only be relieved of its obligations under this Section due to the failure of the indemnified party to provide such prompt notice to the extent that the failure materially prejudices the indemnifying party in defending such claim. The indemnifying party’s obligations under this Section are conditioned upon the indemnified party: (i) providing all reasonably requested information and cooperation to the indemnifying party; and (ii) giving the indemnifying party sole control of the defense or settlement of such claim, at the indemnifying party’s sole cost and expense; provided, however, that the indemnifying party may not settle any such claim in a manner that requires the indemnified party to admit fault or incur any direct expense without the consent of the indemnified party, which will not be unreasonably withheld or delayed. If the indemnifying party fails to timely undertake the defense of a claim under this Section, each of the indemnified parties may undertake the defense (including settlement) of such claim and the indemnifying party will reimburse the indemnified parties for all such costs.
23. Limitation of Liability. For any causes of action, claims, or assertions arising under or related to this Agreement or to the offerings (each a “Claim”), Swervepay’s liability in the aggregate to Client will not exceed THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO SWERVEPAY PURSUANT TO THIS AGREEMENT during the 6 months prior to the date the Claim is made, regardless of the form of action (whether based on contract, tort, negligence, strict liability, or otherwise). IN NO EVENT WILL SWERVEPAY BE LIABLE TO CLIENT FOR ANY LOST PROFITS OR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES OF ANY TYPE OR NATURE, EVEN IF SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT FEES OR CHARGES OF THE CARD ORGANIZATIONS OR OTHER THIRD PARTIES PASSED THROUGH TO CLIENT PURSUANT TO THIS AGREEMENT WILL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO SWERVEPAY WHEN DETERMINING SWERVEPAY’S LIABILITY UNDER THIS SECTION. CLIENT EXPRESSLY AGREES TO PAY ANY FEES OR ASSESSMENTS LEVIED BY ANY CARD ORGANIZATION AS A RESULT OF ANY ACTIVITY ASSOCIATED WITH CLIENT’S MERCHANT ACCOUNT, AND THAT SWERVEPAY IS NOT LIABLE FOR ANY SUCH FEES OR ASSESSMENTS UNDER ANY CIRCUMSTANCES. FURTHER, UNDER NO CIRCUMSTANCES WILL SWERVEPAY HAVE ANY LIABILITY TO CLIENT FOR PLACING CLIENT ON THE MATCH LIST BASED ON A GOOD FAITH, REASONABLE BELIEF BY SWERVEPAY THAT SUCH PLACEMENT WAS PROPER.
24. Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the state of Indiana in the United States without regard to conflict of law principles. All disputes arising out of or related to this Agreement will be exclusively brought and exclusively maintained in the State courts located in Delaware County, Indiana, or the United States District Court for the Southern District of Indiana, Indianapolis Division (or upon appeal, to the appellate courts of corresponding jurisdiction to such State or Federal court). Each party consents to and waives any objection to the exclusive personal jurisdiction and venue of such State and Federal courts.
25. Government Sales. This section applies to all acquisitions of the Offerings and documentation (collectively or individually for the purposes of this section, the “Government Acquired Products”) by or for the government of the United States of America or other government entity (the “Government”), or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the Government. By accepting delivery of the Government Acquired Products, Client hereby acknowledges that (a) the Offerings and documentation have been developed exclusively at private expenses, (b) the software based Offerings are commercial software and the documentation is commercial software documentation within the meaning of the acquisition regulation(s) applicable to this procurement, (c) the terms and conditions of this Agreement govern the all use and disclosure of the Government Acquired Products, and will supersede any conflicting contractual terms or conditions, and (d) this Agreement meets the Client’s needs or is consistent in all respect with United States law.
26. Force Majeure. Except for Client's payment obligations hereunder, a party will not be responsible for any failure to perform due to acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, strikes, or other causes beyond its reasonable control (each a "Force Majeure Event") provided that such party gives prompt written notice to the other party of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event. If the Force Majeure Event causes a delay of more than three months, either party may terminate an Order or this Agreement without penalty by providing written notice to the other party.
27. No Transfer or Assignment. Without obtaining SwervePay’s advance prior written consent, Client shall not assign, transfer, sublicense, subcontract, or otherwise delegate, in whole or in part any of Client’s rights, duties or obligations under this Agreement, including the right to receive settlement of funds pursuant to this Agreement. Any assignment, transfer, or delegation made by Client without complying with this Section is null and void and will permit SwervePay to terminate this Agreement immediately upon providing written notice to Client. Any, indirect or direct, change of ownership of Client is considered an assignment.
28. Export. Client shall not export or re-export the Offering without the prior written authorization of SwervePay and, as may be required under United States laws and regulations, the prior written authorization of the United States Department of Commerce or any other relevant Federal agency. SwervePay does not represent that the Offerings are appropriate or available for use in other countries. If Client obtains SwervePay’s authorization to export the Offerings, Client is solely responsible for compliance with all applicable laws, including export and import regulations of other countries.
29. Notices to Client. Client consents to do business electronically with SwervePay and receive electronic communications from SwervePay under this Agreement. SwervePay may provide Client notices, disclosures, or other information about the Offerings and Fees charged under this Agreement. Client agrees that SwervePay may provide this information and these notices by making them available on SwervePay’s website, through any mobile application in use by Client, or by sending Client an e-mail to Client’s email of record with SwervePay when Client signed up for any of the Offerings. Notices provided on the website or through a mobile application will be deemed given and received within 24 hours of posting and notices sent to Client’s email will be deemed given and received on the date of transmission. Alternatively, SwervePay may provide written notice by delivering the notice to Client at the most recent address that SwervePay has on file for such Client. Notices provided to Client’s most recent address will be deemed given and received at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if by a reputable overnight delivery service with tracking capabilities. Client may update the address of its principal office by providing notice to SwervePay.
30. Notices to SwervePay. All written notices to SwervePay under this Agreement need to be in writing and delivered to SwervePay at its principal office (currently, 1150 W. Kilgore Ave; Muncie, IN 47305) and to the attention of the “Legal Department”. The notice is deemed received by a party at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S. certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if sent by a reputable overnight delivery service with tracking capabilities. SwervePay may update the address of its principal office by providing notice to Client.
31. Amendments. SwervePay may updates these Terms and Conditions or the attached Sub-Merchant Payment Processing Terms at any time by providing Client with at least 90 days advance written notice. By continuing to use the Offerings after this 90 day period, Client will be deemed to have accepted the updated Terms and Conditions or updated Sub-Merchant Payment Processing Terms (“Updated Terms”). If Client does not agree to the Updated Terms, Client will prior to the expiration of the 90 day period, cease all use of the Offerings and notify SwervePay that Client is terminating this Agreement. If Client does not provide such notice within the 90 day period, Client’s right to terminate under this Section will expire. SwervePay may withdraw the Updated Terms within 30 days of when Client notifies SwervePay of Client’s desire to terminate this Agreement and have the Agreement continue under the unaltered Terms and Conditions or unaltered Sub-Merchant Payment Processing Terms. If SwervePay does not withdraw the Updated Terms, then this Agreement will terminate in accordance with Client’s notice.
32. General. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals, prior agreements, and other communications (oral or written) between the parties relating to the subject matter of this Agreement. A waiver by either party of or a party’s delay exercising its rights under this Agreement does not constitute a waiver of any other provision, breach, or default. If any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions will remain in effect. This Agreement inures to the benefit of and binds the parties, their permitted successors, heirs, and assigns. In all matters relating to this Agreement, Client and SwervePay will act as independent contractors. Neither party shall represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as an agent, employee, franchisee, or in any other capacity. Except as it relates to each of the party’s obligations under Section 22, the parties hereby agree that there are no third party beneficiaries under this Agreement.
Exhibit 1
Sub-Merchant Payment Processing Terms
1. Payment Facilitator Relationship. SwervePay is a Payment Facilitator. “Payment Facilitator” is defined by the Operating Rules and generally refers to a service provider that is registered with a processer to facilitate the processing of payment transactions on behalf of sub-merchants. As a Payment Facilitator, Client acknowledges that SwervePay is not a bank, that there is no fiduciary relationship between Client and SwervePay, and that SwervePay enters into agreements with other processors and banks to provide the Payment Processing Services.
2. Operating Rules. In using the Payment Processing Services, Client shall comply at all times with the Operating Rules. “Operating Rules” means (1) the by-laws, operating regulations and all other rules policies and procedures of MasterCard International, Inc. (“MasterCard”), VISA USA, Inc. (“Visa”), Discover, American Express, and other payment networks (“Card Organizations”); (2) the Payment Card Industry Data Security Standard; (3) the VISA Cardholder Information Security Program and Payment Application Best Practices; (4) the MasterCard Site Data Protection Program and POS Terminal Security Program; (5) American Express’s Data Security Operating Policy; (6) Discover’s Information Security & Compliance Program; and (7) any other program or requirement that may be published or mandated by MasterCard, Visa, Discover, American Express, or other payment networks/card associations.
3. Sub-Merchant Account. To use the Payment Processing Services Client shall work with SwervePay to set up and maintain one or more sub-merchant accounts by: (1) providing all required documentation and information, and (2) cooperating with SwervePay’s due diligence, Office of Foreign Asset Control related inquiries, and underwriting efforts. Client shall provide and maintain accurate and complete information with SwervePay to enable SwervePay to provide the sub-merchant accounts and the Payment Processing Services. Client authorizes SwervePay to share any such information with SwervePay’s processors, the sponsor bank, Client’s financial institutions, the Card Organizations, or to any other person or entity whose involvement is necessary to provide the Payment Processing Services. Client acknowledges that SwervePay will perform ongoing risk assessments related to Client’s sub-merchant accounts in accordance with the Operating Rules. Client authorizes SwervePay to request reports about Client from consumer reporting agencies, and Client shall cooperate to provide all documents requested by SwervePay to perform ongoing monitoring and analysis of Client’s financial condition. If any information is identified in these activities by SwervePay that either prevents SwervePay from being able to establish a sub-merchant account for Client or requires that SwervePay terminate Client’s existing sub-merchant account, SwervePay may immediately cease providing the Payment Processing Services, the other Offerings, and terminate this Agreement by providing notice to Client.
4. Client Warranties and Obligations. Client warrants that the individual entering into this Agreement on behalf of Client is at least 18 years of age and is authorized to enter into this Agreement. Client further warrants (a) it is either a legal resident of the United States, a United States citizen, or a legal business entity authorized to conduct business in one of the states in the United States; (b) the name identified by Client when Client completed the Enrollment Form is Client’s name under which Client operates and will obtain payment transactions; and (c) Client is in good standing, has all necessary licenses and permits to operate its business, and has all necessary right, power, and ability to comply with the terms of this Agreement. Client shall only use the Payment Processing Services within the United State. Client shall provide SwervePay with timely notification of any: (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; (iii) an adverse governmental or regulatory actions taken against Client; (iv) any change in the nature of Client’s products or services that makes the products or services materially different to what was previously represented to SwervePay; and (v) any other adverse changes that would interfere with Client’s ability to fulfill Client’s obligations under this Agreement. Client shall fulfill all obligations to Client’s customers related to any payment transaction and will be solely responsible for and resolve any dispute or complaint with a Payer.
5. Restrictions. Client shall:
b. not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (1) adult content; (2) airline or cruise line; (3) credit counseling or identity protection services; (4) sales to or from operations outside the United States of America and Canada; (5) distressed property sales and marketing; (6) gambling establishments or gambling; (7) card not present tobacco or pharmaceutical sales; (8) goods or services sold through rebate or upsell programs; (9) timeshare resales and related marketing of goods, services or properties; (10) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; or (11) buyer club activities or buyer club memberships.
c. not submit any transaction that: (1) adds any surcharge or other amount to the transaction as a condition of paying with a payment card, except to the extent authorized by the Operating Rules and applicable law; (2) adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately; (3) represents the refinancing or transfer of an existing Payer obligation that is deemed to be uncollectible or arises from the dishonor of a Payer’s personal check or from the acceptance of a Card at a terminal that dispenses scrip; (4) is not a valid transaction between the Client and a bona fide Payer; (5) Client knows or should have known to be fraudulent or not authorized by the Payer; (6) does not result from an act between Client and the Payer; or (7) required a valid authorization and it was not obtained.
d. not submit any refund transaction: (1) that does not correlate to an original sales transaction from the Payer; (2) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Payer for postage paid by the Payer to return merchandise in accordance with a policy applied consistently by Payer to all Client customers, (3) for returned products that were acquired in a cash purchase from Client; (4) that would cause an overdraft; or (5) more than three business days following either: (A) a regulatory requirement granting a Payer’s right to a refund; or (B) a non-disputed Payer request;
e. not transfer or attempt to transfer Client’s financial liability by asking or requiring Payer to waive their dispute rights; and
f. not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
6. Direct Processing Agreement. In accordance with the Operating Rules, SwervePay may need to have Client execute a direct agreement with SwervePay’s payment processor, in the form provided by SwervePay’s processor. Client will execute that direct agreement upon SwervePay’s request. If a direct agreement is deemed required and Client fails to enter into it upon request or the payment processor terminates the direct agreement at any time, SwervePay may cease providing the Offerings and terminate this Agreement by providing written notice to Client.
7. Deposit Account. As part of the Enrollment Form and for any subsequent account Client opens related to the Payment Processing Services, Client shall complete an Authorization for Direct Deposits form and for the duration of this Agreement, Client shall maintain one or more commercial checking account(s) to facilitate payment of payment transactions and automated clearing house network transfers between SwervePay and Client (“Deposit Account”). Client will notify SwervePay in writing any time there is a change in the Deposit Account information that will materially affect the ability of SwervePay to facilitate ACH transactions to Client’s Deposit Account. Client acknowledges that SwervePay is not responsible for any failure of Client to receive an ACH transfer that is caused by Client failing to maintain the Deposit Account or accurate Deposit Account information with SwervePay. Client shall maintain sufficient funds in the Deposit Account to accommodate the payment of any Fees, Chargeback liabilities, charges associated with the purchase of Terminals, or payment of any assessments from the Card Organizations.
8. Distribution of Funds to Client. Within one to two business days of a deposit of the funds from a payment by a Payer of an obligation due to Client into the Settlement Bank Account (“Funds”), SwervePay will have the Member Bank transmit via an ACH transfer to Client’s Deposit Account the Funds owed to Client provided that SwervePay receives a valid authorization code from the applicable Card Organization. Client further acknowledges that availability of the Funds for use by Client is subject to the control of the banking institutions and SwervePay is not responsible for any delay caused by the banking institutions. “Settlement Bank Account” means a bank or escrow account maintained by the Member Bank for receipt of payments made through the Payment Processing Services. “Member Bank” means a financial institution that provides credit card processing services for SwervePay under this Agreement. Each transaction will be considered complete when SwervePay has received the Funds and when such Funds have been accepted by Client’s designated bank or financial institution.
9. Chargebacks. A “Chargeback” occurs if a charge or transaction is reversed or returned for any reason to Client’s sub-merchant account by a Payer or card issuer. Client is solely responsible for the payment of all Chargebacks, and under no circumstances shall SwervePay be responsible for Chargebacks. Further, if a Chargeback occurs for any reason, Client will pay to SwervePay any administrative fees set forth in the Enrollment Form that reflects SwervePay’s involvement in the Chargeback resolution process. For any Chargeback, Client will also pay all credit card, debit card, bank, and ACH transaction fees, fines or penalties and refund all Funds transferred to Client’s Deposit Account corresponding to the Chargeback amount. Client will be notified of the Chargeback and of the amount due. If Client has a reason to dispute the Chargeback, Client has to dispute the Chargeback based on the date provided in the Chargeback notice. SwervePay has no independent obligation to investigate, dispute, or attempt to obtain reversal or adjustment of any Chargeback. SwervePay may deduct, and Client authorizes SwervePay to deduct, the amount of any Chargeback and any associated fees, fines, or penalties assessed by each processor and bank from: (a) Client’s sub-merchant account, (b) Client’s Reserve Account (if applicable), (c) Client’s Deposit Account; or (d) any amounts due to Client. If Client is incurring an excessive number of Chargebacks, SwervePay may increase the Fees, may hold back settlement of funds, establish or increase the fund requirements for a Reserve Account, or terminate this Agreement by providing written notice to Client. Client is responsible for monitoring Client’s monthly Chargeback percentage and developing Chargeback reduction programs as required by the Card Organizations.
10. Correcting Payment Errors. Client authorizes SwervePay, SwervePay’s processor, or Member Bank to debit the Deposit Account or Reserve Account for any misdirected deposits, duplicate deposit, or inadvertent overpayments into Client’s Deposit Account. This debit authorization survives the termination of this Agreement until SwervePay validates that there are no Incorrect Deposits that need to be addressed.
11. Statements and Client Review. SwervePay shall make available to Client statements and transaction reports reflecting Client’s sub-merchant account activity (“Statements”). Client acknowledges that Client has 90 days from when the Statements are made available to Client to review the Statements for accuracy. Subject to Client providing SwervePay with written notice of any dispute or discrepancy related to the Statement within that 90 day period, Client may reasonably dispute a Statement. Upon receipt of the dispute by SwervePay, SwervePay will review the disputed Statement and the parties will work together in good faith to resolve the dispute. If it is determined that SwervePay owes any additional amounts to Client, SwervePay will disperse that amount in accordance with Section 8 of this Exhibit. Client agrees that SwervePay will not be liable to Client or have any obligation to resolve any discrepancy in any Statement that Client does not dispute in accordance with this Section. Client’s failure to follow the dispute resolution procedures in this Section shall result in all such disputes being waived by Client.
12. Reserve Account. Upon notice to Client, SwervePay may elect or be required by SwervePay’s payment processor to establish a non-segregated account at a financial institution to ensure payment of all of Client’s payment or Fee obligations under this Agreement (“Reserve Account”). Client hereby permits SwervePay to fund the Reserve Account through (a) debiting the Deposit Account; (b) withholding Funds and depositing those funds in the Reserve Account; or (c) invoice Client and Client will pay such invoice within 30 days of the date of the invoice. SwervePay may continue to hold the Reserve Account with any amounts in it for up to one year after the termination of this Agreement. Client acknowledges that Client will not receive any interest on the amounts in the Reserve Account and has no right to access the amounts in the Reserve Account until SwervePay closes the Reserve Account and provides all amounts (if any) in the Reserve Account to Client. SwervePay will close the Reserve Account and release any amounts to Client once Client satisfies all payment obligations under this Agreement. The funds in the Reserve Account will be deemed to be the exclusive property of SwervePay, and not the merchant, while SwervePay holds such funds. Without in any way limiting the foregoing, and merely as an additional form of security, Client hereby further grants SwervePay a security interest in the Reserve Funds to the full extent necessary to satisfy any of Client’s obligations to SwervePay. SwervePay may enforce its security interest with or without notice or demand. The security interest(s) granted under this section will continue after termination of this Agreement until Client satisfies all its obligations to SwervePay. Client further agrees to execute and deliver to SwervePay such instruments and documents as SwervePay may reasonably request to confirm and perfect the security interest(s) granted by this Agreement.
13. Investigations and Sharing of Information. If SwervePay reasonably believes that a transaction is in violation of this Agreement, is illegal or otherwise may cause harm to SwervePay, Client, a Payer, or SwervePay’s processor, SwervePay may choose not to authorize, process, or settle the transaction. If SwervePay discovers any such transaction or any other unusual or unexpected transaction activity on Client’s sub-merchant account, Client authorizes SwervePay to hold Funds while SwervePay conducts an investigation into the transaction activity. As part of such investigation and upon SwervePay’s request, Client will provide all documentation requested to support or otherwise validate any transaction being investigated. As part of any SwervePay investigation or if required by law, court order, or a request from law enforcement or a governmental entity, SwervePay may withhold and defer the distribution to Client of any Funds until such investigation concludes, or such legal or governmental requirement no longer applies. If SwervePay reasonably believes that the Payment Processing Services have been used for an illegal, unauthorized or criminal purpose, Client expressly authorizes SwervePay to share information about Client, Client’s sub-merchant account, or Client’s transactions with Client’s banks, Client’s financial institutions, SwervePay’s processor, the Card Organizations, SwervePay’s advisors, and with law enforcement and governmental entities. If SwervePay reasonably believes in good faith that that Client needs to be reported under the Operating Rules, Client acknowledges that SwervePay may report Client to the MATCH list (Member Alert to Control High-Risk), the Card Organizations, any applicable governmental agency or law enforcement agency.
14. Honoring Cards. Client has the responsibility to validate the identity of the Payer and the Payer’s payment card information. If Client determines a payment card is expired or that the account number is listed on a current Electronic Warning Bulletin file or the account number does not match the card’s magnetic strip or chip, Client will not honor the payment card or the transaction. Client shall ensure that the Payer understands Client is responsible for the transaction and all the details related to the charges that will be processed on Payer’s payment card. Client shall maintain return and refund policies that comply with the Operating Rules and disclose to Payers any refund or return policies Client has. Unless a Payer expressly declines a written receipt, Client shall make a receipt available to a Payer for any transaction, whether in writing or via electronic means. Notwithstanding Client’s obligations herein SwervePay shall have the right, in its sole discretion, to decline to process any transaction that it believes is improper, fraudulent, unlawful, or otherwise in violation of any Laws and Regulations.
15. Client’s Security Obligations. Client shall keep all payment card, account information and personal information of a Payer (“Payer Information”) confidential and not disclose such information to a third party except as permitted under the Laws and Standards. Client shall keep Payer Information in a secure manner to prevent disclosure to unauthorized parties and in a manner that complies with all the Laws and Standards. Upon SwervePay’s request, Client will provide proof to SwervePay of Client’s compliance with the Laws and Standards. Client will only use the Payer Information for obtaining payment and not use or disclose the Payer Information for marketing purposes or any other unauthorized use without express consent of the Payer. Client shall immediately notify SwervePay if: (a) Client has reason to believe that Client’s sub-merchant account is no longer secure or being used for unauthorized purposes; or (b) Client discovers or has reason to suspect that a data breach has occurred. In any such event, Client will fully cooperate, at its expense, with all remediation efforts, forensic examination, and mitigation procedures required under the Laws and Standards or reasonably requested by SwervePay, the Card Organizations, SwervePay’s processor, and any of the parties’ banks or financial institutions. Client acknowledges that any failure to comply with the Laws and Standards or the occurrence of any data breach suffered by Client may result in Client being assessed penalties or fines by the Card Organization and Client shall pay those penalties and fines.
16. Third Parties. To the extent Client uses any third party to process, store, receive, transmit, or otherwise have access to Payer Information, Client assumes full responsibility and liability for such third party’s compliance with this Agreement and the Laws and Standards. SwervePay is not liable for the acts or omissions of such third parties. Client further agrees to notify SwervePay of the identity of all such third parties if those third parties relate to the Payment Processing Services and to ensure that such third parties are properly registered, if required to be so, with the Card Organizations. SwervePay may require any such third parties to undergo testing, approval, and certification by SwervePay or SwervePay’s bank or processer. SwervePay may, at any time, also terminate such third parties’ access to or ability to integrate with SwervePay. For the sake of clarity, SwervePay’s affiliates or subcontractors are not considered a third party under this Section.
17. Termination and Suspension Rights. In addition to the termination rights set forth in the Terms and Conditions, SwervePay may suspend providing the Payment Processing Services to Client upon providing notice to Client, if Client: (a) has violated these Sub-Merchant Payment Processing Terms or any of the Laws and Standards; (b) poses an unacceptable credit or fraud risk, as determined by SwervePay, SwervePay’s processor, or the Card Organizations; (c) becomes subject to any investigation or enforcement action by law enforcement or a governmental entity; (d) falls outside of SwervePay’s credit policies; (e) provides any false, incomplete, inaccurate, or misleading information or otherwise engages in fraudulent or illegal conduct; or (f) becomes part of the MATCH list or Terminated Client File maintained by MasterCard. If SwervePay suspends providing the Payment Processing Services for any of the foregoing reasons and the circumstances do not change after 30 days, SwervePay may terminate this Agreement by providing written notice to Client. Upon suspension of the Payment Processing Services or termination of this Agreement for any reason, (i) all pending transactions will be cancelled; (ii) Client shall pay all Fees and any other amounts owed to SwervePay that were accrued prior to the termination; and (iii) Client will remain liable for any and all Chargebacks, credits, adjustments, penalties, fines, costs, and all other amounts that become due prior to or after the suspension or termination. As part of the suspension or termination of the Agreement, SwervePay may establish and maintain a Reserve Account in accordance with Section 14 of this Exhibit. If Client is subject to an investigation or enforcement action at the time Client seeks to close a Client sub-merchant account, SwervePay may retain the Funds in the sub-merchant account or a Reserve Account until the investigation or action is completed.
18. Provisions Specific to American Express. If Client is accepting American Express card payments, Client agrees to the following in connection with its acceptance of American Express cards:
a) Any request to accept American Express cards is subject to approval by American Express. If approved, Client authorizes SwervePay to submit American Express card transactions to American Express. Client also agrees to accept settlement from American Express.
b) The American Express Merchant Operating Guide is incorporated into this Agreement by reference and available at the following link: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf. Client’s acceptance of American Express cards must be in accordance with American Express’s Merchant Operating Guide and any other rules promulgated by American Express, as amended from time to time.
c) Client may opt out of receiving commercial marketing materials from American Express without affecting Client’s ability to accept American Express cards or to receive important transactional or relationship messages from American Express.
d) Client agrees that American Express may use information obtained from Client to screen or monitor Client in connection with American Express card marketing and administrative purposes. In addition, American Express may use data obtained from Client to perform American Express’s responsibilities with the American Express OptBlue Program, to promote the American Express network, to perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes, and important transactional or relationship messages.
e) Client agrees that it may be converted from American Express Card acceptance pursuant to this Agreement to a direct American Express Card acceptance relationship with American Express if and when it becomes a High CV Merchant. “High CV Merchant” means a merchant with either (1) greater than $1 million in American Express Card Transaction volume (including volume from all Merchant locations) in a rolling 12 month period; or (2) greater than $100,000 in American Express Card Transaction volume (including all volume from all merchant locations) in any three consecutive months. Client will be notified if such a conversion is required and upon such conversion, Client will be bound by American Express’s then-current Card Acceptance Agreement and Client agrees that American Express will set pricing and other fees payable by Merchant for American Express Card acceptance.
f) Upon termination of this Agreement or of Client’s ability to accept American Express Cards hereunder, Client agrees to remove American Express identifying marks from Client’s website and wherever else they Client displays them.
g) Client agrees to have a refund policy for transactions on American Express cards that is at least as favorable as the refund policy or transactions on other card types.
h) Client acknowledges that it may opt out of accepting American Express cards at any time without affecting its right to accept other payment cards.
i) American Express is a third party beneficiary to this Agreement with respect to the rights in this Agreement, but not the obligations and will be able to enforce the terms of this Agreement against the Client as it relates to Client’s accepting of American Express card payments.
Client: {{{Customer_Legal_Name}}} | |
By: {{{Customer_Signor}}} | |
Its: {{{Customer_Signor_Title}}} | |
Date of Execution: {{{Todays_Date}}} | |
Address: {{{Customer_Street_Address}}} {{{Customer_City}}} {{{Customer_ZipCode}}} {{{Business_State}}} | |
Email: {{{Customer_Signor_Email}}} |
Effective March 31, 2021 to October 6, 2021
DownloadTable of Contents
SwervePay Offerings Terms and Conditions (Last Updated December 1, 2020)
Please read the following carefully because these SwervePay Offerings Terms and Conditions (“Terms and Conditions”) govern your and your business’s use of the Offerings provided by SwervePay, LLC. By enrolling to use and using the Offerings you are accepting these Terms and Conditions on behalf of your business and acknowledge that this is a legal agreement between your business and SwervePay, LLC, a Delaware Limited Liability Company, with offices at 1150 W. Kilgore Ave., Muncie IN 47305 (“SwervePay”).
If you do not agree with these Terms and Conditions and the Sub-Merchant Payment Processing Terms, attached hereto as Exhibit 1, in their entirety, you and your business cannot enroll to use and cannot actually use any of the Offerings. Your use of any of the Offerings will constitute your agreement to these Terms and Conditions even if you do not physically sign this agreement.
1. Client. “Client” means the business that has enrolled to use and will use the Offerings (as defined in Section 5).
2. Enrollment. “Enrollment Form” means the enrollment form completed by Client to use the Offerings and any applicable attachments to the Enrollment Form referenced therein. To use any of the Offerings, Client will need to complete the applicable Enrollment Form and as part of the enrollment process, indicate Client’s agreement to these Terms and Conditions. The Enrollment Form sets forth the fees for the Offerings. If there is any conflict between the Enrollment Form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Terms, these Terms and Conditions will prevail. The enrollment form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Term, form the agreement between the parties (“Agreement”).
3. Effective Date and Term. The date Client accepts these Terms and Conditions by submitting an Enrollment Form is the effective date of the Agreement (“Effective Date”). The Enrollment Form will specify the duration of the initial term of the Agreement from the Effective Date (“Initial Term”). Thereafter, the term of the Agreement will automatically renew for successive one year periods (each a “Renewal Term”), unless a party provides the other party written notice of termination at least 30 days prior to the renewal date. In which case, this Agreement will automatically terminate at the end of the then current Term. “Term” means the Initial Term and any Renewal Term(s).
4. Payment Processing Services. Upon enrollment and approval by SwervePay in accordance with this Agreement, SwervePay shall provide Client with payment processing services that enable Client to accept payments via payment cards, automated clearing house transactions (“ACH”), and other approved electronic payment transactions into Client’s bank account through electronic means (“Payment Processing Services”). SwervePay will provide and Client will use the Payment Processing Services in accordance with the attached Sub-Merchant Payment Processing Terms. However, for card transactions with cards issued by American Express, Discover, or any other closed loop Card Organization, SwervePay shall provide authorization services only, and shall not have any responsibility for the settlement to client of the funds associated with such card transactions. Instead, Client authorizes settlement of transactions to be made directly by American Express, Discover, or other closed loop Card Organization(s).
5. Offerings and Right to Use To the extent SwervePay makes available to Client and Client elects to use any of the following, SwervePay will permit Client to use (a) communication tools, such as texting, e-mail, chatbots, or other electronic means for Client to communicate with Payers (“Communication Tools”); (b) web-based point of sale system (“Point of Sale Tool”); and (c) payment portals made available over the internet for the purposes of Client to collect payments from Payers (“Portals”). “Payer” means any individual or entity making a payment to Client using payment cards, ACH, or other approved electronic payment transactions. “Offerings” means the Payment Processing Services, Communication Tools, Point of Sale Tool, and Portals to the extent Client is using any of the forgoing. Subject to Client paying all necessary Fees and complying with all the other terms of this Agreement, SwervePay grants Client a non-exclusive and non-transferable subscription right for Client to use the Offerings for the Term.
6. Fees and Taxes. Client shall pay SwervePay the fees for the Offerings as set forth in the Enrollment Form (“Fees”). SwervePay may modify, increase, add different, or otherwise change the Fees by providing Client 30 days’ advance written notice provided in accordance with Section 29. Client’s continued use of the Offerings will indicate Client’s consent to the change in Fees. If Client does not agree to the change in Fees, Client will need to notify SwervePay in writing of the objection and cease all use of the Offerings. Client acknowledges that the Fees do not include any taxes. Client shall collect, report, and remit any taxes required to be collected, paid, or withheld in connection with the Offerings and Terminals. Taxes are Client’s sole responsibility. SwervePay is not responsible for determining whether or not taxes apply or for calculating, collecting, reporting, or remitting any taxes on Client’s behalf. If a tax authority seeks collection from SwervePay of any taxes in connection with this Agreement, then Client shall reimburse SwervePay upon receipt of notice from SwervePay that SwervePay has paid such tax. SwervePay and its process may make available any reports required by law regarding Client to the Internal Revenue Service or any other Federal or state taxing authority.
7. Terminals. SwervePay may permit Client to purchase point of sale payment card processing terminals (“Terminals”). Upon Client delivering payment for the purchase of the Terminals, Client shall own the Terminals. Client acknowledges that the Terminals are manufactured by third parties and are only provided for Client’s convenience. SwervePay provides all Terminals on “AS IS” basis and without any warranty of any kind. Client assumes all responsibility and liability for its use and the security of the Terminals. SwervePay disclaims all liability related to any defects or vulnerability in the Terminals, any third party hacking or otherwise gaining unauthorized access to the Terminals, or any use of the Terminals by Client.
8. Communication Tools. To the extent Client utilizes the Communication Tools, Client shall obtain all necessary consents from the Payers to use the Communication Tools to communicate with the Payer. Client shall comply with any applicable legal obligation, carrier requirements, or industry standards related to communicating with Payers using the Communication Tools. Client shall make public terms and conditions related to Client’s use of the Communication Tools to communicate with the Payer and have each Payer agree to those terms and conditions. To the extent Client uses any Communication Tool that requires the use of a telephone carrier or wireless services provider, Client acknowledges that the applicable messages and associated data will be transmitted through such carriers and providers. Client authorizes SwervePay to disclose all requested information to the carriers and providers to allow Client’s use of the applicable Communication Tools. Client also acknowledges that some of the Communication Tools may require the uploading and transmitting of data and information over the Internet.
9. Implementation. The parties shall cooperate with one another to set up and enable Client’s use of the Offerings. Client acknowledges that the implementation of the Offerings will not begin until SwervePay assigns resources to begin the project. Client shall provide SwervePay with all access to any data, systems and information reasonably required to implement the Offerings. SwervePay will provide all implementation services on a remote basis between the hours of 8 am and 5 pm based on the location of the resources performing the implementation services. Client shall provide at least one qualified Client representative to receive training on the Offerings.
10. Support and Maintenance. After making the Offerings available for Client’s use in a production environment (“Go Live Date”), the parties will cooperate with one another in the administration of the Offerings. Client may contact SwervePay through SwervePay’s designated support communication channels to obtain general support by logging a support ticket. SwervePay will seek to make any Intrusive Changes only during its standard or scheduled maintenance windows. As used in this Section, “Intrusive Changes” means maintenance that will render the Offerings unavailable and “Non-Intrusive Changes” means maintenance that is not intended to make any of the Offerings unavailable. Client acknowledges that SwervePay performs Non-Intrusive Changes as needed.
11. SaaS Offerings. For Offerings either hosted or provided as a software as a service (“SaaS Offerings”), SwervePay may utilize one or more third-party hosting providers to provide the SaaS Offerings and may change hosting providers by providing Client 30 days advance written notice. SwervePay uses reasonable efforts to make any of the SaaS Offerings available. Client acknowledges that SwervePay may make any of the SaaS Offerings unavailable during Scheduled Downtime and for Emergency Maintenance. “Scheduled Downtime” means time required to perform backup, maintenance and restore any of the SaaS Offerings that occurs during SwervePay’s standard maintenance window or during any additional downtime that is scheduled in advance by SwervePay. "Emergency Maintenance" means any corrective action intended to address hardware or software failures, viruses, malware, worms, other disabling code, or other conditions likely to cause degradation, security risks, or interruption, as designated by SwervePay in its reasonable discretion, with or without notice to Client. In using the SaaS Offerings, Client shall not: (a) forge authentication credentials, use the authentication credentials of another user or disclose Client’s authentication credentials to any third party; (b) damage, bypass, break, or otherwise circumvent any of SwervePay’s security mechanisms; (c) use the SaaS Offerings: (i) to attempt to breach, circumvent or hack a third party, (ii) to transmit viruses, malicious, harmful, or deleterious programs or code, (iii) to launch or facilitate a denial of service attack; or (iv) in a manner that otherwise poses a security threat; (d) probe, scan, or test the vulnerability of the SaaS Offerings or monitor data or traffic of the SaaS Offerings without permission from SwervePay; (e) reverse-engineer the SaaS Offerings in order to find limitation, vulnerability or to evade, disable, or render inaccurate accounting billing, capacity limitations, or other functions of the SaaS Offerings; (f) use the SaaS Offerings to encourage, facilitate, engage, or in connection with abuse, harassment, discrimination, fraudulent activities, deceptive practices or other unlawful activities, or harmful or malicious acts; or (g) use the SaaS Offerings in a manner that would violate the Truth in Caller ID Act, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, the Do-Not Call Implementation Act, or any other local, state, federal, or foreign law or regulation. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation, and may terminate this agreement if Client does not cure.
12. Connections. To enable Client’s use of the Offerings, Client shall establish and maintain any necessary connections that meet SwervePay’s standards between Client’s network or systems and the Offerings. Client shall pay all costs related to setting up these connections. Client is responsible for making sure all such equipment functions appropriately and Client shall replace that equipment as needed.
13. Accuracy of Client Data. Client acknowledges that Client is responsible for the accuracy and integrity of the information Client provides through Client’s use of the Offerings and the setting up maintaining of any accounts to use the Offerings. Client is also responsible for adopting procedures to identify and correct errors and omissions in such provided information. Client shall maintain the security of any account user names, passwords and any other login information Client uses to access and use the Offerings and shall promptly notify SwervePay if Client becomes aware of any unauthorized disclosure or use of Client’s account information. Client acknowledges that SwervePay does not review any of Client’s data or information for accuracy, validity, or compliance and SwervePay is not responsible for errors caused by insufficient or inaccurate data. Client shall monitor the contents of any messages being sent through the Offerings.
14. Client’s Compliance with Laws and Standards. Client shall comply with and use the Offerings in a manner that complies with the Operating Rules (as defined in Exhibit 1), the Health Insurance Portability and Accountability Act, the Hi-Tech Act, the Fair Debt Collection Practices Act, the Electronic Funds Transfer Act, the Telephone Consumer Protection Act, the Payment Card Industry Data Security Standards, and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the collection of debts, processing payments, and Client’s business (“Laws and Standards”). Client acknowledges that it has not retained SwervePay to provide guidance, advice, or counsel with respect to compliance with the Laws and Standards. Client takes full responsibility and assumes all risk and liability for Client’s own compliance with the Laws and Standards and Client’s use of the Offerings in compliance with the Laws and Standards. Client will reimburse SwervePay for any fines, legal expenses, reasonable attorneys’ fees, or out of out of pocket costs incurred by SwervePay because of Client’s failure to comply with these Laws and Standards. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation.
15. Proprietary Rights. SwervePay retains sole and exclusive ownership of all right, title and interest in the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides to Client under this Agreement. To the extent necessary to verify this ownership, Client agrees to and hereby does assign to SwervePay all copyrights, patent rights, title, and all other proprietary rights to the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides under this Agreement. Client shall not alter, modify, adapt, translate, copy, reverse engineer, decompile, disassemble, or create any derivative works of the Offerings. Client shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that are contained in the Offerings or any related information, documentation, or deliverables. Client shall not attempt to circumvent or circumvent any user limits, license keys, or other license, timing or use restriction built into the Offerings.
16. Confidentiality. The party receiving information (“Recipient”) from the other party (“Discloser”) shall treat Discloser’s information as confidential (“Confidential Information”) unless: (1) Recipient is able to demonstrate that the Confidential Information was known to Recipient prior to the disclosure; (2) Recipient is able to demonstrate the Confidential Information is part of the public domain; or (3) Recipient’s personnel, without knowledge of the Confidential Information, independently develops the information. Except as permitted under this Agreement, Recipient shall only use the Confidential Information to perform its obligations and shall not disclose or permit any third party to disclose any Confidential Information to any other person. Recipient shall not and shall not permit any third party to reproduce the Confidential Information or any portions thereof unless such reproductions are permitted by or are necessary for Recipient to perform its obligations under this Agreement. Recipient shall ensure that all reproductions of Discloser’s Confidential Information contain (if any) Discloser's proprietary or confidentiality notices in the same manner in which such notices were set forth in or on the original. Recipient will protect the Discloser's Confidential Information in the same manner that it employs to protect its own Confidential Information and in no event, will Recipient use less than reasonable efforts to protect the Discloser's Confidential Information from disclosure. Recipient may disclose the Confidential Information to its employees, subcontractors, advisors, or affiliates, who have been informed of the confidential nature of the Confidential Information and who have obligations of confidentiality that protect such types of information from disclosure to third parties. If Recipient is required by law or court order to disclose Discloser’s Confidential Information, Recipient may disclose the Confidential Information; subject to, where legally permitted, Recipient will: (1) provide Discloser prompt and advance written notice of the requirement; and (2) after providing the notice, reasonably assist Discloser, at Discloser's election and expense, in seeking to obtain an order protecting the information from further disclosure.
17. Use of Data. Client acknowledges that (a) SwervePay provides Offerings under this Agreement that will utilize the data provided by Client to allow Client to collect payment and generate communications with individuals, and to achieve other desired outcomes; and (b) SwervePay collects statistical, system, user experience and other data related to Client’s use of the Offerings for the purposes of: (1) monitoring and improving the functionality of the Offerings; (2) offering trending or statistical De-Identified Data to SwervePay’s user base; and (3) aggregating and using De-Identified Data for SwervePay’s own business purposes as described in any applicable privacy policy for the Offerings. “De-Identified Data” means data that does not identify Client and does not identify any individual or identify any entity. SwervePay shall only use De-Identified Data in a manner that complies with applicable laws. Client authorizes SwervePay to transmit and share data submitted by Client to SwervePay’s processor, applicable financial institutions, Card Organization(s), and/or any other person or entity to facilitate the provision of the Payment Processing Services.
18. SwervePay Warranties. SwervePay warrants that SwervePay uses reasonably qualified personnel to provide the services. Client's sole and exclusive remedy for a breach of this warranty is SwervePay re-performing of the applicable services at no additional cost to Client. SwervePay warrants that SwervePay complies with the applicable Operating Rules and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the processing of payments, and SwervePay’s business. Client acknowledges that Client is not relying upon any other representations, warranties, or promises that are not contained in this Agreement. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, SWERVEPAY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE OFFERINGS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE REGARDING MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. SWERVEPAY DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL MEET CLIENT'S REQUIREMENTS OR THAT THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
19. Sunsetting. SwervePay may cease providing any of the Offerings by providing Client with at least 12 months advance written notice that the applicable Offering is being sunset. After that 12 month period, SwervePay will have no further obligations related to the applicable Offering and will cease charging Client for any applicable Fees associated with the sunsetted offering.
20. Termination for Breach. If either party breaches this Agreement in any manner, the other party may terminate this Agreement by first providing the breaching party with written notice describing the breach in detail and allowing the breaching party 30 days after receipt of the notice to cure the breach. If the breaching party fails to cure, this Agreement will automatically terminate at the end of the 30-day cure period.
21. Effect of Termination. Within 90 days of termination or expiration of this Agreement, Recipient will destroy and purge from its computer systems the Discloser’s Confidential Information (including all copies, excerpts and summaries thereof), except to the extent such Confidential Information is stored pursuant to the Recipient’s standard back-up procedures or retained to meet Recipient’s legal or regulatory requirements or Recipient’s internal audit, document retention or internal compliance requirements. If the Discloser’s Confidential Information is retained as permitted in this Section, the Recipient will continue to abide by the confidentiality obligation of this Agreement until the Recipient ceases retaining such Confidential Information. Recipient shall destroy and purge such Confidential Information within the normal timeframe for deleting and purging such data. Client acknowledges that SwervePay retains transaction records as required by applicable law and the Operating Rules and that information is not considered Client’s Confidential Information. Upon request by the Discloser, the Recipient will certify in writing that the Recipient has complied with its obligations under this Section. Sections 6, Sections 14-16, the disclaimer in Section 18, Sections 21-24, Sections 29-32 of these Terms and Conditions and Section 17 of the attached Sub-Merchant Processing Payment Terms survive termination of this Agreement.
22. Indemnification. Each party shall indemnify and defend the other party, its affiliates, and its officers, directors, and employees, from and against any third party claims, losses, damages, liabilities, lawsuits, and expenses (including reasonable attorneys’ fees, court costs and other defense expenses) arising out of or resulting from: (a) the indemnifying party’s failure to comply with the Operating Rules; (b) the indemnifying party’s breach of any warranty or representation under this Agreement; and (c) a data security breach or unauthorized access or disclosure of Client data or Payer information arising out of any act or omission of the indemnifying party, its affiliates, or contractors. The indemnified party shall notify the indemnifying party of any claim that falls under this Section promptly after the indemnifying party learns of such claim; provided, however, that the indemnifying party will only be relieved of its obligations under this Section due to the failure of the indemnified party to provide such prompt notice to the extent that the failure materially prejudices the indemnifying party in defending such claim. The indemnifying party’s obligations under this Section are conditioned upon the indemnified party: (i) providing all reasonably requested information and cooperation to the indemnifying party; and (ii) giving the indemnifying party sole control of the defense or settlement of such claim, at the indemnifying party’s sole cost and expense; provided, however, that the indemnifying party may not settle any such claim in a manner that requires the indemnified party to admit fault or incur any direct expense without the consent of the indemnified party, which will not be unreasonably withheld or delayed. If the indemnifying party fails to timely undertake the defense of a claim under this Section, each of the indemnified parties may undertake the defense (including settlement) of such claim and the indemnifying party will reimburse the indemnified parties for all such costs.
23. Limitation of Liability. For any causes of action, claims, or assertions arising under or related to this Agreement or to the offerings (each a “Claim”), Swervepay’s liability in the aggregate to Client will not exceed THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO SWERVEPAY PURSUANT TO THIS AGREEMENT during the 6 months prior to the date the Claim is made, regardless of the form of action (whether based on contract, tort, negligence, strict liability, or otherwise). IN NO EVENT WILL SWERVEPAY BE LIABLE TO CLIENT FOR ANY LOST PROFITS OR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES OF ANY TYPE OR NATURE, EVEN IF SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT FEES OR CHARGES OF THE CARD ORGANIZATIONS OR OTHER THIRD PARTIES PASSED THROUGH TO CLIENT PURSUANT TO THIS AGREEMENT WILL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO SWERVEPAY WHEN DETERMINING SWERVEPAY’S LIABILITY UNDER THIS SECTION. CLIENT EXPRESSLY AGREES TO PAY ANY FEES OR ASSESSMENTS LEVIED BY ANY CARD ORGANIZATION AS A RESULT OF ANY ACTIVITY ASSOCIATED WITH CLIENT’S MERCHANT ACCOUNT, AND THAT SWERVEPAY IS NOT LIABLE FOR ANY SUCH FEES OR ASSESSMENTS UNDER ANY CIRCUMSTANCES. FURTHER, UNDER NO CIRCUMSTANCES WILL SWERVEPAY HAVE ANY LIABILITY TO CLIENT FOR PLACING CLIENT ON THE MATCH LIST BASED ON A GOOD FAITH, REASONABLE BELIEF BY SWERVEPAY THAT SUCH PLACEMENT WAS PROPER.
24. Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the state of Indiana in the United States without regard to conflict of law principles. All disputes arising out of or related to this Agreement will be exclusively brought and exclusively maintained in the State courts located in Delaware County, Indiana, or the United States District Court for the Southern District of Indiana, Indianapolis Division (or upon appeal, to the appellate courts of corresponding jurisdiction to such State or Federal court). Each party consents to and waives any objection to the exclusive personal jurisdiction and venue of such State and Federal courts.
25. Government Sales. This section applies to all acquisitions of the Offerings and documentation (collectively or individually for the purposes of this section, the “Government Acquired Products”) by or for the government of the United States of America or other government entity (the “Government”), or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the Government. By accepting delivery of the Government Acquired Products, Client hereby acknowledges that (a) the Offerings and documentation have been developed exclusively at private expenses, (b) the software based Offerings are commercial software and the documentation is commercial software documentation within the meaning of the acquisition regulation(s) applicable to this procurement, (c) the terms and conditions of this Agreement govern the all use and disclosure of the Government Acquired Products, and will supersede any conflicting contractual terms or conditions, and (d) this Agreement meets the Client’s needs or is consistent in all respect with United States law.
26. Force Majeure. Except for Client's payment obligations hereunder, a party will not be responsible for any failure to perform due to acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, strikes, or other causes beyond its reasonable control (each a "Force Majeure Event") provided that such party gives prompt written notice to the other party of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event. If the Force Majeure Event causes a delay of more than three months, either party may terminate an Order or this Agreement without penalty by providing written notice to the other party.
27. No Transfer or Assignment. Without obtaining SwervePay’s advance prior written consent, Client shall not assign, transfer, sublicense, subcontract, or otherwise delegate, in whole or in part any of Client’s rights, duties or obligations under this Agreement, including the right to receive settlement of funds pursuant to this Agreement. Any assignment, transfer, or delegation made by Client without complying with this Section is null and void and will permit SwervePay to terminate this Agreement immediately upon providing written notice to Client. Any, indirect or direct, change of ownership of Client is considered an assignment.
28. Export. Client shall not export or re-export the Offering without the prior written authorization of SwervePay and, as may be required under United States laws and regulations, the prior written authorization of the United States Department of Commerce or any other relevant Federal agency. SwervePay does not represent that the Offerings are appropriate or available for use in other countries. If Client obtains SwervePay’s authorization to export the Offerings, Client is solely responsible for compliance with all applicable laws, including export and import regulations of other countries.
29. Notices to Client. Client consents to do business electronically with SwervePay and receive electronic communications from SwervePay under this Agreement. SwervePay may provide Client notices, disclosures, or other information about the Offerings and Fees charged under this Agreement. Client agrees that SwervePay may provide this information and these notices by making them available on SwervePay’s website, through any mobile application in use by Client, or by sending Client an e-mail to Client’s email of record with SwervePay when Client signed up for any of the Offerings. Notices provided on the website or through a mobile application will be deemed given and received within 24 hours of posting and notices sent to Client’s email will be deemed given and received on the date of transmission. Alternatively, SwervePay may provide written notice by delivering the notice to Client at the most recent address that SwervePay has on file for such Client. Notices provided to Client’s most recent address will be deemed given and received at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if by a reputable overnight delivery service with tracking capabilities. Client may update the address of its principal office by providing notice to SwervePay.
30. Notices to SwervePay. All written notices to SwervePay under this Agreement need to be in writing and delivered to SwervePay at its principal office (currently, 1150 W. Kilgore Ave; Muncie, IN 47305) and to the attention of the “Legal Department”. The notice is deemed received by a party at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S. certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if sent by a reputable overnight delivery service with tracking capabilities. SwervePay may update the address of its principal office by providing notice to Client.
31. Amendments. SwervePay may updates these Terms and Conditions or the attached Sub-Merchant Payment Processing Terms at any time by providing Client with at least 90 days advance written notice. By continuing to use the Offerings after this 90 day period, Client will be deemed to have accepted the updated Terms and Conditions or updated Sub-Merchant Payment Processing Terms (“Updated Terms”). If Client does not agree to the Updated Terms, Client will prior to the expiration of the 90 day period, cease all use of the Offerings and notify SwervePay that Client is terminating this Agreement. If Client does not provide such notice within the 90 day period, Client’s right to terminate under this Section will expire. SwervePay may withdraw the Updated Terms within 30 days of when Client notifies SwervePay of Client’s desire to terminate this Agreement and have the Agreement continue under the unaltered Terms and Conditions or unaltered Sub-Merchant Payment Processing Terms. If SwervePay does not withdraw the Updated Terms, then this Agreement will terminate in accordance with Client’s notice.
32. General. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals, prior agreements, and other communications (oral or written) between the parties relating to the subject matter of this Agreement. A waiver by either party of or a party’s delay exercising its rights under this Agreement does not constitute a waiver of any other provision, breach, or default. If any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions will remain in effect. This Agreement inures to the benefit of and binds the parties, their permitted successors, heirs, and assigns. In all matters relating to this Agreement, Client and SwervePay will act as independent contractors. Neither party shall represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as an agent, employee, franchisee, or in any other capacity. Except as it relates to each of the party’s obligations under Section 22, the parties hereby agree that there are no third party beneficiaries under this Agreement.
Exhibit 1
Sub-Merchant Payment Processing Terms
1. Payment Facilitator Relationship. SwervePay is a Payment Facilitator. “Payment Facilitator” is defined by the Operating Rules and generally refers to a service provider that is registered with a processer to facilitate the processing of payment transactions on behalf of sub-merchants. As a Payment Facilitator, Client acknowledges that SwervePay is not a bank, that there is no fiduciary relationship between Client and SwervePay, and that SwervePay enters into agreements with other processors and banks to provide the Payment Processing Services.
2. Operating Rules. In using the Payment Processing Services, Client shall comply at all times with the Operating Rules. “Operating Rules” means (1) the by-laws, operating regulations and all other rules policies and procedures of MasterCard International, Inc. (“MasterCard”), VISA USA, Inc. (“Visa”), Discover, American Express, and other payment networks (“Card Organizations”); (2) the Payment Card Industry Data Security Standard; (3) the VISA Cardholder Information Security Program and Payment Application Best Practices; (4) the MasterCard Site Data Protection Program and POS Terminal Security Program; (5) American Express’s Data Security Operating Policy; (6) Discover’s Information Security & Compliance Program; and (7) any other program or requirement that may be published or mandated by MasterCard, Visa, Discover, American Express, or other payment networks/card associations.
3. Sub-Merchant Account. To use the Payment Processing Services Client shall work with SwervePay to set up and maintain one or more sub-merchant accounts by: (1) providing all required documentation and information, and (2) cooperating with SwervePay’s due diligence, Office of Foreign Asset Control related inquiries, and underwriting efforts. Client shall provide and maintain accurate and complete information with SwervePay to enable SwervePay to provide the sub-merchant accounts and the Payment Processing Services. Client authorizes SwervePay to share any such information with SwervePay’s processors, the sponsor bank, Client’s financial institutions, the Card Organizations, or to any other person or entity whose involvement is necessary to provide the Payment Processing Services. Client acknowledges that SwervePay will perform ongoing risk assessments related to Client’s sub-merchant accounts in accordance with the Operating Rules. Client authorizes SwervePay to request reports about Client from consumer reporting agencies, and Client shall cooperate to provide all documents requested by SwervePay to perform ongoing monitoring and analysis of Client’s financial condition. If any information is identified in these activities by SwervePay that either prevents SwervePay from being able to establish a sub-merchant account for Client or requires that SwervePay terminate Client’s existing sub-merchant account, SwervePay may immediately cease providing the Payment Processing Services, the other Offerings, and terminate this Agreement by providing notice to Client.
4. Client Warranties and Obligations. Client warrants that the individual entering into this Agreement on behalf of Client is at least 18 years of age and is authorized to enter into this Agreement. Client further warrants (a) it is either a legal resident of the United States, a United States citizen, or a legal business entity authorized to conduct business in one of the states in the United States; (b) the name identified by Client when Client completed the Enrollment Form is Client’s name under which Client operates and will obtain payment transactions; and (c) Client is in good standing, has all necessary licenses and permits to operate its business, and has all necessary right, power, and ability to comply with the terms of this Agreement. Client shall only use the Payment Processing Services within the United State. Client shall provide SwervePay with timely notification of any: (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; (iii) an adverse governmental or regulatory actions taken against Client; (iv) any change in the nature of Client’s products or services that makes the products or services materially different to what was previously represented to SwervePay; and (v) any other adverse changes that would interfere with Client’s ability to fulfill Client’s obligations under this Agreement. Client shall fulfill all obligations to Client’s customers related to any payment transaction and will be solely responsible for and resolve any dispute or complaint with a Payer.
5. Restrictions. Client shall:
b. not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (1) adult content; (2) airline or cruise line; (3) credit counseling or identity protection services; (4) sales to or from operations outside the United States of America and Canada; (5) distressed property sales and marketing; (6) gambling establishments or gambling; (7) card not present tobacco or pharmaceutical sales; (8) goods or services sold through rebate or upsell programs; (9) timeshare resales and related marketing of goods, services or properties; (10) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; or (11) buyer club activities or buyer club memberships.
c. not submit any transaction that: (1) adds any surcharge or other amount to the transaction as a condition of paying with a payment card, except to the extent authorized by the Operating Rules and applicable law; (2) adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately; (3) represents the refinancing or transfer of an existing Payer obligation that is deemed to be uncollectible or arises from the dishonor of a Payer’s personal check or from the acceptance of a Card at a terminal that dispenses scrip; (4) is not a valid transaction between the Client and a bona fide Payer; (5) Client knows or should have known to be fraudulent or not authorized by the Payer; (6) does not result from an act between Client and the Payer; or (7) required a valid authorization and it was not obtained.
d. not submit any refund transaction: (1) that does not correlate to an original sales transaction from the Payer; (2) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Payer for postage paid by the Payer to return merchandise in accordance with a policy applied consistently by Payer to all Client customers, (3) for returned products that were acquired in a cash purchase from Client; (4) that would cause an overdraft; or (5) more than three business days following either: (A) a regulatory requirement granting a Payer’s right to a refund; or (B) a non-disputed Payer request;
e. not transfer or attempt to transfer Client’s financial liability by asking or requiring Payer to waive their dispute rights; and
f. not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
6. Direct Processing Agreement. In accordance with the Operating Rules, SwervePay may need to have Client execute a direct agreement with SwervePay’s payment processor, in the form provided by SwervePay’s processor. Client will execute that direct agreement upon SwervePay’s request. If a direct agreement is deemed required and Client fails to enter into it upon request or the payment processor terminates the direct agreement at any time, SwervePay may cease providing the Offerings and terminate this Agreement by providing written notice to Client.
7. Deposit Account. As part of the Enrollment Form and for any subsequent account Client opens related to the Payment Processing Services, Client shall complete an Authorization for Direct Deposits form and for the duration of this Agreement, Client shall maintain one or more commercial checking account(s) to facilitate payment of payment transactions and automated clearing house network transfers between SwervePay and Client (“Deposit Account”). Client will notify SwervePay in writing any time there is a change in the Deposit Account information that will materially affect the ability of SwervePay to facilitate ACH transactions to Client’s Deposit Account. Client acknowledges that SwervePay is not responsible for any failure of Client to receive an ACH transfer that is caused by Client failing to maintain the Deposit Account or accurate Deposit Account information with SwervePay. Client shall maintain sufficient funds in the Deposit Account to accommodate the payment of any Fees, Chargeback liabilities, charges associated with the purchase of Terminals, or payment of any assessments from the Card Organizations.
8. Distribution of Funds to Client. Within one to two business days of a deposit of the funds from a payment by a Payer of an obligation due to Client into the Settlement Bank Account (“Funds”), SwervePay will have the Member Bank transmit via an ACH transfer to Client’s Deposit Account the Funds owed to Client provided that SwervePay receives a valid authorization code from the applicable Card Organization. Client further acknowledges that availability of the Funds for use by Client is subject to the control of the banking institutions and SwervePay is not responsible for any delay caused by the banking institutions. “Settlement Bank Account” means a bank or escrow account maintained by the Member Bank for receipt of payments made through the Payment Processing Services. “Member Bank” means a financial institution that provides credit card processing services for SwervePay under this Agreement. Each transaction will be considered complete when SwervePay has received the Funds and when such Funds have been accepted by Client’s designated bank or financial institution.
9. Chargebacks. A “Chargeback” occurs if a charge or transaction is reversed or returned for any reason to Client’s sub-merchant account by a Payer or card issuer. Client is solely responsible for the payment of all Chargebacks, and under no circumstances shall SwervePay be responsible for Chargebacks. Further, if a Chargeback occurs for any reason, Client will pay to SwervePay any administrative fees set forth in the Enrollment Form that reflects SwervePay’s involvement in the Chargeback resolution process. For any Chargeback, Client will also pay all credit card, debit card, bank, and ACH transaction fees, fines or penalties and refund all Funds transferred to Client’s Deposit Account corresponding to the Chargeback amount. Client will be notified of the Chargeback and of the amount due. If Client has a reason to dispute the Chargeback, Client has to dispute the Chargeback based on the date provided in the Chargeback notice. SwervePay has no independent obligation to investigate, dispute, or attempt to obtain reversal or adjustment of any Chargeback. SwervePay may deduct, and Client authorizes SwervePay to deduct, the amount of any Chargeback and any associated fees, fines, or penalties assessed by each processor and bank from: (a) Client’s sub-merchant account, (b) Client’s Reserve Account (if applicable), (c) Client’s Deposit Account; or (d) any amounts due to Client. If Client is incurring an excessive number of Chargebacks, SwervePay may increase the Fees, may hold back settlement of funds, establish or increase the fund requirements for a Reserve Account, or terminate this Agreement by providing written notice to Client. Client is responsible for monitoring Client’s monthly Chargeback percentage and developing Chargeback reduction programs as required by the Card Organizations.
10. Correcting Payment Errors. Client authorizes SwervePay, SwervePay’s processor, or Member Bank to debit the Deposit Account or Reserve Account for any misdirected deposits, duplicate deposit, or inadvertent overpayments into Client’s Deposit Account. This debit authorization survives the termination of this Agreement until SwervePay validates that there are no Incorrect Deposits that need to be addressed.
11. Statements and Client Review. SwervePay shall make available to Client statements and transaction reports reflecting Client’s sub-merchant account activity (“Statements”). Client acknowledges that Client has 90 days from when the Statements are made available to Client to review the Statements for accuracy. Subject to Client providing SwervePay with written notice of any dispute or discrepancy related to the Statement within that 90 day period, Client may reasonably dispute a Statement. Upon receipt of the dispute by SwervePay, SwervePay will review the disputed Statement and the parties will work together in good faith to resolve the dispute. If it is determined that SwervePay owes any additional amounts to Client, SwervePay will disperse that amount in accordance with Section 8 of this Exhibit. Client agrees that SwervePay will not be liable to Client or have any obligation to resolve any discrepancy in any Statement that Client does not dispute in accordance with this Section. Client’s failure to follow the dispute resolution procedures in this Section shall result in all such disputes being waived by Client.
12. Reserve Account. Upon notice to Client, SwervePay may elect or be required by SwervePay’s payment processor to establish a non-segregated account at a financial institution to ensure payment of all of Client’s payment or Fee obligations under this Agreement (“Reserve Account”). Client hereby permits SwervePay to fund the Reserve Account through (a) debiting the Deposit Account; (b) withholding Funds and depositing those funds in the Reserve Account; or (c) invoice Client and Client will pay such invoice within 30 days of the date of the invoice. SwervePay may continue to hold the Reserve Account with any amounts in it for up to one year after the termination of this Agreement. Client acknowledges that Client will not receive any interest on the amounts in the Reserve Account and has no right to access the amounts in the Reserve Account until SwervePay closes the Reserve Account and provides all amounts (if any) in the Reserve Account to Client. SwervePay will close the Reserve Account and release any amounts to Client once Client satisfies all payment obligations under this Agreement. The funds in the Reserve Account will be deemed to be the exclusive property of SwervePay, and not the merchant, while SwervePay holds such funds. Without in any way limiting the foregoing, and merely as an additional form of security, Client hereby further grants SwervePay a security interest in the Reserve Funds to the full extent necessary to satisfy any of Client’s obligations to SwervePay. SwervePay may enforce its security interest with or without notice or demand. The security interest(s) granted under this section will continue after termination of this Agreement until Client satisfies all its obligations to SwervePay. Client further agrees to execute and deliver to SwervePay such instruments and documents as SwervePay may reasonably request to confirm and perfect the security interest(s) granted by this Agreement.
13. Investigations and Sharing of Information. If SwervePay reasonably believes that a transaction is in violation of this Agreement, is illegal or otherwise may cause harm to SwervePay, Client, a Payer, or SwervePay’s processor, SwervePay may choose not to authorize, process, or settle the transaction. If SwervePay discovers any such transaction or any other unusual or unexpected transaction activity on Client’s sub-merchant account, Client authorizes SwervePay to hold Funds while SwervePay conducts an investigation into the transaction activity. As part of such investigation and upon SwervePay’s request, Client will provide all documentation requested to support or otherwise validate any transaction being investigated. As part of any SwervePay investigation or if required by law, court order, or a request from law enforcement or a governmental entity, SwervePay may withhold and defer the distribution to Client of any Funds until such investigation concludes, or such legal or governmental requirement no longer applies. If SwervePay reasonably believes that the Payment Processing Services have been used for an illegal, unauthorized or criminal purpose, Client expressly authorizes SwervePay to share information about Client, Client’s sub-merchant account, or Client’s transactions with Client’s banks, Client’s financial institutions, SwervePay’s processor, the Card Organizations, SwervePay’s advisors, and with law enforcement and governmental entities. If SwervePay reasonably believes in good faith that that Client needs to be reported under the Operating Rules, Client acknowledges that SwervePay may report Client to the MATCH list (Member Alert to Control High-Risk), the Card Organizations, any applicable governmental agency or law enforcement agency.
14. Honoring Cards. Client has the responsibility to validate the identity of the Payer and the Payer’s payment card information. If Client determines a payment card is expired or that the account number is listed on a current Electronic Warning Bulletin file or the account number does not match the card’s magnetic strip or chip, Client will not honor the payment card or the transaction. Client shall ensure that the Payer understands Client is responsible for the transaction and all the details related to the charges that will be processed on Payer’s payment card. Client shall maintain return and refund policies that comply with the Operating Rules and disclose to Payers any refund or return policies Client has. Unless a Payer expressly declines a written receipt, Client shall make a receipt available to a Payer for any transaction, whether in writing or via electronic means. Notwithstanding Client’s obligations herein SwervePay shall have the right, in its sole discretion, to decline to process any transaction that it believes is improper, fraudulent, unlawful, or otherwise in violation of any Laws and Regulations.
15. Client’s Security Obligations. Client shall keep all payment card, account information and personal information of a Payer (“Payer Information”) confidential and not disclose such information to a third party except as permitted under the Laws and Standards. Client shall keep Payer Information in a secure manner to prevent disclosure to unauthorized parties and in a manner that complies with all the Laws and Standards. Upon SwervePay’s request, Client will provide proof to SwervePay of Client’s compliance with the Laws and Standards. Client will only use the Payer Information for obtaining payment and not use or disclose the Payer Information for marketing purposes or any other unauthorized use without express consent of the Payer. Client shall immediately notify SwervePay if: (a) Client has reason to believe that Client’s sub-merchant account is no longer secure or being used for unauthorized purposes; or (b) Client discovers or has reason to suspect that a data breach has occurred. In any such event, Client will fully cooperate, at its expense, with all remediation efforts, forensic examination, and mitigation procedures required under the Laws and Standards or reasonably requested by SwervePay, the Card Organizations, SwervePay’s processor, and any of the parties’ banks or financial institutions. Client acknowledges that any failure to comply with the Laws and Standards or the occurrence of any data breach suffered by Client may result in Client being assessed penalties or fines by the Card Organization and Client shall pay those penalties and fines.
16. Third Parties. To the extent Client uses any third party to process, store, receive, transmit, or otherwise have access to Payer Information, Client assumes full responsibility and liability for such third party’s compliance with this Agreement and the Laws and Standards. SwervePay is not liable for the acts or omissions of such third parties. Client further agrees to notify SwervePay of the identity of all such third parties if those third parties relate to the Payment Processing Services and to ensure that such third parties are properly registered, if required to be so, with the Card Organizations. SwervePay may require any such third parties to undergo testing, approval, and certification by SwervePay or SwervePay’s bank or processer. SwervePay may, at any time, also terminate such third parties’ access to or ability to integrate with SwervePay. For the sake of clarity, SwervePay’s affiliates or subcontractors are not considered a third party under this Section.
17. Termination and Suspension Rights. In addition to the termination rights set forth in the Terms and Conditions, SwervePay may suspend providing the Payment Processing Services to Client upon providing notice to Client, if Client: (a) has violated these Sub-Merchant Payment Processing Terms or any of the Laws and Standards; (b) poses an unacceptable credit or fraud risk, as determined by SwervePay, SwervePay’s processor, or the Card Organizations; (c) becomes subject to any investigation or enforcement action by law enforcement or a governmental entity; (d) falls outside of SwervePay’s credit policies; (e) provides any false, incomplete, inaccurate, or misleading information or otherwise engages in fraudulent or illegal conduct; or (f) becomes part of the MATCH list or Terminated Client File maintained by MasterCard. If SwervePay suspends providing the Payment Processing Services for any of the foregoing reasons and the circumstances do not change after 30 days, SwervePay may terminate this Agreement by providing written notice to Client. Upon suspension of the Payment Processing Services or termination of this Agreement for any reason, (i) all pending transactions will be cancelled; (ii) Client shall pay all Fees and any other amounts owed to SwervePay that were accrued prior to the termination; and (iii) Client will remain liable for any and all Chargebacks, credits, adjustments, penalties, fines, costs, and all other amounts that become due prior to or after the suspension or termination. As part of the suspension or termination of the Agreement, SwervePay may establish and maintain a Reserve Account in accordance with Section 14 of this Exhibit. If Client is subject to an investigation or enforcement action at the time Client seeks to close a Client sub-merchant account, SwervePay may retain the Funds in the sub-merchant account or a Reserve Account until the investigation or action is completed.
18. Provisions Specific to American Express. If Client is accepting American Express card payments, Client agrees to the following in connection with its acceptance of American Express cards:
a) Any request to accept American Express cards is subject to approval by American Express. If approved, Client authorizes SwervePay to submit American Express card transactions to American Express. Client also agrees to accept settlement from American Express.
b) The American Express Merchant Operating Guide is incorporated into this Agreement by reference and available at the following link: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf. Client’s acceptance of American Express cards must be in accordance with American Express’s Merchant Operating Guide and any other rules promulgated by American Express, as amended from time to time.
c) Client may opt out of receiving commercial marketing materials from American Express without affecting Client’s ability to accept American Express cards or to receive important transactional or relationship messages from American Express.
d) Client agrees that American Express may use information obtained from Client to screen or monitor Client in connection with American Express card marketing and administrative purposes. In addition, American Express may use data obtained from Client to perform American Express’s responsibilities with the American Express OptBlue Program, to promote the American Express network, to perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes, and important transactional or relationship messages.
e) Client agrees that it may be converted from American Express Card acceptance pursuant to this Agreement to a direct American Express Card acceptance relationship with American Express if and when it becomes a High CV Merchant. “High CV Merchant” means a merchant with either (1) greater than $1 million in American Express Card Transaction volume (including volume from all Merchant locations) in a rolling 12 month period; or (2) greater than $100,000 in American Express Card Transaction volume (including all volume from all merchant locations) in any three consecutive months. Client will be notified if such a conversion is required and upon such conversion, Client will be bound by American Express’s then-current Card Acceptance Agreement and Client agrees that American Express will set pricing and other fees payable by Merchant for American Express Card acceptance.
f) Upon termination of this Agreement or of Client’s ability to accept American Express Cards hereunder, Client agrees to remove American Express identifying marks from Client’s website and wherever else they Client displays them.
g) Client agrees to have a refund policy for transactions on American Express cards that is at least as favorable as the refund policy or transactions on other card types.
h) Client acknowledges that it may opt out of accepting American Express cards at any time without affecting its right to accept other payment cards.
i) American Express is a third party beneficiary to this Agreement with respect to the rights in this Agreement, but not the obligations and will be able to enforce the terms of this Agreement against the Client as it relates to Client’s accepting of American Express card payments.
Client: {{{Customer_Legal_Name}}} | |
By: {{{Customer_Signor}}} | |
Its: {{{Customer_Signor_Title}}} | |
Date of Execution: {{{Todays_Date}}} | |
Address: {{{Customer_Street_Address}}} {{{Customer_City}}} {{{Customer_State}}} {{{Customer_ZipCode}}} | |
Email: {{{Customer_Signor_Email}}} |
Effective August 19, 2020 to March 31, 2021
DownloadTable of Contents
SwervePay Offerings Terms and Conditions (Last Updated August 13, 2020)
Please read the following carefully because these SwervePay Offerings Terms and Conditions (“Terms and Conditions”) govern your and your business’s use of the Offerings provided by SwervePay, LLC. By enrolling to use and using the Offerings you are accepting these Terms and Conditions on behalf of your business and acknowledge that this is a legal agreement between your business and SwervePay, LLC, a Delaware Limited Liability Company, with offices at 1150 W. Kilgore Ave., Muncie IN 47305 (“SwervePay”).
If you do not agree with these Terms and Conditions and the Sub-Merchant Payment Processing Terms, attached hereto as Exhibit 1, in their entirety, you and your business cannot enroll to use and cannot actually use any of the Offerings. Your use of any of the Offerings will constitute your agreement to these Terms and Conditions even if you do not physically sign this agreement.
1. Client. “Client” means the business that has enrolled to use and will use the Offerings (as defined in Section 5).
2. Enrollment. “Enrollment Form” means the enrollment form completed by Client to use the Offerings and any applicable attachments to the Enrollment Form referenced therein. To use any of the Offerings, Client will need to complete the applicable Enrollment Form and as part of the enrollment process, indicate Client’s agreement to these Terms and Conditions. The Enrollment Form sets forth the fees for the Offerings. If there is any conflict between the Enrollment Form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Terms, these Terms and Conditions will prevail. The enrollment form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Term, form the agreement between the parties (“Agreement”).
3. Effective Date and Term. The date Client accepts these Terms and Conditions by submitting an Enrollment Form is the effective date of the Agreement (“Effective Date”). The Enrollment Form will specify the duration of the initial term of the Agreement from the Effective Date (“Initial Term”). Thereafter, the term of the Agreement will automatically renew for successive one year periods (each a “Renewal Term”), unless a party provides the other party written notice of termination at least 30 days prior to the renewal date. In which case, this Agreement will automatically terminate at the end of the then current Term. “Term” means the Initial Term and any Renewal Term(s).
4. Payment Processing Services. Upon enrollment and approval by SwervePay in accordance with this Agreement, SwervePay shall provide Client with payment processing services that enable Client to accept payments via payment cards, automated clearing house transactions (“ACH”), and other approved electronic payment transactions into Client’s bank account through electronic means (“Payment Processing Services”). SwervePay will provide and Client will use the Payment Processing Services in accordance with the attached Sub-Merchant Payment Processing Terms. However, for card transactions with cards issued by American Express, Discover, or any other closed loop Card Organization, SwervePay shall provide authorization services only, and shall not have any responsibility for the settlement to client of the funds associated with such card transactions. Instead, Client authorizes settlement of transactions to be made directly by American Express, Discover, or other closed loop Card Organization(s).
5. Offerings and Right to Use To the extent SwervePay makes available to Client and Client elects to use any of the following, SwervePay will permit Client to use (a) communication tools, such as texting, e-mail, chatbots, or other electronic means for Client to communicate with Payers (“Communication Tools”); (b) web-based point of sale system (“Point of Sale Tool”); and (c) payment portals made available over the internet for the purposes of Client to collect payments from Payers (“Portals”). “Payer” means any individual or entity making a payment to Client using payment cards, ACH, or other approved electronic payment transactions. “Offerings” means the Payment Processing Services, Communication Tools, Point of Sale Tool, and Portals to the extent Client is using any of the forgoing. Subject to Client paying all necessary Fees and complying with all the other terms of this Agreement, SwervePay grants Client a non-exclusive and non-transferable subscription right for Client to use the Offerings for the Term.
6. Fees and Taxes. Client shall pay SwervePay the fees for the Offerings as set forth in the Enrollment Form (“Fees”). SwervePay may modify, increase, add different, or otherwise change the Fees by providing Client 30 days’ advance written notice provided in accordance with Section 29. Client’s continued use of the Offerings will indicate Client’s consent to the change in Fees. If Client does not agree to the change in Fees, Client will need to notify SwervePay in writing of the objection and cease all use of the Offerings. Client acknowledges that the Fees do not include any taxes. Client shall collect, report, and remit any taxes required to be collected, paid, or withheld in connection with the Offerings and Terminals. Taxes are Client’s sole responsibility. SwervePay is not responsible for determining whether or not taxes apply or for calculating, collecting, reporting, or remitting any taxes on Client’s behalf. If a tax authority seeks collection from SwervePay of any taxes in connection with this Agreement, then Client shall reimburse SwervePay upon receipt of notice from SwervePay that SwervePay has paid such tax. SwervePay and its process may make available any reports required by law regarding Client to the Internal Revenue Service or any other Federal or state taxing authority.
7. Terminals. SwervePay may permit Client to purchase point of sale payment card processing terminals (“Terminals”). Upon Client delivering payment for the purchase of the Terminals, Client shall own the Terminals. Client acknowledges that the Terminals are manufactured by third parties and are only provided for Client’s convenience. SwervePay provides all Terminals on “AS IS” basis and without any warranty of any kind. Client assumes all responsibility and liability for its use and the security of the Terminals. SwervePay disclaims all liability related to any defects or vulnerability in the Terminals, any third party hacking or otherwise gaining unauthorized access to the Terminals, or any use of the Terminals by Client.
8. Communication Tools. To the extent Client utilizes the Communication Tools, Client shall obtain all necessary consents from the Payers to use the Communication Tools to communicate with the Payer. Client shall comply with any applicable legal obligation, carrier requirements, or industry standards related to communicating with Payers using the Communication Tools. Client shall make public terms and conditions related to Client’s use of the Communication Tools to communicate with the Payer and have each Payer agree to those terms and conditions. To the extent Client uses any Communication Tool that requires the use of a telephone carrier or wireless services provider, Client acknowledges that the applicable messages and associated data will be transmitted through such carriers and providers. Client authorizes SwervePay to disclose all requested information to the carriers and providers to allow Client’s use of the applicable Communication Tools. Client also acknowledges that some of the Communication Tools may require the uploading and transmitting of data and information over the Internet.
9. Implementation. The parties shall cooperate with one another to set up and enable Client’s use of the Offerings. Client acknowledges that the implementation of the Offerings will not begin until SwervePay assigns resources to begin the project. Client shall provide SwervePay with all access to any data, systems and information reasonably required to implement the Offerings. SwervePay will provide all implementation services on a remote basis between the hours of 8 am and 5 pm based on the location of the resources performing the implementation services. Client shall provide at least one qualified Client representative to receive training on the Offerings.
10. Support and Maintenance. After making the Offerings available for Client’s use in a production environment (“Go Live Date”), the parties will cooperate with one another in the administration of the Offerings. Client may contact SwervePay through SwervePay’s designated support communication channels to obtain general support by logging a support ticket. SwervePay will seek to make any Intrusive Changes only during its standard or scheduled maintenance windows. As used in this Section, “Intrusive Changes” means maintenance that will render the Offerings unavailable and “Non-Intrusive Changes” means maintenance that is not intended to make any of the Offerings unavailable. Client acknowledges that SwervePay performs Non-Intrusive Changes as needed.
11. SaaS Offerings. For Offerings either hosted or provided as a software as a service (“SaaS Offerings”), SwervePay may utilize one or more third-party hosting providers to provide the SaaS Offerings and may change hosting providers by providing Client 30 days advance written notice. SwervePay uses reasonable efforts to make any of the SaaS Offerings available. Client acknowledges that SwervePay may make any of the SaaS Offerings unavailable during Scheduled Downtime and for Emergency Maintenance. “Scheduled Downtime” means time required to perform backup, maintenance and restore any of the SaaS Offerings that occurs during SwervePay’s standard maintenance window or during any additional downtime that is scheduled in advance by SwervePay. "Emergency Maintenance" means any corrective action intended to address hardware or software failures, viruses, malware, worms, other disabling code, or other conditions likely to cause degradation, security risks, or interruption, as designated by SwervePay in its reasonable discretion, with or without notice to Client. In using the SaaS Offerings, Client shall not: (a) forge authentication credentials, use the authentication credentials of another user or disclose Client’s authentication credentials to any third party; (b) damage, bypass, break, or otherwise circumvent any of SwervePay’s security mechanisms; (c) use the SaaS Offerings: (i) to attempt to breach, circumvent or hack a third party, (ii) to transmit viruses, malicious, harmful, or deleterious programs or code, (iii) to launch or facilitate a denial of service attack; or (iv) in a manner that otherwise poses a security threat; (d) probe, scan, or test the vulnerability of the SaaS Offerings or monitor data or traffic of the SaaS Offerings without permission from SwervePay; (e) reverse-engineer the SaaS Offerings in order to find limitation, vulnerability or to evade, disable, or render inaccurate accounting billing, capacity limitations, or other functions of the SaaS Offerings; (f) use the SaaS Offerings to encourage, facilitate, engage, or in connection with abuse, harassment, discrimination, fraudulent activities, deceptive practices or other unlawful activities, or harmful or malicious acts; or (g) use the SaaS Offerings in a manner that would violate the Truth in Caller ID Act, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, the Do-Not Call Implementation Act, or any other local, state, federal, or foreign law or regulation. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation, and may terminate this agreement if Client does not cure.
12. Connections. To enable Client’s use of the Offerings, Client shall establish and maintain any necessary connections that meet SwervePay’s standards between Client’s network or systems and the Offerings. Client shall pay all costs related to setting up these connections. Client is responsible for making sure all such equipment functions appropriately and Client shall replace that equipment as needed.
13. Accuracy of Client Data. Client acknowledges that Client is responsible for the accuracy and integrity of the information Client provides through Client’s use of the Offerings and the setting up maintaining of any accounts to use the Offerings. Client is also responsible for adopting procedures to identify and correct errors and omissions in such provided information. Client shall maintain the security of any account user names, passwords and any other login information Client uses to access and use the Offerings and shall promptly notify SwervePay if Client becomes aware of any unauthorized disclosure or use of Client’s account information. Client acknowledges that SwervePay does not review any of Client’s data or information for accuracy, validity, or compliance and SwervePay is not responsible for errors caused by insufficient or inaccurate data. Client shall monitor the contents of any messages being sent through the Offerings.
14. Client’s Compliance with Laws and Standards. Client shall comply with and use the Offerings in a manner that complies with the Operating Rules (as defined in Exhibit 1), the Health Insurance Portability and Accountability Act, the Hi-Tech Act, the Fair Debt Collection Practices Act, the Electronic Funds Transfer Act, the Telephone Consumer Protection Act, the Payment Card Industry Data Security Standards, and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the collection of debts, processing payments, and Client’s business (“Laws and Standards”). Client acknowledges that it has not retained SwervePay to provide guidance, advice, or counsel with respect to compliance with the Laws and Standards. Client takes full responsibility and assumes all risk and liability for Client’s own compliance with the Laws and Standards and Client’s use of the Offerings in compliance with the Laws and Standards. Client will reimburse SwervePay for any fines, legal expenses, reasonable attorneys’ fees, or out of out of pocket costs incurred by SwervePay because of Client’s failure to comply with these Laws and Standards. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation.
15. Proprietary Rights. SwervePay retains sole and exclusive ownership of all right, title and interest in the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides to Client under this Agreement. To the extent necessary to verify this ownership, Client agrees to and hereby does assign to SwervePay all copyrights, patent rights, title, and all other proprietary rights to the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides under this Agreement. Client shall not alter, modify, adapt, translate, copy, reverse engineer, decompile, disassemble, or create any derivative works of the Offerings. Client shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that are contained in the Offerings or any related information, documentation, or deliverables. Client shall not attempt to circumvent or circumvent any user limits, license keys, or other license, timing or use restriction built into the Offerings.
16. Confidentiality. The party receiving information (“Recipient”) from the other party (“Discloser”) shall treat Discloser’s information as confidential (“Confidential Information”) unless: (1) Recipient is able to demonstrate that the Confidential Information was known to Recipient prior to the disclosure; (2) Recipient is able to demonstrate the Confidential Information is part of the public domain; or (3) Recipient’s personnel, without knowledge of the Confidential Information, independently develops the information. Except as permitted under this Agreement, Recipient shall only use the Confidential Information to perform its obligations and shall not disclose or permit any third party to disclose any Confidential Information to any other person. Recipient shall not and shall not permit any third party to reproduce the Confidential Information or any portions thereof unless such reproductions are permitted by or are necessary for Recipient to perform its obligations under this Agreement. Recipient shall ensure that all reproductions of Discloser’s Confidential Information contain (if any) Discloser's proprietary or confidentiality notices in the same manner in which such notices were set forth in or on the original. Recipient will protect the Discloser's Confidential Information in the same manner that it employs to protect its own Confidential Information and in no event, will Recipient use less than reasonable efforts to protect the Discloser's Confidential Information from disclosure. Recipient may disclose the Confidential Information to its employees, subcontractors, advisors, or affiliates, who have been informed of the confidential nature of the Confidential Information and who have obligations of confidentiality that protect such types of information from disclosure to third parties. If Recipient is required by law or court order to disclose Discloser’s Confidential Information, Recipient may disclose the Confidential Information; subject to, where legally permitted, Recipient will: (1) provide Discloser prompt and advance written notice of the requirement; and (2) after providing the notice, reasonably assist Discloser, at Discloser's election and expense, in seeking to obtain an order protecting the information from further disclosure.
17. Use of Data. Client acknowledges that (a) SwervePay provides Offerings under this Agreement that will utilize the data provided by Client to allow Client to collect payment and generate communications with individuals, and to achieve other desired outcomes; and (b) SwervePay collects statistical, system, user experience and other data related to Client’s use of the Offerings for the purposes of: (1) monitoring and improving the functionality of the Offerings; (2) offering trending or statistical De-Identified Data to SwervePay’s user base; and (3) aggregating and using De-Identified Data for SwervePay’s own business purposes as described in any applicable privacy policy for the Offerings. “De-Identified Data” means data that does not identify Client and does not identify any individual or identify any entity. SwervePay shall only use De-Identified Data in a manner that complies with applicable laws. Client authorizes SwervePay to transmit and share data submitted by Client to SwervePay’s processor, applicable financial institutions, Card Organization(s), and/or any other person or entity to facilitate the provision of the Payment Processing Services.
18. SwervePay Warranties. SwervePay warrants that SwervePay uses reasonably qualified personnel to provide the services. Client's sole and exclusive remedy for a breach of this warranty is SwervePay re-performing of the applicable services at no additional cost to Client. SwervePay warrants that SwervePay complies with the applicable Operating Rules and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the processing of payments, and SwervePay’s business. Client acknowledges that Client is not relying upon any other representations, warranties, or promises that are not contained in this Agreement. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, SWERVEPAY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE OFFERINGS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE REGARDING MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. SWERVEPAY DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL MEET CLIENT'S REQUIREMENTS OR THAT THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
19. Sunsetting. SwervePay may cease providing any of the Offerings by providing Client with at least 12 months advance written notice that the applicable Offering is being sunset. After that 12 month period, SwervePay will have no further obligations related to the applicable Offering and will cease charging Client for any applicable Fees associated with the sunsetted offering.
20. Termination for Breach. If either party breaches this Agreement in any manner, the other party may terminate this Agreement by first providing the breaching party with written notice describing the breach in detail and allowing the breaching party 30 days after receipt of the notice to cure the breach. If the breaching party fails to cure, this Agreement will automatically terminate at the end of the 30-day cure period.
21. Effect of Termination. Within 90 days of termination or expiration of this Agreement, Recipient will destroy and purge from its computer systems the Discloser’s Confidential Information (including all copies, excerpts and summaries thereof), except to the extent such Confidential Information is stored pursuant to the Recipient’s standard back-up procedures or retained to meet Recipient’s legal or regulatory requirements or Recipient’s internal audit, document retention or internal compliance requirements. If the Discloser’s Confidential Information is retained as permitted in this Section, the Recipient will continue to abide by the confidentiality obligation of this Agreement until the Recipient ceases retaining such Confidential Information. Recipient shall destroy and purge such Confidential Information within the normal timeframe for deleting and purging such data. Client acknowledges that SwervePay retains transaction records as required by applicable law and the Operating Rules and that information is not considered Client’s Confidential Information. Upon request by the Discloser, the Recipient will certify in writing that the Recipient has complied with its obligations under this Section. Sections 6, Sections 14-16, the disclaimer in Section 18, Sections 21-24, Sections 29-32 of these Terms and Conditions and Section 17 of the attached Sub-Merchant Processing Payment Terms survive termination of this Agreement.
22. Indemnification. Each party shall indemnify and defend the other party, its affiliates, and its officers, directors, and employees, from and against any third party claims, losses, damages, liabilities, lawsuits, and expenses (including reasonable attorneys’ fees, court costs and other defense expenses) arising out of or resulting from: (a) the indemnifying party’s failure to comply with the Operating Rules; (b) the indemnifying party’s breach of any warranty or representation under this Agreement; and (c) a data security breach or unauthorized access or disclosure of Client data or Payer information arising out of any act or omission of the indemnifying party, its affiliates, or contractors. The indemnified party shall notify the indemnifying party of any claim that falls under this Section promptly after the indemnifying party learns of such claim; provided, however, that the indemnifying party will only be relieved of its obligations under this Section due to the failure of the indemnified party to provide such prompt notice to the extent that the failure materially prejudices the indemnifying party in defending such claim. The indemnifying party’s obligations under this Section are conditioned upon the indemnified party: (i) providing all reasonably requested information and cooperation to the indemnifying party; and (ii) giving the indemnifying party sole control of the defense or settlement of such claim, at the indemnifying party’s sole cost and expense; provided, however, that the indemnifying party may not settle any such claim in a manner that requires the indemnified party to admit fault or incur any direct expense without the consent of the indemnified party, which will not be unreasonably withheld or delayed. If the indemnifying party fails to timely undertake the defense of a claim under this Section, each of the indemnified parties may undertake the defense (including settlement) of such claim and the indemnifying party will reimburse the indemnified parties for all such costs.
23. Limitation of Liability. For any causes of action, claims, or assertions arising under or related to this Agreement or to the offerings (each a “Claim”), Swervepay’s liability in the aggregate to Client will not exceed THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO SWERVEPAY PURSUANT TO THIS AGREEMENT during the 6 months prior to the date the Claim is made, regardless of the form of action (whether based on contract, tort, negligence, strict liability, or otherwise). IN NO EVENT WILL SWERVEPAY BE LIABLE TO CLIENT FOR ANY LOST PROFITS OR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES OF ANY TYPE OR NATURE, EVEN IF SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT FEES OR CHARGES OF THE CARD ORGANIZATIONS OR OTHER THIRD PARTIES PASSED THROUGH TO CLIENT PURSUANT TO THIS AGREEMENT WILL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO SWERVEPAY WHEN DETERMINING SWERVEPAY’S LIABILITY UNDER THIS SECTION. CLIENT EXPRESSLY AGREES TO PAY ANY FEES OR ASSESSMENTS LEVIED BY ANY CARD ORGANIZATION AS A RESULT OF ANY ACTIVITY ASSOCIATED WITH CLIENT’S MERCHANT ACCOUNT, AND THAT SWERVEPAY IS NOT LIABLE FOR ANY SUCH FEES OR ASSESSMENTS UNDER ANY CIRCUMSTANCES. FURTHER, UNDER NO CIRCUMSTANCES WILL SWERVEPAY HAVE ANY LIABILITY TO CLIENT FOR PLACING CLIENT ON THE MATCH LIST BASED ON A GOOD FAITH, REASONABLE BELIEF BY SWERVEPAY THAT SUCH PLACEMENT WAS PROPER.
24. Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the state of Indiana in the United States without regard to conflict of law principles. All disputes arising out of or related to this Agreement will be exclusively brought and exclusively maintained in the State courts located in Delaware County, Indiana, or the United States District Court for the Southern District of Indiana, Indianapolis Division (or upon appeal, to the appellate courts of corresponding jurisdiction to such State or Federal court). Each party consents to and waives any objection to the exclusive personal jurisdiction and venue of such State and Federal courts.
25. Government Sales. This section applies to all acquisitions of the Offerings and documentation (collectively or individually for the purposes of this section, the “Government Acquired Products”) by or for the government of the United States of America or other government entity (the “Government”), or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the Government. By accepting delivery of the Government Acquired Products, Client hereby acknowledges that (a) the Offerings and documentation have been developed exclusively at private expenses, (b) the software based Offerings are commercial software and the documentation is commercial software documentation within the meaning of the acquisition regulation(s) applicable to this procurement, (c) the terms and conditions of this Agreement govern the all use and disclosure of the Government Acquired Products, and will supersede any conflicting contractual terms or conditions, and (d) this Agreement meets the Client’s needs or is consistent in all respect with United States law.
26. Force Majeure. Except for Client's payment obligations hereunder, a party will not be responsible for any failure to perform due to acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, strikes, or other causes beyond its reasonable control (each a "Force Majeure Event") provided that such party gives prompt written notice to the other party of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event. If the Force Majeure Event causes a delay of more than three months, either party may terminate an Order or this Agreement without penalty by providing written notice to the other party.
27. No Transfer or Assignment. Without obtaining SwervePay’s advance prior written consent, Client shall not assign, transfer, sublicense, subcontract, or otherwise delegate, in whole or in part any of Client’s rights, duties or obligations under this Agreement, including the right to receive settlement of funds pursuant to this Agreement. Any assignment, transfer, or delegation made by Client without complying with this Section is null and void and will permit SwervePay to terminate this Agreement immediately upon providing written notice to Client. Any, indirect or direct, change of ownership of Client is considered an assignment.
28. Export. Client shall not export or re-export the Offering without the prior written authorization of SwervePay and, as may be required under United States laws and regulations, the prior written authorization of the United States Department of Commerce or any other relevant Federal agency. SwervePay does not represent that the Offerings are appropriate or available for use in other countries. If Client obtains SwervePay’s authorization to export the Offerings, Client is solely responsible for compliance with all applicable laws, including export and import regulations of other countries.
29. Notices to Client. Client consents to do business electronically with SwervePay and receive electronic communications from SwervePay under this Agreement. SwervePay may provide Client notices, disclosures, or other information about the Offerings and Fees charged under this Agreement. Client agrees that SwervePay may provide this information and these notices by making them available on SwervePay’s website, through any mobile application in use by Client, or by sending Client an e-mail to Client’s email of record with SwervePay when Client signed up for any of the Offerings. Notices provided on the website or through a mobile application will be deemed given and received within 24 hours of posting and notices sent to Client’s email will be deemed given and received on the date of transmission. Alternatively, SwervePay may provide written notice by delivering the notice to Client at the most recent address that SwervePay has on file for such Client. Notices provided to Client’s most recent address will be deemed given and received at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if by a reputable overnight delivery service with tracking capabilities. Client may update the address of its principle office by providing notice to SwervePay.
30. Notices to SwervePay. All written notices to SwervePay under this Agreement need to be in writing and delivered to SwervePay at its principle office (currently, 1150 W. Kilgore Ave; Muncie, IN 47305) and to the attention of the “Legal Department”. The notice is deemed received by a party at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S. certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if sent by a reputable overnight delivery service with tracking capabilities. SwervePay may update the address of its principle office by providing notice to Client.
31. Amendments. SwervePay may updates these Terms and Conditions or the attached Sub-Merchant Payment Processing Terms at any time by providing Client with at least 90 days advance written notice. By continuing to use the Offerings after this 90 day period, Client will be deemed to have accepted the updated Terms and Conditions or updated Sub-Merchant Payment Processing Terms (“Updated Terms”). If Client does not agree to the Updated Terms, Client will prior to the expiration of the 90 day period, cease all use of the Offerings and notify SwervePay that Client is terminating this Agreement. If Client does not provide such notice within the 90 day period, Client’s right to terminate under this Section will expire. SwervePay may withdraw the Updated Terms within 30 days of when Client notifies SwervePay of Client’s desire to terminate this Agreement and have the Agreement continue under the unaltered Terms and Conditions or unaltered Sub-Merchant Payment Processing Terms. If SwervePay does not withdraw the Updated Terms, then this Agreement will terminate in accordance with Client’s notice.
32. General. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals, prior agreements, and other communications (oral or written) between the parties relating to the subject matter of this Agreement. A waiver by either party of or a party’s delay exercising its rights under this Agreement does not constitute a waiver of any other provision, breach, or default. If any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions will remain in effect. This Agreement inures to the benefit of and binds the parties, their permitted successors, heirs, and assigns. In all matters relating to this Agreement, Client and SwervePay will act as independent contractors. Neither party shall represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as an agent, employee, franchisee, or in any other capacity. Except as it relates to each of the party’s obligations under Section 22, the parties hereby agree that there are no third party beneficiaries under this Agreement.
Exhibit 1
Sub-Merchant Payment Processing Terms
1. Payment Facilitator Relationship. SwervePay is a Payment Facilitator. “Payment Facilitator” is defined by the Operating Rules and generally refers to a service provider that is registered with a processer to facilitate the processing of payment transactions on behalf of sub-merchants. As a Payment Facilitator, Client acknowledges that SwervePay is not a bank, that there is no fiduciary relationship between Client and SwervePay, and that SwervePay enters into agreements with other processors and banks to provide the Payment Processing Services.
2. Operating Rules. In using the Payment Processing Services, Client shall comply at all times with the Operating Rules. “Operating Rules” means (1) the by-laws, operating regulations and all other rules policies and procedures of MasterCard International, Inc. (“MasterCard”), VISA USA, Inc. (“Visa”), Discover, American Express, and other payment networks (“Card Organizations”); (2) the Payment Card Industry Data Security Standard; (3) the VISA Cardholder Information Security Program and Payment Application Best Practices; (4) the MasterCard Site Data Protection Program and POS Terminal Security Program; (5) American Express’s Data Security Operating Policy; (6) Discover’s Information Security & Compliance Program; and (7) any other program or requirement that may be published or mandated by MasterCard, Visa, Discover, American Express, or other payment networks/card associations.
3. Sub-Merchant Account. To use the Payment Processing Services Client shall work with SwervePay to set up and maintain one or more sub-merchant accounts by: (1) providing all required documentation and information, and (2) cooperating with SwervePay’s due diligence, Office of Foreign Asset Control related inquiries, and underwriting efforts. Client shall provide and maintain accurate and complete information with SwervePay to enable SwervePay to provide the sub-merchant accounts and the Payment Processing Services. Client authorizes SwervePay to share any such information with SwervePay’s processors, the sponsor bank, Client’s financial institutions, the Card Organizations, or to any other person or entity whose involvement is necessary to provide the Payment Processing Services. Client acknowledges that SwervePay will perform ongoing risk assessments related to Client’s sub-merchant accounts in accordance with the Operating Rules. Client authorizes SwervePay to request reports about Client from consumer reporting agencies, and Client shall cooperate to provide all documents requested by SwervePay to perform ongoing monitoring and analysis of Client’s financial condition. If any information is identified in these activities by SwervePay that either prevents SwervePay from being able to establish a sub-merchant account for Client or requires that SwervePay terminate Client’s existing sub-merchant account, SwervePay may immediately cease providing the Payment Processing Services, the other Offerings, and terminate this Agreement by providing notice to Client.
4. Client Warranties and Obligations. Client warrants that the individual entering into this Agreement on behalf of Client is at least 18 years of age and is authorized to enter into this Agreement. Client further warrants (a) it is either a legal resident of the United States, a United States citizen, or a legal business entity authorized to conduct business in one of the states in the United States; (b) the name identified by Client when Client completed the Enrollment Form is Client’s name under which Client operates and will obtain payment transactions; and (c) Client is in good standing, has all necessary licenses and permits to operate its business, and has all necessary right, power, and ability to comply with the terms of this Agreement. Client shall only use the Payment Processing Services within the United State. Client shall provide SwervePay with timely notification of any: (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; (iii) an adverse governmental or regulatory actions taken against Client; (iv) any change in the nature of Client’s products or services that makes the products or services materially different to what was previously represented to SwervePay; and (v) any other adverse changes that would interfere with Client’s ability to fulfill Client’s obligations under this Agreement. Client shall fulfill all obligations to Client’s customers related to any payment transaction and will be solely responsible for and resolve any dispute or complaint with a Payer.
5. Restrictions. Client shall:
b. not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (1) adult content; (2) airline or cruise line; (3) credit counseling or identity protection services; (4) sales to or from operations outside the United States of America and Canada; (5) distressed property sales and marketing; (6) gambling establishments or gambling; (7) card not present tobacco or pharmaceutical sales; (8) goods or services sold through rebate or upsell programs; (9) timeshare resales and related marketing of goods, services or properties; (10) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; or (11) buyer club activities or buyer club memberships.
c. not submit any transaction that: (1) adds any surcharge or other amount to the transaction as a condition of paying with a payment card, except to the extent authorized by the Operating Rules and applicable law; (2) adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately; (3) represents the refinancing or transfer of an existing Payer obligation that is deemed to be uncollectible or arises from the dishonor of a Payer’s personal check or from the acceptance of a Card at a terminal that dispenses scrip; (4) is not a valid transaction between the Client and a bona fide Payer; (5) Client knows or should have known to be fraudulent or not authorized by the Payer; (6) does not result from an act between Client and the Payer; or (7) required a valid authorization and it was not obtained.
d. not submit any refund transaction: (1) that does not correlate to an original sales transaction from the Payer; (2) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Payer for postage paid by the Payer to return merchandise in accordance with a policy applied consistently by Payer to all Client customers, (3) for returned products that were acquired in a cash purchase from Client; (4) that would cause an overdraft; or (5) more than three business days following either: (A) a regulatory requirement granting a Payer’s right to a refund; or (B) a non-disputed Payer request;
e. not transfer or attempt to transfer Client’s financial liability by asking or requiring Payer to waive their dispute rights; and
f. not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
6. Direct Processing Agreement. In accordance with the Operating Rules, SwervePay may need to have Client execute a direct agreement with SwervePay’s payment processor, in the form provided by SwervePay’s processor. Client will execute that direct agreement upon SwervePay’s request. If a direct agreement is deemed required and Client fails to enter into it upon request or the payment processor terminates the direct agreement at any time, SwervePay may cease providing the Offerings and terminate this Agreement by providing written notice to Client.
7. Deposit Account. As part of the Enrollment Form and for any subsequent account Client opens related to the Payment Processing Services, Client shall complete an Authorization for Direct Deposits form and for the duration of this Agreement, Client shall maintain one or more commercial checking account(s) to facilitate payment of payment transactions and automated clearing house network transfers between SwervePay and Client (“Deposit Account”). Client will notify SwervePay in writing any time there is a change in the Deposit Account information that will materially affect the ability of SwervePay to facilitate ACH transactions to Client’s Deposit Account. Client acknowledges that SwervePay is not responsible for any failure of Client to receive an ACH transfer that is caused by Client failing to maintain the Deposit Account or accurate Deposit Account information with SwervePay. Client shall maintain sufficient funds in the Deposit Account to accommodate the payment of any Fees, Chargeback liabilities, charges associated with the purchase of Terminals, or payment of any assessments from the Card Organizations.
8. Distribution of Funds to Client. Within one to two business days of a deposit of the funds from a payment by a Payer of an obligation due to Client into the Settlement Bank Account (“Funds”), SwervePay will have the Member Bank transmit via an ACH transfer to Client’s Deposit Account the Funds owed to Client provided that SwervePay receives a valid authorization code from the applicable Card Organization. Client further acknowledges that availability of the Funds for use by Client is subject to the control of the banking institutions and SwervePay is not responsible for any delay caused by the banking institutions. “Settlement Bank Account” means a bank or escrow account maintained by the Member Bank for receipt of payments made through the Payment Processing Services. “Member Bank” means a financial institution that provides credit card processing services for SwervePay under this Agreement. Each transaction will be considered complete when SwervePay has received the Funds and when such Funds have been accepted by Client’s designated bank or financial institution.
9. Chargebacks. A “Chargeback” occurs if a charge or transaction is reversed or returned for any reason to Client’s sub-merchant account by a Payer or card issuer. Client is solely responsible for the payment of all Chargebacks, and under no circumstances shall SwervePay be responsible for Chargebacks. Further, if a Chargeback occurs for any reason, Client will pay to SwervePay any administrative fees set forth in the Enrollment Form that reflects SwervePay’s involvement in the Chargeback resolution process. For any Chargeback, Client will also pay all credit card, debit card, bank, and ACH transaction fees, fines or penalties and refund all Funds transferred to Client’s Deposit Account corresponding to the Chargeback amount. Client will be notified of the Chargeback and of the amount due. If Client has a reason to dispute the Chargeback, Client has to dispute the Chargeback based on the date provided in the Chargeback notice. SwervePay has no independent obligation to investigate, dispute, or attempt to obtain reversal or adjustment of any Chargeback. SwervePay may deduct, and Client authorizes SwervePay to deduct, the amount of any Chargeback and any associated fees, fines, or penalties assessed by each processor and bank from: (a) Client’s sub-merchant account, (b) Client’s Reserve Account (if applicable), (c) Client’s Deposit Account; or (d) any amounts due to Client. If Client is incurring an excessive number of Chargebacks, SwervePay may increase the Fees, may hold back settlement of funds, establish or increase the fund requirements for a Reserve Account, or terminate this Agreement by providing written notice to Client. Client is responsible for monitoring Client’s monthly Chargeback percentage and developing Chargeback reduction programs as required by the Card Organizations.
10. Correcting Payment Errors. Client authorizes SwervePay, SwervePay’s processor, or Member Bank to debit the Deposit Account or Reserve Account for any misdirected deposits, duplicate deposit, or inadvertent overpayments into Client’s Deposit Account. This debit authorization survives the termination of this Agreement until SwervePay validates that there are no Incorrect Deposits that need to be addressed.
11. Statements and Client Review. SwervePay shall make available to Client statements and transaction reports reflecting Client’s sub-merchant account activity (“Statements”). Client acknowledges that Client has 90 days from when the Statements are made available to Client to review the Statements for accuracy. Subject to Client providing SwervePay with written notice of any dispute or discrepancy related to the Statement within that 90 day period, Client may reasonably dispute a Statement. Upon receipt of the dispute by SwervePay, SwervePay will review the disputed Statement and the parties will work together in good faith to resolve the dispute. If it is determined that SwervePay owes any additional amounts to Client, SwervePay will disperse that amount in accordance with Section 8 of this Exhibit. Client agrees that SwervePay will not be liable to Client or have any obligation to resolve any discrepancy in any Statement that Client does not dispute in accordance with this Section. Client’s failure to follow the dispute resolution procedures in this Section shall result in all such disputes being waived by Client.
12. Reserve Account. Upon notice to Client, SwervePay may elect or be required by SwervePay’s payment processor to establish a non-segregated account at a financial institution to ensure payment of all of Client’s payment or Fee obligations under this Agreement (“Reserve Account”). Client hereby permits SwervePay to fund the Reserve Account through (a) debiting the Deposit Account; (b) withholding Funds and depositing those funds in the Reserve Account; or (c) invoice Client and Client will pay such invoice within 30 days of the date of the invoice. SwervePay may continue to hold the Reserve Account with any amounts in it for up to one year after the termination of this Agreement. Client acknowledges that Client will not receive any interest on the amounts in the Reserve Account and has no right to access the amounts in the Reserve Account until SwervePay closes the Reserve Account and provides all amounts (if any) in the Reserve Account to Client. SwervePay will close the Reserve Account and release any amounts to Client once Client satisfies all payment obligations under this Agreement. The funds in the Reserve Account will be deemed to be the exclusive property of SwervePay, and not the merchant, while SwervePay holds such funds. Without in any way limiting the foregoing, and merely as an additional form of security, Client hereby further grants SwervePay a security interest in the Reserve Funds to the full extent necessary to satisfy any of Client’s obligations to SwervePay. SwervePay may enforce its security interest with or without notice or demand. The security interest(s) granted under this section will continue after termination of this Agreement until Client satisfies all its obligations to SwervePay. Client further agrees to execute and deliver to SwervePay such instruments and documents as SwervePay may reasonably request to confirm and perfect the security interest(s) granted by this Agreement.
13. Investigations and Sharing of Information. If SwervePay reasonably believes that a transaction is in violation of this Agreement, is illegal or otherwise may cause harm to SwervePay, Client, a Payer, or SwervePay’s processor, SwervePay may choose not to authorize, process, or settle the transaction. If SwervePay discovers any such transaction or any other unusual or unexpected transaction activity on Client’s sub-merchant account, Client authorizes SwervePay to hold Funds while SwervePay conducts an investigation into the transaction activity. As part of such investigation and upon SwervePay’s request, Client will provide all documentation requested to support or otherwise validate any transaction being investigated. As part of any SwervePay investigation or if required by law, court order, or a request from law enforcement or a governmental entity, SwervePay may withhold and defer the distribution to Client of any Funds until such investigation concludes, or such legal or governmental requirement no longer applies. If SwervePay reasonably believes that the Payment Processing Services have been used for an illegal, unauthorized or criminal purpose, Client expressly authorizes SwervePay to share information about Client, Client’s sub-merchant account, or Client’s transactions with Client’s banks, Client’s financial institutions, SwervePay’s processor, the Card Organizations, SwervePay’s advisors, and with law enforcement and governmental entities. If SwervePay reasonably believes in good faith that that Client needs to be reported under the Operating Rules, Client acknowledges that SwervePay may report Client to the MATCH list (Member Alert to Control High-Risk), the Card Organizations, any applicable governmental agency or law enforcement agency.
14. Honoring Cards. Client has the responsibility to validate the identity of the Payer and the Payer’s payment card information. If Client determines a payment card is expired or that the account number is listed on a current Electronic Warning Bulletin file or the account number does not match the card’s magnetic strip or chip, Client will not honor the payment card or the transaction. Client shall ensure that the Payer understands Client is responsible for the transaction and all the details related to the charges that will be processed on Payer’s payment card. Client shall maintain return and refund policies that comply with the Operating Rules and disclose to Payers any refund or return policies Client has. Unless a Payer expressly declines a written receipt, Client shall make a receipt available to a Payer for any transaction, whether in writing or via electronic means. Notwithstanding Client’s obligations herein SwervePay shall have the right, in its sole discretion, to decline to process any transaction that it believes is improper, fraudulent, unlawful, or otherwise in violation of any Laws and Regulations.
15. Client’s Security Obligations. Client shall keep all payment card, account information and personal information of a Payer (“Payer Information”) confidential and not disclose such information to a third party except as permitted under the Laws and Standards. Client shall keep Payer Information in a secure manner to prevent disclosure to unauthorized parties and in a manner that complies with all the Laws and Standards. Upon SwervePay’s request, Client will provide proof to SwervePay of Client’s compliance with the Laws and Standards. Client will only use the Payer Information for obtaining payment and not use or disclose the Payer Information for marketing purposes or any other unauthorized use without express consent of the Payer. Client shall immediately notify SwervePay if: (a) Client has reason to believe that Client’s sub-merchant account is no longer secure or being used for unauthorized purposes; or (b) Client discovers or has reason to suspect that a data breach has occurred. In any such event, Client will fully cooperate, at its expense, with all remediation efforts, forensic examination, and mitigation procedures required under the Laws and Standards or reasonably requested by SwervePay, the Card Organizations, SwervePay’s processor, and any of the parties’ banks or financial institutions. Client acknowledges that any failure to comply with the Laws and Standards or the occurrence of any data breach suffered by Client may result in Client being assessed penalties or fines by the Card Organization and Client shall pay those penalties and fines.
16. Third Parties. To the extent Client uses any third party to process, store, receive, transmit, or otherwise have access to Payer Information, Client assumes full responsibility and liability for such third party’s compliance with this Agreement and the Laws and Standards. SwervePay is not liable for the acts or omissions of such third parties. Client further agrees to notify SwervePay of the identity of all such third parties if those third parties relate to the Payment Processing Services and to ensure that such third parties are properly registered, if required to be so, with the Card Organizations. SwervePay may require any such third parties to undergo testing, approval, and certification by SwervePay or SwervePay’s bank or processer. SwervePay may, at any time, also terminate such third parties’ access to or ability to integrate with SwervePay. For the sake of clarity, SwervePay’s affiliates or subcontractors are not considered a third party under this Section.
17. Termination and Suspension Rights. In addition to the termination rights set forth in the Terms and Conditions, SwervePay may suspend providing the Payment Processing Services to Client upon providing notice to Client, if Client: (a) has violated these Sub-Merchant Payment Processing Terms or any of the Laws and Standards; (b) poses an unacceptable credit or fraud risk, as determined by SwervePay, SwervePay’s processor, or the Card Organizations; (c) becomes subject to any investigation or enforcement action by law enforcement or a governmental entity; (d) falls outside of SwervePay’s credit policies; (e) provides any false, incomplete, inaccurate, or misleading information or otherwise engages in fraudulent or illegal conduct; or (f) becomes part of the MATCH list or Terminated Client File maintained by MasterCard. If SwervePay suspends providing the Payment Processing Services for any of the foregoing reasons and the circumstances do not change after 30 days, SwervePay may terminate this Agreement by providing written notice to Client. Upon suspension of the Payment Processing Services or termination of this Agreement for any reason, (i) all pending transactions will be cancelled; (ii) Client shall pay all Fees and any other amounts owed to SwervePay that were accrued prior to the termination; and (iii) Client will remain liable for any and all Chargebacks, credits, adjustments, penalties, fines, costs, and all other amounts that become due prior to or after the suspension or termination. As part of the suspension or termination of the Agreement, SwervePay may establish and maintain a Reserve Account in accordance with Section 14 of this Exhibit. If Client is subject to an investigation or enforcement action at the time Client seeks to close a Client sub-merchant account, SwervePay may retain the Funds in the sub-merchant account or a Reserve Account until the investigation or action is completed.
18. Provisions Specific to American Express. If Client is accepting American Express card payments, Client agrees to the following in connection with its acceptance of American Express cards:
a. Any request to accept American Express cards is subject to approval by American Express. If approved, Client authorizes SwervePay to submit American Express card transactions to American Express. Client also agrees to accept settlement from American Express.
b. The American Express Merchant Operating Guide is incorporated into this Agreement by reference and available at the following link: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf. Client’s acceptance of American Express cards must be in accordance with American Express’s Merchant Operating Guide and any other rules promulgated by American Express, as amended from time to time.
c. Client may opt out of receiving commercial marketing materials from American Express without affecting Client’s ability to accept American Express cards or to receive important transactional or relationship messages from American Express.
d. Client agrees that American Express may use information obtained from Client to screen or monitor Client in connection with American Express card marketing and administrative purposes. In addition, American Express may use data obtained from Client to perform American Express’s responsibilities with the American Express OptBlue Program, to promote the American Express network, to perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes, and important transactional or relationship messages.
e. Client agrees that it may be converted from American Express Card acceptance pursuant to this Agreement to a direct American Express Card acceptance relationship with American Express if and when it becomes a High CV Merchant. “High CV Merchant” means a merchant with either (1) greater than $1 million in American Express Card Transaction volume (including volume from all Merchant locations) in a rolling 12 month period; or (2) greater than $100,000 in American Express Card Transaction volume (including all volume from all merchant locations) in any three consecutive months. Client will be notified if such a conversion is required and upon such conversion, Client will be bound by American Express’s then-current Card Acceptance Agreement and Client agrees that American Express will set pricing and other fees payable by Merchant for American Express Card acceptance.
f. Upon termination of this Agreement or of Client’s ability to accept American Express Cards hereunder, Client agrees to remove American Express identifying marks from Client’s website and wherever else they Client displays them.
g. Client agrees to have a refund policy for transactions on American Express cards that is at least as favorable as the refund policy or transactions on other card types.
h. Client acknowledges that it may opt out of accepting American Express cards at any time without affecting its right to accept other payment cards.
i. American Express is a third party beneficiary to this Agreement with respect to the rights in this Agreement, but not the obligations and will be able to enforce the terms of this Agreement against the Client as it relates to Client’s accepting of American Express card payments.
Client: {{{Customer_Legal_Name}}} | |
By: {{{Customer_Signor}}} | |
Its: {{{Customer_Signor_Title}}} | |
Date of Execution: {{{Todays_Date}}} | |
Address: {{{Customer_Street_Address}}} {{{Customer_City}}} {{{Customer_State}}} {{{Customer_ZipCode}}} | |
Email: {{{Customer_Signor_Email}}} |
Effective July 28, 2020 to August 19, 2020
DownloadTable of Contents
SwervePay Offerings Terms and Conditions (Last Updated July 28, 2020)
Please read the following carefully because these SwervePay Offerings Terms and Conditions (“Terms and Conditions”) govern your and your business’s use of the Offerings provided by SwervePay, LLC. By enrolling to use and using the Offerings you are accepting these Terms and Conditions on behalf of your business and acknowledge that this is a legal agreement between your business and SwervePay, LLC, a Delaware Limited Liability Company, with offices at 1150 W. Kilgore Ave., Muncie IN 47305 (“SwervePay”).
If you do not agree with these Terms and Conditions and the Sub-Merchant Payment Processing Terms, attached hereto as Exhibit 1, in their entirety, you and your business cannot enroll to use and cannot actually use any of the Offerings.
- Client. “Client” means the business that has enrolled to use and will use the Offerings (as defined in Section 5).
- Enrollment. “Enrollment Form” means the enrollment form completed by Client to use the Offerings and any applicable attachments to the Enrollment Form referenced therein. To use any of the Offerings, Client will need to complete the applicable Enrollment Form and as part of the enrollment process, indicate Client’s agreement to these Terms and Conditions. The Enrollment Form sets forth the fees for the Offerings. If there is any conflict between the Enrollment Form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Terms, these Terms and Conditions will prevail. The enrollment form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Term, form the agreement between the parties (“Agreement”).
- Effective Date and Term. The date Client accepts these Terms and Conditions by submitting an Enrollment Form is the effective date of the Agreement (“Effective Date”). The Enrollment Form will specify the duration of the initial term of the Agreement from the Effective Date (“Initial Term”). Thereafter, the term of the Agreement will automatically renew for successive one year periods (each a “Renewal Term”), unless a party provides the other party written notice of termination at least 30 days prior to the renewal date. In which case, this Agreement will automatically terminate at the end of the then current Term. “Term” means the Initial Term and any Renewal Term(s).
- Payment Processing Services. Upon enrollment and approval by SwervePay in accordance with this Agreement, SwervePay shall provide Client with payment processing services that enable Client to accept payments via payment cards, automated clearing house transactions (“ACH”), and other approved electronic payment transactions into Client’s bank account through electronic means (“Payment Processing Services”). SwervePay will provide and Client will use the Payment Processing Services in accordance with the attached Sub-Merchant Payment Processing Terms.
- Offerings and Right to Use To the extent SwervePay makes available to Client and Client elects to use any of the following, SwervePay will permit Client to use (a) communication tools, such as texting, e-mail, chatbots, or other electronic means for Client to communicate with Payers (“Communication Tools”); (b) web-based point of sale system (“Point of Sale Tool”); and (c) payment portals made available over the internet for the purposes of Client to collect payments from Payers (“Portals”). “Payer” means any individual or entity making a payment to Client using payment cards, ACH, or other approved electronic payment transactions. “Offerings” means the Payment Processing Services, Communication Tools, Point of Sale Tool, and Portals to the extent Client is using any of the forgoing. Subject to Client paying all necessary Fees and complying with all the other terms of this Agreement, SwervePay grants Client a non-exclusive and non-transferable subscription right for Client to use the Offerings for the Term.
- Fees and Taxes. Client shall pay SwervePay the fees for the Offerings as set forth in the Enrollment Form (“Fees”). SwervePay may modify, increase, add different, or otherwise change the Fees by providing Client 30 days’ advance written notice provided in accordance with Section 29. Client’s continued use of the Offerings will indicate Client’s consent to the change in Fees. If Client does not agree to the change in Fees, Client will need to notify SwervePay in writing of the objection and cease all use of the Offerings. Client acknowledges that the Fees do not include any taxes. Client shall collect, report, and remit any taxes required to be collected, paid, or withheld in connection with the Offerings and Terminals. SwervePay is not responsible for determining whether or not taxes apply or for calculating, collecting, reporting, or remitting any taxes. If a tax authority seeks collection from SwervePay of any taxes in connection with this Agreement, then Client shall reimburse SwervePay upon receipt of notice from SwervePay that SwervePay has paid such tax. SwervePay and its process may make available any reports required by law regarding Client to the Internal Revenue Service or any other Federal or state taxing authority.
- Terminals. SwervePay may permit Client to purchase point of sale payment card processing terminals (“Terminals”). Upon Client delivering payment for the purchase of the Terminals, Client shall own the Terminals. Client acknowledges that the Terminals are manufactured by third parties and are only provided for Client’s convenience. SwervePay provides all Terminals on “AS IS” basis and without any warranty of any kind. Client assumes all responsibility and liability for its use and the security of the Terminals. SwervePay disclaims all liability related to any defects or vulnerability in the Terminals, any third party hacking or otherwise gaining unauthorized access to the Terminals, or any use of the Terminals by Client.
- Communication Tools. To the extent Client utilizes the Communication Tools, Client shall obtain all necessary consents from the Payers to use the Communication Tools to communicate with the Payer. Client shall comply with any applicable legal obligation, carrier requirements, or industry standards related to communicating with Payers using the Communication Tools. Client shall make public terms and conditions related to Client’s use of the Communication Tools to communicate with the Payer and have each Payer agree to those terms and conditions. To the extent Client uses any Communication Tool that requires the use of a telephone carrier or wireless services provider, Client acknowledges that the applicable messages and associated data will be transmitted through such carriers and providers. Client authorizes SwervePay to disclose all requested information to the carriers and providers to allow Client’s use of the applicable Communication Tools. Client also acknowledges that some of the Communication Tools may require the uploading and transmitting of data and information over the Internet.
- Implementation. The parties shall cooperate with one another to set up and enable Client’s use of the Offerings. Client acknowledges that the implementation of the Offerings will not begin until SwervePay assigns resources to begin the project. Client shall provide SwervePay with all access to any data, systems and information reasonably required to implement the Offerings. SwervePay will provide all implementation services on a remote basis between the hours of 8 am and 5 pm based on the location of the resources performing the implementation services. Client shall provide at least one qualified Client representative to receive training on the Offerings.
- Support and Maintenance. After making the Offerings available for Client’s use in a production environment (“Go Live Date”), the parties will cooperate with one another in the administration of the Offerings. Client may contact SwervePay through SwervePay’s designated support communication channels to obtain general support by logging a support ticket. SwervePay will seek to make any Intrusive Changes only during its standard or scheduled maintenance windows. As used in this Section, “Intrusive Changes” means maintenance that will render the Offerings unavailable and “Non-Intrusive Changes” means maintenance that is not intended to make any of the Offerings unavailable. Client acknowledges that SwervePay performs Non-Intrusive Changes as needed.
- SaaS Offerings. For Offerings either hosted or provided as a software as a service (“SaaS Offerings”), SwervePay may utilize one or more third-party hosting providers to provide the SaaS Offerings and may change hosting providers by providing Client 30 days advance written notice. SwervePay uses reasonable efforts to make any of the SaaS Offerings available. Client acknowledges that SwervePay may make any of the SaaS Offerings unavailable during Scheduled Downtime and for Emergency Maintenance. “Scheduled Downtime” means time required to perform backup, maintenance and restore any of the SaaS Offerings that occurs during SwervePay’s standard maintenance window or during any additional downtime that is scheduled in advance by SwervePay. "Emergency Maintenance" means any corrective action intended to address hardware or software failures, viruses, malware, worms, other disabling code, or other conditions likely to cause degradation, security risks, or interruption, as designated by SwervePay in its reasonable discretion. In using the SaaS Offerings, Client shall not: (a) forge authentication credentials, use the authentication credentials of another user or disclose Client’s authentication credentials to any third party; (b) damage, bypass, break, or otherwise circumvent any of SwervePay’s security mechanisms; (c) use the SaaS Offerings: (i) to attempt to breach, circumvent or hack a third party, (ii) to transmit viruses, malicious, harmful, or deleterious programs, (iii) to launch or facilitate a denial of service attack; or (iv) in a manner that otherwise poses a security threat; (d) probe, scan, or test the vulnerability of the SaaS Offerings or monitor data or traffic of the SaaS Offerings without permission from SwervePay; (e) reverse-engineer the SaaS Offerings in order to find limitation, vulnerability or to evade, disable, or render inaccurate accounting billing, capacity limitations, or other functions of the SaaS Offerings; (f) use the SaaS Offerings to encourage, facilitate, engage, or in connection with abuse, harassment, discrimination, fraudulent activities, deceptive practices or other harmful or malicious acts; or (g) use the SaaS Offerings in a manner that would violate the Truth in Caller ID Act, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, the Do-Not Call Implementation Act, or any other local, state, federal, or foreign law or regulation. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation.
- Connections. To enable Client’s use of the Offerings, Client shall establish and maintain any necessary connections that meet SwervePay’s standards between Client’s network or systems and the Offerings. Client shall pay all costs related to setting up these connections. Client is responsible for making sure all such equipment functions appropriately and Client shall replace that equipment as needed.
- Accuracy of Client Data. Client acknowledges that Client is responsible for the accuracy and integrity of the information Client provides through Client’s use of the Offerings and the setting up maintaining of any accounts to use the Offerings. Client is also responsible for adopting procedures to identify and correct errors and omissions in such provided information. Client shall maintain the security of any account user names, passwords and any other login information Client uses to access and use the Offerings and shall promptly notify SwervePay if Client becomes aware of any unauthorized disclosure or use of Client’s account information. Client acknowledges that SwervePay does not review any of Client’s data or information for accuracy, validity, or compliance and SwervePay is not responsible for errors caused by insufficient or inaccurate data. Client shall monitor the contents of any messages being sent through the Offerings.
- Client’s Compliance with Laws and Standards. Client shall comply with and use the Offerings in a manner that complies with the Operating Rules (as defined in Exhibit 1), the Health Insurance Portability and Accountability Act, the Hi-Tech Act, the Fair Debt Collection Practices Act, the Electronic Funds Transfer Act, the Telephone Consumer Protection Act, and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the collection of debts, processing payments, and Client’s business (“Laws and Standards”). Client acknowledges that it has not retained SwervePay to provide guidance, advice, or counsel with respect to compliance with the Laws and Standards. Client takes full responsibility and assumes all risk and liability for Client’s own compliance with the Laws and Standards and Client’s use of the Offerings in compliance the Laws and Standards. Client will reimburse SwervePay for any fines, legal expenses, reasonable attorneys’ fees, or out of out of pocket costs incurred by SwervePay because of Client’s failure to comply with these Laws and Standards. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation.
- Proprietary Rights. SwervePay retains sole and exclusive ownership of all right, title and interest in the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides to Client under this Agreement. To the extent necessary to verify this ownership, Client agrees to and hereby does assign to SwervePay all copyrights, patent rights, title, and all other proprietary rights to the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides under this Agreement. Client shall not alter, modify, adapt, translate, copy, reverse engineer, decompile, disassemble, or create any derivative works of the Offerings. Client shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that are contained in the Offerings or any related information, documentation, or deliverables. Client shall not attempt to or circumvent any user limits, license keys, or other license, timing or use restriction built into the Offerings.
- Confidentiality. The party receiving information (“Recipient”) from the other party (“Discloser”) shall treat Discloser’s information as confidential (“Confidential Information”) unless: (1) Recipient is able to demonstrate that the Confidential Information was known to Recipient prior to the disclosure; (2) Recipient is able to demonstrate the Confidential Information is part of the public domain; or (3) Recipient’s personnel, without knowledge of the Confidential Information, independently develops the information. Except as permitted under this Agreement, Recipient shall only use the Confidential Information perform its obligations and shall not disclose or permit any third party to disclose any Confidential Information to any other person. Recipient shall not and shall not permit any third party to reproduce the Confidential Information or any portions thereof unless such reproductions are permitted by or are necessary for Recipient to perform its obligations under this Agreement. Recipient shall ensure that all reproductions of Discloser’s Confidential Information contain (if any) Discloser's proprietary or confidentiality notices in the same manner in which such notices were set forth in or on the original. Recipient will protect the Discloser's Confidential Information in the same manner that it employs to protect its own Confidential Information and in no event, will Recipient use less than reasonable efforts to protect the Discloser's Confidential Information from disclosure. Recipient may disclose the Confidential Information to its employees, subcontractors, advisors, or affiliates, who have been informed of the confidential nature of the Confidential Information and who have obligations of confidentiality that protect such types of information from disclosure to third parties. If Recipient is required by law or court order to disclose Discloser’s Confidential Information, Recipient may disclose the Confidential Information; subject to, where legally permitted, Recipient will: (1) provide Discloser prompt and advance written notice of the requirement; and (2) after providing the notice, reasonably assist Discloser, at Discloser's election and expense, in seeking to obtain an order protecting the information from further disclosure.
- Use of Data. Client acknowledges that (a) SwervePay provides Offerings under this Agreement that will utilize the data provided by Client to allow Client to collect payment, generate communications with individuals, and to achieve other desired outcomes; and (b) SwervePay collects statistical, system, user experience and other data related to Client’s use of the Offerings for the purposes of: (1) monitoring and improving the functionality of the Offerings; (2) offering trending or statistical De-Identified Data to SwervePay’s user base; and (3) aggregating and using De-Identified Data for SwervePay’s own business purposes as described in any applicable privacy policy for the Offerings. “De-Identified Data” means data that does not identify Client and does not identify any individual or identify any entity. SwervePay shall only use De-Identified Data in a manner that complies with applicable laws.
- SwervePay Warranties. SwervePay warrants that SwervePay uses reasonably qualified personnel to provide the services. Client's sole and exclusive remedy for a breach of this warranty is SwervePay re-performing of the applicable services at no additional cost to Client. SwervePay warrants that SwervePay complies with the applicable Operating Rules and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the processing of payments, and SwervePay’s business. Client acknowledges that Client is not relying upon any other representations, warranties, or promises that are not contained in this Agreement. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, SWERVEPAY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE OFFERINGS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE REGARDING MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. SWERVEPAY DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL MEET CLIENT'S REQUIREMENTS OR THAT THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
- Sunsetting. SwervePay may cease providing any of the Offerings by providing Client with at least 12 months advance written notice that the applicable Offering is being sunset. After that 12 month period, SwervePay will have no further obligations related to the applicable Offering and will cease charging Client for any applicable Fees.
- Termination for Breach. If either party breaches this Agreement in any manner, the other party may terminate this Agreement by providing the breaching party with written notice describing the breach in detail. Upon receipt of that notice, the breaching party will have a period of 30 days to cure the breach and if the breaching party fails to do so, this Agreement will automatically terminate at the end of the 30-day cure period.
- Effect of Termination. Within 90 days of termination or expiration of this Agreement, Recipient will destroy and purge from its computer systems the Discloser’s Confidential Information (including all copies, excerpts and summaries thereof), except to the extent such Confidential Information is stored pursuant to the Recipient’s standard back-up procedures or retained to meet Recipient’s legal or regulatory requirements or Recipient’s internal audit, document retention or internal compliance requirements. If the Discloser’s Confidential Information is retained as permitted in this Section, the Recipient will continue to abide by the confidentiality obligation of this Agreement until the Recipient ceases retaining such Confidential Information. Recipient shall destroy and purge such Confidential Information within the normal timeframe for deleting and purging such data. As it relates to Client acknowledges that SwervePay retains transaction records as required by applicable law and the Operating Rules and that information is not considered Client’s Confidential Information. Upon request by the Discloser, the recipient will certify in writing that the receiving party has complied with its obligations under this Section. Sections 6, Sections 14-16, the disclaimer in Section 18, Sections 21-24, Sections 29-32 of these Terms and Conditions and Section 17 of the attached Sub-Merchant Processing Payment Terms survive termination of this Agreement.
- Indemnification. Each party shall indemnify and defend the other party, its affiliates, and its officers, directors, and employees, from and against any third party claims, losses, damages, liabilities, lawsuits, and expenses (including reasonable attorneys’ fees, court costs and other defense expenses) arising out of or resulting from: (a) the indemnifying party’s failure to comply with the Operating Rules; (b) the indemnifying party’s breach of any warranty or representation under this Agreement; and (c) a data security breach or unauthorized access or disclosure of Client data or Payer information arising out of any act or omission of the indemnifying party, its affiliates, or contractors. The indemnified party shall notify the indemnifying party of any claim that falls under this Section promptly after the indemnifying party learns of such claim; provided, however, that the indemnifying party will only be relieved of its obligations under this Section due to the failure of the indemnified party to provide such prompt notice to the extent that the failure materially prejudices the indemnifying party in defending such claim. The indemnifying party’s obligations under this Section is conditioned upon the indemnified party: (i) providing all reasonably requested information and cooperation to the indemnifying party; and (ii) giving the indemnifying party sole control of the defense or settlement of such claim, at the indemnifying party’s sole cost and expense; provided, however, that the indemnifying party may not settle any such claim in a manner that requires the indemnified party to admit fault or incur any direct expense without the consent of the indemnified party, which will not be unreasonably withheld or delayed. If the indemnifying party fails to timely undertake the defense of a claim under this Section, each of the indemnified parties may undertake the defense (including settlement) of such claim and the indemnifying party will reimburse the indemnified parties for all such costs.
- Limitation of Liability. For any causes of action, claims, or assertions arising under or related to this Agreement or to the offerings (each a “Claim”), Swervepay’s liability in the aggregate to Client will not exceed THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO SWERVEPAY PURSUANT TO THIS AGREEMENT during the 6 months prior to the date the Claim is made, regardless of the form of action (whether based on contract, tort, negligence, strict liability, or otherwise). IN NO EVENT WILL SWERVEPAY BE LIABLE TO CLIENT FOR ANY LOST PROFITS OR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES OF ANY TYPE OR NATURE, EVEN IF SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT FEES OR CHARGES OF THE CARD ORGANIZATIONS OR OTHER THIRD PARTIES PASSED THROUGH TO CLIENT PURSUANT TO THIS AGREEMENT WILL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO SWERVEPAY WHEN DETERMINING SWERVEPAY’S LIABILITY UNDER THIS SECTION.
- Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the state of Indiana in the United States without regard to conflict of law principles. All disputes arising out of or related to this Agreement will be exclusively brought and exclusively maintained in the State courts located in Delaware County, Indiana, or the United States District Court for the Southern District of Indiana, Indianapolis Division (or upon appeal, to the appellate courts of corresponding jurisdiction to such State or Federal court). Each party consents to and waives any objection to the exclusive personal jurisdiction and venue of such State and Federal courts.
- Government Sales. This section applies to all acquisitions of the Offerings and documentation (collectively or individually for the purposes of this section, the “Government Acquired Products”) by or for the government of the United States of America or other government entity (the “Government”), or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the Government. By accepting delivery of the Government Acquired Products, Client hereby acknowledges that (a) the Offerings and documentation have been developed exclusively at private expenses, (b) the software based Offerings are commercial software and the documentation is commercial software documentation within the meaning of the acquisition regulation(s) applicable to this procurement, (c) the terms and conditions of this Agreement govern the all use and disclosure of the Government Acquired Products, and will supersede any conflicting contractual terms or conditions, and (d) this Agreement meets the Client’s needs or is consistent in all respect with United States law.
- Force Majeure. Except for Client's payment obligations hereunder, a party will not be responsible for any failure to perform due to acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, strikes, or other causes beyond its reasonable control (each a "Force Majeure Event") provided that such party gives prompt written notice to the other party of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event. If the Force Majeure Event causes a delay of more than three months, either party may terminate an Order or this Agreement without penalty by providing written notice to the other party.
- No Transfer or Assignment. Without obtaining SwervePay’s advance prior written consent, Client shall not assign, transfer, sublicense, subcontract, or otherwise delegate, in whole or in part any of Client rights, duties or obligations under this Agreement. Any assignment, transfer, or delegation made by Client without complying with this Section is null and void and will permit SwervePay to terminate this Agreement immediately upon providing written notice to Client. Any, indirect or direct, change of ownership of Client is considered an assignment.
- Export. Client shall not export or re-export the Offering without the prior written authorization of SwervePay and, as may be required under United States laws and regulations, the prior written authorization of the United States Department of Commerce or any other relevant Federal agency. SwervePay does not represent that the Offerings are appropriate or available for use in other countries. If Client obtains SwervePay’s authorization to export the Offerings, Client is solely responsible for compliance with all applicable laws, including export and import regulations of other countries.
- Notices to Client. Client consents to do business electronically with SwervePay and receive electronic communications from SwervePay under this Agreement. SwervePay may provide Client notices, disclosures, or other information about the Offerings and Fees charged under this Agreement. Client agrees that SwervePay may provide this information and these notices by making them available on SwervePay’s website, through any mobile application in use by Client, or by sending Client an e-mail to Client’s email of record with SwervePay when Client signed up for any of the Offerings. Notices provided on the website or through a mobile application will be deemed given and received within 24 hours of posting and notices sent to Client’s email will be deemed given and received on the date of transmission. Alternatively, SwervePay may provide written notice by delivering the notice to Client at the most recent address that SwervePay has on file for such Client. Notices provided to Client’s most recent address will be deemed given and received at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if by a reputable overnight deliver service with tracking capabilities. Client may update the address of its principle office by providing notice to SwervePay.
- Notices to SwervePay. All written notices to SwervePay under this Agreement need to be in writing and delivered to SwervePay at its principle office (currently, 1150 W. Kilgore Ave; Muncie, IN 47305) and to the attention of the “Legal Department”. The notice is deemed received by a party at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S. certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if sent by a reputable overnight delivery service with tracking capabilities. SwervePay may update the address of its principle office by providing notice to Client.
- Amendments. SwervePay may updates these Terms and Conditions or the attached Sub-Merchant Payment Processing Terms at any time by providing Client with at least 90 days advance written notice. By continuing to use the Offerings after this 90 day period, Client will be deemed to have accepted the updated Terms and Conditions or updated Sub-Merchant Payment Processing Terms (“Updated Terms”). If Client does not agree to the Updated Terms, Client will prior to the expiration of the 90 day period, cease all use of the Offerings and notify SwervePay that Client is terminating this Agreement. If Client does not provide such notice within the 90 day period, Client’s right to terminate under this Section will expire. SwervePay may withdraw the Updated Terms within 30 days of when Client notifies SwervePay of Client’s desire to terminate this Agreement and have the Agreement continue under the unaltered Terms and Conditions or unaltered Sub-Merchant Payment Processing Terms. If SwervePay does not withdraw the Updated Terms, then this Agreement will terminate in accordance with Client’s notice.
- General. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals, prior agreements, and other communications (oral or written) between the parties relating to the subject matter of this Agreement. A waiver by either party of or a party’s delay exercising its rights under this Agreement does not constitute a waiver of any other provision, breach, or default. If any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions will remain in effect. This Agreement inures to the benefit of and binds the parties, their permitted successors, heirs, and assigns. In all matters relating to this Agreement, Client and SwervePay will act as independent contractors. Neither party shall represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as an agent, employee, franchisee, or in any other capacity. Except as it relates to each of the party’s obligations under Section 22, the parties hereby agree that there are no third party beneficiaries under this Agreement.
Exhibit 1
Sub-Merchant Payment Processing Terms
- Payment Facilitator Relationship. SwervePay is a Payment Facilitator. “Payment Facilitator” is term defined by the Operating Rules and generally refers to as a service provider that is registered with a processer to facilitate the processing of payment transactions on behalf of sub-merchants. As a Payment Facilitator, Client acknowledges that SwervePay is not a bank, that there is no fiduciary relationship between Client and SwervePay, and that SwervePay enters into agreements with other processors and banks to provide the Payment Processing Services.
- Operating Rules. In using the Payment Processing Services, Client shall comply at all times with the Operating Rules. “Operating Rules” means (1) the by-laws, operating regulations and all other rules policies and procedures of MasterCard International, Inc. (“MasterCard”), VISA USA, Inc. (“Visa”), Discover, American Express, and other payment networks (“Card Organizations”); (2) the Payment Card Industry Data Security Standard; (3) the VISA Cardholder Information Security Program and Payment Application Best Practices; (4) the MasterCard Site Data Protection Program and POS Terminal Security Program; (5) American Express’s Data Security Operating Policy; (6) Discover’s Information Security & Compliance Program; and (7) any other program or requirement that may be published or mandated by MasterCard, Visa, Discover, American Express, or other payment networks/card associations.
- Sub-Merchant Account. To use the Payment Processing Services Client shall work with SwervePay to set up and maintain one or more sub-merchant accounts by: (1) providing all required documentation and information, and (2) cooperating with SwervePay’s due diligence, Office of Foreign Asset Control related inquiries, and underwriting efforts. Client shall provide and maintain accurate and complete information with SwervePay to enable SwervePay to provide the sub-merchant accounts and the Payment Processing Services. Client authorizes SwervePay to share any such information with SwervePay’s processors, the sponsor bank, Client’s financial institutions, the Card Organizations, or to any other person or entity whose involvement is necessary to provide the Payment Processing Services. Client acknowledges that SwervePay will perform ongoing risk assessments related to Client’s sub-merchant accounts in accordance with the Operating Rules. If any information is identified in these activities by SwervePay that either prevents SwervePay from being able to establish a sub-merchant account for Client or requires that SwervePay terminate Client’s existing sub-merchant account, SwervePay may immediately cease providing the Payment Processing Services, the other Offerings, and terminate this Agreement by providing notice to Client.
- Client Warranties and Obligations. Client warrants that the individual entering into this Agreement is at least 18 years of age. Client further warrants (a) it is either a legal resident of the United States, a United States citizen, or a legal business entity authorized to conduct business in one of the states in the United States; (b) the name identified by Client when Client registered is Client’s name under which Client operates and will obtain payment transactions; and (c) Client is in good standing, has all necessary licenses and permits to operate its business, and has all necessary right, power, and ability to comply with the terms of this Agreement. Client shall only use the Payment Processing Services within the United State. Client shall provide SwervePay with timely notification of any: (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; (iii) an adverse governmental or regulatory actions taken against Client; (iv) any change in the nature of Client’s products or services that makes the products or services materially different to what was previously represented to SwervePay; and (v) any other adverse changes that would interfere with Client’s ability to fulfill Client’s obligations under this Agreement. Client shall fulfill all obligations to Client’s customers related to any payment transaction and will be solely responsible for and resolve any dispute or complaint with a Payer.
- Restrictions. Client shall:
a. not accept payments in connection with any illegal activity, or any activity that is inconsistent with Client’s business as represented to SwervePay;
b. not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (1) adult content; (2) airline or cruise line; (3) credit counseling or identity protection services; (4) sales to or from operations outside the United States of America; (5) distressed property sales and marketing; (6) gambling establishments or gambling; (7) no card present tobacco or pharmaceutical sales; (8) goods or services sold through rebate or upsell programs; (9) timeshare resales and related marketing of goods, services or properties; (10) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; (11) buyer club activities or buyer club memberships; or (12) inbound or outbound telemarketing services.
c. not submit any transaction that: (1) adds any surcharge or other amount to the transaction as a condition of paying with a payment card, except to the extent authorized by the Operating Rules and applicable law; (2) adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately; (3) represents the refinancing or transfer of an existing Payer obligation that is deemed to be uncollectible or arises from the dishonor of a Payer’s personal check or from the acceptance of a Card at a terminal that dispenses scrip; (4) is not a valid transaction between the Client and a bona fide Payer; (5) Client knows or should have known to be fraudulent or not authorized by the Payer; (6) does not result from an act between Client and the Payer; or (7) required a valid authorization and it was not obtained.
d. not submit any refund transaction: (1) that does not correlate to an original sales transaction from the Payer; (2) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Payer for postage paid by the Payer to return merchandise in accordance with a policy applied consistently by Payer to all Client customers, (3) for returned products that were acquired in a cash purchase from Client; (4) that would cause an overdraft; or (5) more than three business days following either: (A) a regulatory requirement granting a Payer’s right to a refund; or (B) a non-disputed Payer request;
e. not transfer or attempt to transfer Client’s financial liability by asking or requiring Payer to waive their dispute rights; and
f. not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider. - Direct Processing Agreement. In accordance with the Operating Rules, if Client anticipates processing or does process more than $1,000,000 payment card transactions in any 12-month period, SwervePay may need to have Client execute a direct agreement with SwervePay’s payment processor, in the form provided by SwervePay’s processor. Client acknowledges that the thresholds set forth in this Section are subject to change and additional thresholds may be adopted under the Operating Rules. If a direct agreement is deemed required and Client fails to enter into it upon request or the payment processor terminates the direct agreement at any time, SwervePay may cease providing the Offerings and terminate this Agreement by providing written notice to Client.
- Deposit Account. As part of the Enrollment Form and for any subsequent account Client opens related to the Payment Processing Services, Client shall complete an Authorization for Direct Deposits form and for the duration of this Agreement, Client shall maintain one or more commercial checking account(s) to facilitate payment of payment transactions and automated clearing house network (“ACH”) transfers between SwervePay and Client (“Deposit Account”). Client will notify SwervePay in writing any time there is a change in the Deposit Account information that will materially affect the ability of SwervePay to make ACH transactions to Client’s Deposit Account. Client acknowledges that SwervePay is not responsible for any failure of Client to receive an ACH transfer that is caused by Client failing to maintain the Deposit Account or accurate Deposit Account information with SwervePay. Client shall maintain sufficient funds in the Deposit Account to accommodate the payment of any Fees, Chargeback liabilities, charges associated with the purchase of Terminals, or payment of any assessments from the Card Organizations.
- Distribution of Funds to Client. Within two business days of a deposit of the funds from a payment by a Payer of an obligation due to Client into the Settlement Bank Account (“Funds”), SwervePay will have the Member Bank transmit via an ACH transfer to Client’s Deposit Account the Funds owed to Client provided that SwervePay receives a valid authorization code from the applicable Card Organization. Client further acknowledges that availability of the Funds for use by Client is subject to the control of the banking institutions and SwervePay is not responsible for any delay caused by the banking institutions. “Settlement Bank Account” means a bank or escrow account maintained by SwervePay with the Member Bank for receipt of payments made through the Payment Processing Services. “Member Bank” means a financial institution that provides credit card processing services for SwervePay under this Agreement. Each transaction will be considered complete when SwervePay has received the Funds and when such Funds have been accepted by Client’s designated bank or financial institution.
- Chargebacks. If a charge or transaction is reversed or returned for any reason to Client’s sub-merchant account (“Chargeback”), Client will pay to SwervePay any administrative fees set forth in the Enrollment Form that reflects SwervePay’s involvement in the Chargeback resolution process. For any Chargeback, Client will also pay all credit card, debit card, bank, and ACH transaction fees, fines or penalties and refund all Funds transferred to Client’s Deposit Account corresponding to the Chargeback amount. Client will be notified of the Chargeback and of the amount due. If Client has a reason to dispute the Chargeback, Client has to dispute the Chargeback based on the date provided in the Chargeback notice. SwervePay has no independent obligation to investigate, dispute, or attempt to obtain reversal or adjustment of any Chargeback. SwervePay may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by each processor and bank from: (a) Client’s sub-merchant account, (b) Client’s Reserve Account (if applicable), (c) Client’s Deposit Account; or (d) any amounts due to Client. If Client is incurring an excessive number of Chargebacks, SwervePay may increase the Fees, holdback settlement of funds, establish or increase the fund requirements for a Reserve Account, or terminate this Agreement by providing written notice to Client. Client is responsible for monitoring Client’s monthly Chargeback percentage and developing Chargeback reduction programs as required by the Card Organizations.
- Correcting Payment Errors. Upon SwervePay providing written notice to Client, Client will also reimburse SwervePay for any misdirected deposits, duplicate deposits, or inadvertent overpayments into Client’s Deposit Account (“Incorrect Deposit”). Client authorizes SwervePay, SwervePay’s processor, or Member Bank to debit the Deposit Account or Reserve Account for any Incorrect Deposits. This debit authorization survives the termination of this Agreement until SwervePay validates that there are no Incorrect Deposits that need to be addressed.
- Statements and Client Review. SwervePay shall make available to Client statements and transaction reports reflecting Client’s sub-merchant account activity (“Statements”). Client acknowledges that Client has 90 days from when the Statements are made available to Client to review the Statements for accuracy. Subject to Client providing SwervePay with written notice of any dispute or discrepancy related to the Statement within that 90 day period, Client may reasonably dispute a Statement. Upon receipt of the dispute by SwervePay, SwervePay will review the disputed Statement and the parties will work together in good faith to resolve the dispute. If it is determined that SwervePay owes any additional amounts to Client, SwervePay will disperse that amount in accordance with Section 8 of this Exhibit. Client agrees that SwervePay will not be liable to Client or have any obligation to resolve any discrepancy in any Statement that Client does not dispute in accordance with this Section.
- Reserve Account. Upon notice to Client, SwervePay may elect or be required by SwervePay’s payment processor to establish a non-segregated account at a financial institution to ensure payment of all of Client’s payment or Fee obligations under this Agreement (“Reserve Account”). Client hereby permits SwervePay to fund the Reserve Account through (a) debiting the Deposit Account; (b) withholding Funds and depositing those funds in the Reserve Account; or (c) invoice Client and Client will pay such invoice within 30 days of the date of the invoice. SwervePay may continue to hold the Reserve Account with any amounts in it for up to one year after the termination of this Agreement. Client acknowledges that Client will not receive any interest on the amounts in the Reserve Account and has no right to access the amounts in the Reserve Account until SwervePay closes the Reserve Account and provides all amounts (if any) in the Reserve Account to Client. SwervePay will close the Reserve Account and release any amounts to Client once Client satisfies all payment obligations under this Agreement.
- Investigations and Sharing of Information. If SwervePay reasonably believes that a transaction is in violation of this Agreement, is illegal or otherwise may cause harm to SwervePay, Client, a Payer, or SwervePay’s processor, SwervePay may choose not to authorize, process, or settle the transaction. If SwervePay discovers any such transaction or any other unusual or unexpected transaction activity on Client’s sub-merchant account, Client authorizes SwervePay to hold Funds while SwervePay conducts an investigation into the transaction activity. As part of such investigation and upon SwervePay’s request, Client will provide all documentation requested to support or otherwise validate any transaction being investigated. As part of any SwervePay investigation or if required by law, court order, or a request from law enforcement or a governmental entity, SwervePay may withhold and defer the distribution to Client of any Funds until such investigation concludes, or such legal or governmental requirement no longer applies. If SwervePay reasonably believes that the Payment Processing Services have been used for an illegal, unauthorized or criminal purpose, Client expressly authorizes SwervePay to share information about Client, Client’s sub-merchant account, or Client’s transactions with Client’s banks, Client’s financial institutions, SwervePay’s processor, the Card Organizations, SwervePay’s advisors, and with law enforcement and governmental entities. If SwervePay reasonably believes in good faith that that Client needs to be reported under the Operating Rules, Client acknowledges that SwervePay may report Client to the MATCH list (Member Alert to Control High-Risk), the Card Organizations, any applicable governmental agency or law enforcement agency.
- Honoring Cards. Client has the responsibility to validate the identity of the Payer and the Payer’s payment card information. If Client determines a payment card is expired or that the account number is listed on a current Electronic Warning Bulletin file or the account number does not match the card’s magnetic strip or chip, Client will not honor the payment card or the transaction. Client shall ensure that the Payer understands Client is responsible for the transaction and all the details related to the charges that will be processed on Client’s payment card. Client shall maintain return and refund policies that comply with the Operating Rules and disclose to Payers any refund or return policies Client has. Unless a Payer expressly declines a written receipt, Client shall make a receipt available to a Payer for any transaction, whether in writing or via electronic means.
- Client’s Security Obligations. Client shall keep all payment card, account information and personal information of a Payer (“Payer Information”) confidential and not disclose such information to a third party except as permitted under the Laws and Standards. Client shall keep Payer Information in a secure manner to prevent disclosure to unauthorized parties and in a manner that complies with all the Laws and Standards. Upon SwervePay’s request, Client will provide proof to SwervePay of Client’s compliance with the Laws and Standards. Client will only use the Payer Information for obtaining payment and not use or disclose the Payer Information for marketing purposes or any other unauthorized use without express consent of the Payer. Client shall immediately notify SwervePay if: (a) Client has reason to believe that Client’s sub-merchant account is no longer secure or being used for unauthorized purposes; or (b) Client discovers or has reason to suspect that a data breach has occurred. In any such event, Client will fully cooperate, at its expense, with all remediation efforts, forensic examination, and mitigation procedures required under the Laws and Standards or reasonably requested by SwervePay, the Card Organizations, SwervePay’s processor, and any of the parties’ banks or financial institutions. Client acknowledges that any failure to comply with the Laws and Standards or the occurrence of any data breach suffered by Client may result in Client being assessed penalties or fines by the Card Organization and Client shall pay those penalties and fines.
- Third Parties. To the extent Client uses any third party to process, store, receive, transmit, or otherwise have access to Payer Information, Client assumes full responsibility and liability for such third party’s compliance with this Agreement and the Laws and Standards. SwervePay is not liable for the acts or omissions of such third parties. Client further agrees to notify SwervePay of the identity of all such third parties if those third parties relate to the Payment Processing Services and to ensure that such third parties are properly registered, if required to be so, with the Card Organizations. SwervePay may require any such third parties to undergo testing, approval, and certification by SwervePay or SwervePay’s bank or processer. SwervePay may, at any time, also terminate such third parties’ access to or ability to integrate with SwervePay. For the sake of clarity, SwervePay’s affiliates or subcontractors are not considered a third party under this Section.
- Termination and Suspension Rights. In addition to the termination rights set forth in the Terms and Conditions, SwervePay may suspend providing the Payment Processing Services to Client upon providing notice to Client, if Client: (a) has violated these Sub-Merchant Payment Processing Terms or any of the Laws and Standards; (b) poses an unacceptable credit or fraud risk, as determined by SwervePay, SwervePay’s processor, or the Card Organizations; (c) becomes subject to any investigation or enforcement action by law enforcement or a governmental entity; (d) falls outside of SwervePay’s credit policies; (e) provides any false, incomplete, inaccurate, or misleading information or otherwise engages in fraudulent or illegal conduct; or (f) becomes part of the MATCH list or Terminated Client File maintained by MasterCard. If SwervePay suspends providing the Payment Processing Services for any of the foregoing reasons and the circumstances do not change after 30 days, SwervePay may terminate this Agreement by providing written notice to Client. Upon suspension of the Payment Processing Services or termination of this Agreement for any reason, (i) all pending transactions will be cancelled; (ii) Client shall pay all Fees and any other amounts owed to SwervePay that were accrued prior to the termination; and (iii) Client will remain liable for any and all Chargebacks, credits, adjustments, penalties, fines, costs, and all other amounts that become due prior to or after the suspension or termination. As part of the suspension or termination of the Agreement, SwervePay may establish and maintain a Reserve Account in accordance with Section 14 of this Exhibit. If Client is subject to an investigation or enforcement action at the time Client seeks to close a Client sub-merchant account, SwervePay may retain the Funds in the sub-merchant account or a Reserve Account until the investigation or action is completed.
Client: {{{Customer_Legal_Name}}} | |
By: {{{Customer_Signor}}} | |
Its: {{{Customer_Signor_Title}}} | |
Date of Execution: {{{Todays_Date}}} | |
Address: {{{Customer_Street_Address}}} {{{Customer_City}}} {{{Customer_State}}} {{{Customer_ZipCode}}} | |
Email: {{{Customer_Signor_Email}}} |
Effective June 8, 2020 to July 28, 2020
DownloadTable of Contents
SwervePay Offerings Terms and Conditions (Last Updated June 3, 2020)
Please read the following carefully because these SwervePay Offerings Terms and Conditions (“Terms and Conditions”) govern your and your business’s use of the Offerings provided by SwervePay, LLC. By enrolling to use and using the Offerings you are accepting these Terms and Conditions on behalf of your business and acknowledge that this is a legal agreement between your business and SwervePay, LLC, a Delaware Limited Liability Company, with offices at 1150 W. Kilgore Ave., Muncie IN 47305 (“SwervePay”).
If you do not agree with these Terms and Conditions and the Sub-Merchant Payment Processing Terms, attached hereto as Exhibit 1, in their entirety, you and your business cannot enroll to use and cannot actually use any of the Offerings.
- Client. “Client” means the business that has enrolled to use and will use the Offerings (as defined in Section 5).
- Enrollment. “Enrollment Form” means the enrollment form completed by Client to use the Offerings and any applicable attachments to the Enrollment Form referenced therein. To use any of the Offerings, Client will need to complete the applicable Enrollment Form and as part of the enrollment process, indicate Client’s agreement to these Terms and Conditions. The Enrollment Form sets forth the fees for the Offerings. If there is any conflict between the Enrollment Form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Terms, these Terms and Conditions will prevail. The enrollment form and these Terms and Conditions, including the attached Sub-Merchant Payment Processing Term, form the agreement between the parties (“Agreement”).
- Effective Date and Term. The date Client accepts these Terms and Conditions by submitting an Enrollment Form is the effective date of the Agreement (“Effective Date”). The Enrollment Form will specify the duration of the initial term of the Agreement from the Effective Date (“Initial Term”). Thereafter, the term of the Agreement will automatically renew for successive one year periods (each a “Renewal Term”), unless a party provides the other party written notice of termination at least 30 days prior to the renewal date. In which case, this Agreement will automatically terminate at the end of the then current Term. “Term” means the Initial Term and any Renewal Term(s).
- Payment Processing Services. Upon enrollment and approval by SwervePay in accordance with this Agreement, SwervePay shall provide Client with payment processing services that enable Client to accept payments via payment cards, automated clearing house transactions (“ACH”), and other approved electronic payment transactions into Client’s bank account through electronic means (“Payment Processing Services”). SwervePay will provide and Client will use the Payment Processing Services in accordance with the attached Sub-Merchant Payment Processing Terms.
- Offerings and Right to Use To the extent SwervePay makes available to Client and Client elects to use any of the following, SwervePay will permit Client to use (a) communication tools, such as texting, e-mail, chatbots, or other electronic means for Client to communicate with Payers (“Communication Tools”); (b) web-based point of sale system (“Point of Sale Tool”); and (c) payment portals made available over the internet for the purposes of Client to collect payments from Payers (“Portals”). “Payer” means any individual or entity making a payment to Client using payment cards, ACH, or other approved electronic payment transactions. “Offerings” means the Payment Processing Services, Communication Tools, Point of Sale Tool, and Portals to the extent Client is using any of the forgoing. Subject to Client paying all necessary Fees and complying with all the other terms of this Agreement, SwervePay grants Client a non-exclusive and non-transferable subscription right for Client to use the Offerings for the Term.
- Fees and Taxes. Client shall pay SwervePay the fees for the Offerings as set forth in the Enrollment Form (“Fees”). SwervePay may modify, increase, add different, or otherwise change the Fees by providing Client 30 days’ advance written notice provided in accordance with Section 29. Client’s continued use of the Offerings will indicate Client’s consent to the change in Fees. If Client does not agree to the change in Fees, Client will need to notify SwervePay in writing of the objection and cease all use of the Offerings. Client acknowledges that the Fees do not include any taxes. Client shall collect, report, and remit any taxes required to be collected, paid, or withheld in connection with the Offerings and Terminals. SwervePay is not responsible for determining whether or not taxes apply or for calculating, collecting, reporting, or remitting any taxes. If a tax authority seeks collection from SwervePay of any taxes in connection with this Agreement, then Client shall reimburse SwervePay upon receipt of notice from SwervePay that SwervePay has paid such tax. SwervePay and its process may make available any reports required by law regarding Client to the Internal Revenue Service or any other Federal or state taxing authority.
- Terminals. SwervePay may permit Client to purchase point of sale payment card processing terminals (“Terminals”). Upon Client delivering payment for the purchase of the Terminals, Client shall own the Terminals. Client acknowledges that the Terminals are manufactured by third parties and are only provided for Client’s convenience. SwervePay provides all Terminals on “AS IS” basis and without any warranty of any kind. Client assumes all responsibility and liability for its use and the security of the Terminals. SwervePay disclaims all liability related to any defects or vulnerability in the Terminals, any third party hacking or otherwise gaining unauthorized access to the Terminals, or any use of the Terminals by Client.
- Communication Tools. To the extent Client utilizes the Communication Tools, Client shall obtain all necessary consents from the Payers to use the Communication Tools to communicate with the Payer. Client shall comply with any applicable legal obligation, carrier requirements, or industry standards related to communicating with Payers using the Communication Tools. Client shall make public terms and conditions related to Client’s use of the Communication Tools to communicate with the Payer and have each Payer agree to those terms and conditions. To the extent Client uses any Communication Tool that requires the use of a telephone carrier or wireless services provider, Client acknowledges that the applicable messages and associated data will be transmitted through such carriers and providers. Client authorizes SwervePay to disclose all requested information to the carriers and providers to allow Client’s use of the applicable Communication Tools. Client also acknowledges that some of the Communication Tools may require the uploading and transmitting of data and information over the Internet.
- Implementation. The parties shall cooperate with one another to set up and enable Client’s use of the Offerings. Client acknowledges that the implementation of the Offerings will not begin until SwervePay assigns resources to begin the project. Client shall provide SwervePay with all access to any data, systems and information reasonably required to implement the Offerings. SwervePay will provide all implementation services on a remote basis between the hours of 8 am and 5 pm based on the location of the resources performing the implementation services. Client shall provide at least one qualified Client representative to receive training on the Offerings.
- Support and Maintenance. After making the Offerings available for Client’s use in a production environment (“Go Live Date”), the parties will cooperate with one another in the administration of the Offerings. Client may contact SwervePay through SwervePay’s designated support communication channels to obtain general support by logging a support ticket. SwervePay will seek to make any Intrusive Changes only during its standard or scheduled maintenance windows. As used in this Section, “Intrusive Changes” means maintenance that will render the Offerings unavailable and “Non-Intrusive Changes” means maintenance that is not intended to make any of the Offerings unavailable. Client acknowledges that SwervePay performs Non-Intrusive Changes as needed.
- SaaS Offerings. For Offerings either hosted or provided as a software as a service (“SaaS Offerings”), SwervePay may utilize one or more third-party hosting providers to provide the SaaS Offerings and may change hosting providers by providing Client 30 days advance written notice. SwervePay uses reasonable efforts to make any of the SaaS Offerings available. Client acknowledges that SwervePay may make any of the SaaS Offerings unavailable during Scheduled Downtime and for Emergency Maintenance. “Scheduled Downtime” means time required to perform backup, maintenance and restore any of the SaaS Offerings that occurs during SwervePay’s standard maintenance window or during any additional downtime that is scheduled in advance by SwervePay. "Emergency Maintenance" means any corrective action intended to address hardware or software failures, viruses, malware, worms, other disabling code, or other conditions likely to cause degradation, security risks, or interruption, as designated by SwervePay in its reasonable discretion. In using the SaaS Offerings, Client shall not: (a) forge authentication credentials, use the authentication credentials of another user or disclose Client’s authentication credentials to any third party; (b) damage, bypass, break, or otherwise circumvent any of SwervePay’s security mechanisms; (c) use the SaaS Offerings: (i) to attempt to breach, circumvent or hack a third party, (ii) to transmit viruses, malicious, harmful, or deleterious programs, (iii) to launch or facilitate a denial of service attack; or (iv) in a manner that otherwise poses a security threat; (d) probe, scan, or test the vulnerability of the SaaS Offerings or monitor data or traffic of the SaaS Offerings without permission from SwervePay; (e) reverse-engineer the SaaS Offerings in order to find limitation, vulnerability or to evade, disable, or render inaccurate accounting billing, capacity limitations, or other functions of the SaaS Offerings; (f) use the SaaS Offerings to encourage, facilitate, engage, or in connection with abuse, harassment, discrimination, fraudulent activities, deceptive practices or other harmful or malicious acts; or (g) use the SaaS Offerings in a manner that would violate the Truth in Caller ID Act, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, the Do-Not Call Implementation Act, or any other local, state, federal, or foreign law or regulation. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation.
- Connections. To enable Client’s use of the Offerings, Client shall establish and maintain any necessary connections that meet SwervePay’s standards between Client’s network or systems and the Offerings. Client shall pay all costs related to setting up these connections. Client is responsible for making sure all such equipment functions appropriately and Client shall replace that equipment as needed.
- Accuracy of Client Data. Client acknowledges that Client is responsible for the accuracy and integrity of the information Client provides through Client’s use of the Offerings and the setting up maintaining of any accounts to use the Offerings. Client is also responsible for adopting procedures to identify and correct errors and omissions in such provided information. Client shall maintain the security of any account user names, passwords and any other login information Client uses to access and use the Offerings and shall promptly notify SwervePay if Client becomes aware of any unauthorized disclosure or use of Client’s account information. Client acknowledges that SwervePay does not review any of Client’s data or information for accuracy, validity, or compliance and SwervePay is not responsible for errors caused by insufficient or inaccurate data. Client shall monitor the contents of any messages being sent through the Offerings.
- Client’s Compliance with Laws and Standards. Client shall comply with and use the Offerings in a manner that complies with the Operating Rules (as defined in Exhibit 1), the Health Insurance Portability and Accountability Act, the Hi-Tech Act, the Fair Debt Collection Practices Act, the Electronic Funds Transfer Act, the Telephone Consumer Protection Act, and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the collection of debts, processing payments, and Client’s business (“Laws and Standards”). Client acknowledges that it has not retained SwervePay to provide guidance, advice, or counsel with respect to compliance with the Laws and Standards. Client takes full responsibility and assumes all risk and liability for Client’s own compliance with the Laws and Standards and Client’s use of the Offerings in compliance the Laws and Standards. Client will reimburse SwervePay for any fines, legal expenses, reasonable attorneys’ fees, or out of out of pocket costs incurred by SwervePay because of Client’s failure to comply with these Laws and Standards. If Client fails to comply with this Section, SwervePay may immediately suspend Client’s use of any or all of the Offerings until Client cures the violation.
- Proprietary Rights. SwervePay retains sole and exclusive ownership of all right, title and interest in the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides to Client under this Agreement. To the extent necessary to verify this ownership, Client agrees to and hereby does assign to SwervePay all copyrights, patent rights, title, and all other proprietary rights to the Offerings, any modifications thereto, and any related information, documentation, or deliverables SwervePay provides under this Agreement. Client shall not alter, modify, adapt, translate, copy, reverse engineer, decompile, disassemble, or create any derivative works of the Offerings. Client shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that are contained in the Offerings or any related information, documentation, or deliverables. Client shall not attempt to or circumvent any user limits, license keys, or other license, timing or use restriction built into the Offerings.
- Confidentiality. The party receiving information (“Recipient”) from the other party (“Discloser”) shall treat Discloser’s information as confidential (“Confidential Information”) unless: (1) Recipient is able to demonstrate that the Confidential Information was known to Recipient prior to the disclosure; (2) Recipient is able to demonstrate the Confidential Information is part of the public domain; or (3) Recipient’s personnel, without knowledge of the Confidential Information, independently develops the information. Except as permitted under this Agreement, Recipient shall only use the Confidential Information perform its obligations and shall not disclose or permit any third party to disclose any Confidential Information to any other person. Recipient shall not and shall not permit any third party to reproduce the Confidential Information or any portions thereof unless such reproductions are permitted by or are necessary for Recipient to perform its obligations under this Agreement. Recipient shall ensure that all reproductions of Discloser’s Confidential Information contain (if any) Discloser's proprietary or confidentiality notices in the same manner in which such notices were set forth in or on the original. Recipient will protect the Discloser's Confidential Information in the same manner that it employs to protect its own Confidential Information and in no event, will Recipient use less than reasonable efforts to protect the Discloser's Confidential Information from disclosure. Recipient may disclose the Confidential Information to its employees, subcontractors, advisors, or affiliates, who have been informed of the confidential nature of the Confidential Information and who have obligations of confidentiality that protect such types of information from disclosure to third parties. If Recipient is required by law or court order to disclose Discloser’s Confidential Information, Recipient may disclose the Confidential Information; subject to, where legally permitted, Recipient will: (1) provide Discloser prompt and advance written notice of the requirement; and (2) after providing the notice, reasonably assist Discloser, at Discloser's election and expense, in seeking to obtain an order protecting the information from further disclosure.
- Use of Data. Client acknowledges that (a) SwervePay provides Offerings under this Agreement that will utilize the data provided by Client to allow Client to collect payment, generate communications with individuals, and to achieve other desired outcomes; and (b) SwervePay collects statistical, system, user experience and other data related to Client’s use of the Offerings for the purposes of: (1) monitoring and improving the functionality of the Offerings; (2) offering trending or statistical De-Identified Data to SwervePay’s user base; and (3) aggregating and using De-Identified Data for SwervePay’s own business purposes as described in any applicable privacy policy for the Offerings. “De-Identified Data” means data that does not identify Client and does not identify any individual or identify any entity. SwervePay shall only use De-Identified Data in a manner that complies with applicable laws.
- SwervePay Warranties. SwervePay warrants that SwervePay uses reasonably qualified personnel to provide the services. Client's sole and exclusive remedy for a breach of this warranty is SwervePay re-performing of the applicable services at no additional cost to Client. SwervePay warrants that SwervePay complies with the applicable Operating Rules and any other applicable laws, regulations or requirements related to privacy, handling of personally identifiable, health or financial information, the processing of payments, and SwervePay’s business. Client acknowledges that Client is not relying upon any other representations, warranties, or promises that are not contained in this Agreement. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, SWERVEPAY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE OFFERINGS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE REGARDING MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. SWERVEPAY DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL MEET CLIENT'S REQUIREMENTS OR THAT THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
- Sunsetting. SwervePay may cease providing any of the Offerings by providing Client with at least 12 months advance written notice that the applicable Offering is being sunset. After that 12 month period, SwervePay will have no further obligations related to the applicable Offering and will cease charging Client for any applicable Fees.
- Termination for Breach. If either party breaches this Agreement in any manner, the other party may terminate this Agreement by providing the breaching party with written notice describing the breach in detail. Upon receipt of that notice, the breaching party will have a period of 30 days to cure the breach and if the breaching party fails to do so, this Agreement will automatically terminate at the end of the 30-day cure period.
- Effect of Termination. Within 90 days of termination or expiration of this Agreement, Recipient will destroy and purge from its computer systems the Discloser’s Confidential Information (including all copies, excerpts and summaries thereof), except to the extent such Confidential Information is stored pursuant to the Recipient’s standard back-up procedures or retained to meet Recipient’s legal or regulatory requirements or Recipient’s internal audit, document retention or internal compliance requirements. If the Discloser’s Confidential Information is retained as permitted in this Section, the Recipient will continue to abide by the confidentiality obligation of this Agreement until the Recipient ceases retaining such Confidential Information. Recipient shall destroy and purge such Confidential Information within the normal timeframe for deleting and purging such data. As it relates to Client acknowledges that SwervePay retains transaction records as required by applicable law and the Operating Rules and that information is not considered Client’s Confidential Information. Upon request by the Discloser, the recipient will certify in writing that the receiving party has complied with its obligations under this Section. Sections 6, Sections 14-16, the disclaimer in Section 18, Sections 21-24, Sections 29-32 of these Terms and Conditions and Section 17 of the attached Sub-Merchant Processing Payment Terms survive termination of this Agreement.
- Indemnification. Each party shall indemnify and defend the other party, its affiliates, and its officers, directors, and employees, from and against any third party claims, losses, damages, liabilities, lawsuits, and expenses (including reasonable attorneys’ fees, court costs and other defense expenses) arising out of or resulting from: (a) the indemnifying party’s failure to comply with the Operating Rules; (b) the indemnifying party’s breach of any warranty or representation under this Agreement; and (c) a data security breach or unauthorized access or disclosure of Client data or Payer information arising out of any act or omission of the indemnifying party, its affiliates, or contractors. The indemnified party shall notify the indemnifying party of any claim that falls under this Section promptly after the indemnifying party learns of such claim; provided, however, that the indemnifying party will only be relieved of its obligations under this Section due to the failure of the indemnified party to provide such prompt notice to the extent that the failure materially prejudices the indemnifying party in defending such claim. The indemnifying party’s obligations under this Section is conditioned upon the indemnified party: (i) providing all reasonably requested information and cooperation to the indemnifying party; and (ii) giving the indemnifying party sole control of the defense or settlement of such claim, at the indemnifying party’s sole cost and expense; provided, however, that the indemnifying party may not settle any such claim in a manner that requires the indemnified party to admit fault or incur any direct expense without the consent of the indemnified party, which will not be unreasonably withheld or delayed. If the indemnifying party fails to timely undertake the defense of a claim under this Section, each of the indemnified parties may undertake the defense (including settlement) of such claim and the indemnifying party will reimburse the indemnified parties for all such costs.
- Limitation of Liability. For any causes of action, claims, or assertions arising under or related to this Agreement or to the offerings (each a “Claim”), Swervepay’s liability in the aggregate to Client will not exceed THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO SWERVEPAY PURSUANT TO THIS AGREEMENT during the 6 months prior to the date the Claim is made, regardless of the form of action (whether based on contract, tort, negligence, strict liability, or otherwise). IN NO EVENT WILL SWERVEPAY BE LIABLE TO CLIENT FOR ANY LOST PROFITS OR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES OF ANY TYPE OR NATURE, EVEN IF SWERVEPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT FEES OR CHARGES OF THE CARD ORGANIZATIONS OR OTHER THIRD PARTIES PASSED THROUGH TO CLIENT PURSUANT TO THIS AGREEMENT WILL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO SWERVEPAY WHEN DETERMINING SWERVEPAY’S LIABILITY UNDER THIS SECTION.
- Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the state of Indiana in the United States without regard to conflict of law principles. All disputes arising out of or related to this Agreement will be exclusively brought and exclusively maintained in the State courts located in Delaware County, Indiana, or the United States District Court for the Southern District of Indiana, Indianapolis Division (or upon appeal, to the appellate courts of corresponding jurisdiction to such State or Federal court). Each party consents to and waives any objection to the exclusive personal jurisdiction and venue of such State and Federal courts.
- Government Sales. This section applies to all acquisitions of the Offerings and documentation (collectively or individually for the purposes of this section, the “Government Acquired Products”) by or for the government of the United States of America or other government entity (the “Government”), or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the Government. By accepting delivery of the Government Acquired Products, Client hereby acknowledges that (a) the Offerings and documentation have been developed exclusively at private expenses, (b) the software based Offerings are commercial software and the documentation is commercial software documentation within the meaning of the acquisition regulation(s) applicable to this procurement, (c) the terms and conditions of this Agreement govern the all use and disclosure of the Government Acquired Products, and will supersede any conflicting contractual terms or conditions, and (d) this Agreement meets the Client’s needs or is consistent in all respect with United States law.
- Force Majeure. Except for Client's payment obligations hereunder, a party will not be responsible for any failure to perform due to acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, strikes, or other causes beyond its reasonable control (each a "Force Majeure Event") provided that such party gives prompt written notice to the other party of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event. If the Force Majeure Event causes a delay of more than three months, either party may terminate an Order or this Agreement without penalty by providing written notice to the other party.
- No Transfer or Assignment. Without obtaining SwervePay’s advance prior written consent, Client shall not assign, transfer, sublicense, subcontract, or otherwise delegate, in whole or in part any of Client rights, duties or obligations under this Agreement. Any assignment, transfer, or delegation made by Client without complying with this Section is null and void and will permit SwervePay to terminate this Agreement immediately upon providing written notice to Client. Any, indirect or direct, change of ownership of Client is considered an assignment.
- Export. Client shall not export or re-export the Offering without the prior written authorization of SwervePay and, as may be required under United States laws and regulations, the prior written authorization of the United States Department of Commerce or any other relevant Federal agency. SwervePay does not represent that the Offerings are appropriate or available for use in other countries. If Client obtains SwervePay’s authorization to export the Offerings, Client is solely responsible for compliance with all applicable laws, including export and import regulations of other countries.
- Notices to Client. Client consents to do business electronically with SwervePay and receive electronic communications from SwervePay under this Agreement. SwervePay may provide Client notices, disclosures, or other information about the Offerings and Fees charged under this Agreement. Client agrees that SwervePay may provide this information and these notices by making them available on SwervePay’s website, through any mobile application in use by Client, or by sending Client an e-mail to Client’s email of record with SwervePay when Client signed up for any of the Offerings. Notices provided on the website or through a mobile application will be deemed given and received within 24 hours of posting and notices sent to Client’s email will be deemed given and received on the date of transmission. Alternatively, SwervePay may provide written notice by delivering the notice to Client at the most recent address that SwervePay has on file for such Client. Notices provided to Client’s most recent address will be deemed given and received at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if by a reputable overnight deliver service with tracking capabilities. Client may update the address of its principle office by providing notice to SwervePay.
- Notices to SwervePay. All written notices to SwervePay under this Agreement need to be in writing and delivered to SwervePay at its principle office (currently, 1150 W. Kilgore Ave; Muncie, IN 47305) and to the attention of the “Legal Department”. The notice is deemed received by a party at the earlier of: (a) when received, if hand delivered; (b) five days after being mailed by U.S. certified mail, return receipt requested, postage prepaid; or (c) one business day after mailed if sent by a reputable overnight delivery service with tracking capabilities. SwervePay may update the address of its principle office by providing notice to Client.
- Amendments. SwervePay may updates these Terms and Conditions or the attached Sub-Merchant Payment Processing Terms at any time by providing Client with at least 90 days advance written notice. By continuing to use the Offerings after this 90 day period, Client will be deemed to have accepted the updated Terms and Conditions or updated Sub-Merchant Payment Processing Terms (“Updated Terms”). If Client does not agree to the Updated Terms, Client will prior to the expiration of the 90 day period, cease all use of the Offerings and notify SwervePay that Client is terminating this Agreement. If Client does not provide such notice within the 90 day period, Client’s right to terminate under this Section will expire. SwervePay may withdraw the Updated Terms within 30 days of when Client notifies SwervePay of Client’s desire to terminate this Agreement and have the Agreement continue under the unaltered Terms and Conditions or unaltered Sub-Merchant Payment Processing Terms. If SwervePay does not withdraw the Updated Terms, then this Agreement will terminate in accordance with Client’s notice.
- General. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals, prior agreements, and other communications (oral or written) between the parties relating to the subject matter of this Agreement. A waiver by either party of or a party’s delay exercising its rights under this Agreement does not constitute a waiver of any other provision, breach, or default. If any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions will remain in effect. This Agreement inures to the benefit of and binds the parties, their permitted successors, heirs, and assigns. In all matters relating to this Agreement, Client and SwervePay will act as independent contractors. Neither party shall represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as an agent, employee, franchisee, or in any other capacity. Except as it relates to each of the party’s obligations under Section 22, the parties hereby agree that there are no third party beneficiaries under this Agreement.
Exhibit 1
Sub-Merchant Payment Processing Terms
- Payment Facilitator Relationship. SwervePay is a Payment Facilitator. “Payment Facilitator” is term defined by the Operating Rules and generally refers to as a service provider that is registered with a processer to facilitate the processing of payment transactions on behalf of sub-merchants. As a Payment Facilitator, Client acknowledges that SwervePay is not a bank, that there is no fiduciary relationship between Client and SwervePay, and that SwervePay enters into agreements with other processors and banks to provide the Payment Processing Services.
- Operating Rules. In using the Payment Processing Services, Client shall comply at all times with the Operating Rules. “Operating Rules” means (1) the by-laws, operating regulations and all other rules policies and procedures of MasterCard International, Inc. (“MasterCard”), VISA USA, Inc. (“Visa”), Discover, American Express, and other payment networks (“Card Organizations”); (2) the Payment Card Industry Data Security Standard; (3) the VISA Cardholder Information Security Program and Payment Application Best Practices; (4) the MasterCard Site Data Protection Program and POS Terminal Security Program; (5) American Express’s Data Security Operating Policy; (6) Discover’s Information Security & Compliance Program; and (7) any other program or requirement that may be published or mandated by MasterCard, Visa, Discover, American Express, or other payment networks/card associations.
- Sub-Merchant Account. To use the Payment Processing Services Client shall work with SwervePay to set up and maintain one or more sub-merchant accounts by: (1) providing all required documentation and information, and (2) cooperating with SwervePay’s due diligence, Office of Foreign Asset Control related inquiries, and underwriting efforts. Client shall provide and maintain accurate and complete information with SwervePay to enable SwervePay to provide the sub-merchant accounts and the Payment Processing Services. Client authorizes SwervePay to share any such information with SwervePay’s processors, the sponsor bank, Client’s financial institutions, the Card Organizations, or to any other person or entity whose involvement is necessary to provide the Payment Processing Services. Client acknowledges that SwervePay will perform ongoing risk assessments related to Client’s sub-merchant accounts in accordance with the Operating Rules. If any information is identified in these activities by SwervePay that either prevents SwervePay from being able to establish a sub-merchant account for Client or requires that SwervePay terminate Client’s existing sub-merchant account, SwervePay may immediately cease providing the Payment Processing Services, the other Offerings, and terminate this Agreement by providing notice to Client.
- Client Warranties and Obligations. Client warrants that the individual entering into this Agreement is at least 18 years of age. Client further warrants (a) it is either a legal resident of the United States, a United States citizen, or a legal business entity authorized to conduct business in one of the states in the United States; (b) the name identified by Client when Client registered is Client’s name under which Client operates and will obtain payment transactions; and (c) Client is in good standing, has all necessary licenses and permits to operate its business, and has all necessary right, power, and ability to comply with the terms of this Agreement. Client shall only use the Payment Processing Services within the United State. Client shall provide SwervePay with timely notification of any: (i) adverse changes in Client’s financial health; (ii) adverse changes in Client’s business conditions or environment; (iii) an adverse governmental or regulatory actions taken against Client; (iv) any change in the nature of Client’s products or services that makes the products or services materially different to what was previously represented to SwervePay; and (v) any other adverse changes that would interfere with Client’s ability to fulfill Client’s obligations under this Agreement. Client shall fulfill all obligations to Client’s customers related to any payment transaction and will be solely responsible for and resolve any dispute or complaint with a Payer.
- Restrictions. Client shall:
- not accept payments in connection with any illegal activity, or any activity that is inconsistent with Client’s business as represented to SwervePay;
- not accept payments for any of the following categories of goods or services or business (collectively, “Prohibited Transactions”): (1) adult content; (2) airline or cruise line; (3) credit counseling or identity protection services; (4) sales to or from operations outside the United States of America; (5) distressed property sales and marketing; (6) gambling establishments or gambling; (7) no card present tobacco or pharmaceutical sales; (8) goods or services sold through rebate or upsell programs; (9) timeshare resales and related marketing of goods, services or properties; (10) sales of goods or services from Client’s sub-merchants or other third party sellers of such goods or services; (11) buyer club activities or buyer club memberships; or (12) inbound or outbound telemarketing services.
- not submit any transaction that: (1) adds any surcharge or other amount to the transaction as a condition of paying with a payment card, except to the extent authorized by the Operating Rules and applicable law; (2) adds any tax to the transaction, unless applicable law expressly allows for Client to impose a tax; provided, any tax amount, if allowed, must be included in the transaction amount and not collected separately; (3) represents the refinancing or transfer of an existing Payer obligation that is deemed to be uncollectible or arises from the dishonor of a Payer’s personal check or from the acceptance of a Card at a terminal that dispenses scrip; (4) is not a valid transaction between the Client and a bona fide Payer; (5) Client knows or should have known to be fraudulent or not authorized by the Payer; (6) does not result from an act between Client and the Payer; or (7) required a valid authorization and it was not obtained.
- not submit any refund transaction: (1) that does not correlate to an original sales transaction from the Payer; (2) that exceeds the amount shown as the total on the original sale transaction, unless the excess represents the exact amount required to reimburse the Payer for postage paid by the Payer to return merchandise in accordance with a policy applied consistently by Payer to all Client customers, (3) for returned products that were acquired in a cash purchase from Client; (4) that would cause an overdraft; or (5) more than three business days following either: (A) a regulatory requirement granting a Payer’s right to a refund; or (B) a non-disputed Payer request;
- not transfer or attempt to transfer Client’s financial liability by asking or requiring Payer to waive their dispute rights; and
- not submit transactions on behalf of another entity that the Card Organizations would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider.
- Direct Processing Agreement. In accordance with the Operating Rules, if Client anticipates processing or does process more than $1,000,000 payment card transactions in any 12-month period, SwervePay may need to have Client execute a direct agreement with SwervePay’s payment processor, in the form provided by SwervePay’s processor. Client acknowledges that the thresholds set forth in this Section are subject to change and additional thresholds may be adopted under the Operating Rules. If a direct agreement is deemed required and Client fails to enter into it upon request or the payment processor terminates the direct agreement at any time, SwervePay may cease providing the Offerings and terminate this Agreement by providing written notice to Client.
- Deposit Account. As part of the Enrollment Form and for any subsequent account Client opens related to the Payment Processing Services, Client shall complete an Authorization for Direct Deposits form and for the duration of this Agreement, Client shall maintain one or more commercial checking account(s) to facilitate payment of payment transactions and automated clearing house network (“ACH”) transfers between SwervePay and Client (“Deposit Account”). Client will notify SwervePay in writing any time there is a change in the Deposit Account information that will materially affect the ability of SwervePay to make ACH transactions to Client’s Deposit Account. Client acknowledges that SwervePay is not responsible for any failure of Client to receive an ACH transfer that is caused by Client failing to maintain the Deposit Account or accurate Deposit Account information with SwervePay. Client shall maintain sufficient funds in the Deposit Account to accommodate the payment of any Fees, Chargeback liabilities, charges associated with the purchase of Terminals, or payment of any assessments from the Card Organizations.
- Distribution of Funds to Client. Within two business days of a deposit of the funds from a payment by a Payer of an obligation due to Client into the Settlement Bank Account (“Funds”), SwervePay will have the Member Bank transmit via an ACH transfer to Client’s Deposit Account the Funds owed to Client provided that SwervePay receives a valid authorization code from the applicable Card Organization. Client further acknowledges that availability of the Funds for use by Client is subject to the control of the banking institutions and SwervePay is not responsible for any delay caused by the banking institutions. “Settlement Bank Account” means a bank or escrow account maintained by SwervePay with the Member Bank for receipt of payments made through the Payment Processing Services. “Member Bank” means a financial institution that provides credit card processing services for SwervePay under this Agreement. Each transaction will be considered complete when SwervePay has received the Funds and when such Funds have been accepted by Client’s designated bank or financial institution.
- Chargebacks. If a charge or transaction is reversed or returned for any reason to Client’s sub-merchant account (“Chargeback”), Client will pay to SwervePay any administrative fees set forth in the Enrollment Form that reflects SwervePay’s involvement in the Chargeback resolution process. For any Chargeback, Client will also pay all credit card, debit card, bank, and ACH transaction fees, fines or penalties and refund all Funds transferred to Client’s Deposit Account corresponding to the Chargeback amount. Client will be notified of the Chargeback and of the amount due. If Client has a reason to dispute the Chargeback, Client has to dispute the Chargeback based on the date provided in the Chargeback notice. SwervePay has no independent obligation to investigate, dispute, or attempt to obtain reversal or adjustment of any Chargeback. SwervePay may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by each processor and bank from: (a) Client’s sub-merchant account, (b) Client’s Reserve Account (if applicable), (c) Client’s Deposit Account; or (d) any amounts due to Client. If Client is incurring an excessive number of Chargebacks, SwervePay may increase the Fees, holdback settlement of funds, establish or increase the fund requirements for a Reserve Account, or terminate this Agreement by providing written notice to Client. Client is responsible for monitoring Client’s monthly Chargeback percentage and developing Chargeback reduction programs as required by the Card Organizations.
- Correcting Payment Errors. Upon SwervePay providing written notice to Client, Client will also reimburse SwervePay for any misdirected deposits, duplicate deposits, or inadvertent overpayments into Client’s Deposit Account (“Incorrect Deposit”). Client authorizes SwervePay, SwervePay’s processor, or Member Bank to debit the Deposit Account or Reserve Account for any Incorrect Deposits. This debit authorization survives the termination of this Agreement until SwervePay validates that there are no Incorrect Deposits that need to be addressed.
- Statements and Client Review. SwervePay shall make available to Client statements and transaction reports reflecting Client’s sub-merchant account activity (“Statements”). Client acknowledges that Client has 90 days from when the Statements are made available to Client to review the Statements for accuracy. Subject to Client providing SwervePay with written notice of any dispute or discrepancy related to the Statement within that 90 day period, Client may reasonably dispute a Statement. Upon receipt of the dispute by SwervePay, SwervePay will review the disputed Statement and the parties will work together in good faith to resolve the dispute. If it is determined that SwervePay owes any additional amounts to Client, Client will disperse that amount in accordance with Section 8 of this Exhibit. Client agrees that SwervePay will not be liable to Client or have any obligation to resolve any discrepancy in any Statement that Client does not dispute in accordance with this Section.
- Reserve Account. Upon notice to Client, SwervePay may elect or be required by SwervePay’s payment processor to establish a non-segregated account at a financial institution to ensure payment of all of Client’s payment or Fee obligations under this Agreement (“Reserve Account”). Client hereby permits SwervePay to fund the Reserve Account through (a) debiting the Deposit Account; (b) withholding Funds and depositing those funds in the Reserve Account; or (c) invoice Client and Client will pay such invoice within 30 days of the date of the invoice. SwervePay may continue to hold the Reserve Account with any amounts in it for up to one year after the termination of this Agreement. Client acknowledges that Client will not receive any interest on the amounts in the Reserve Account and has no right to access the amounts in the Reserve Account until SwervePay closes the Reserve Account and provides all amounts (if any) in the Reserve Account to Client. SwervePay will close the Reserve Account and release any amounts to Client once Client satisfies all payment obligations under this Agreement.
- Investigations and Sharing of Information. If SwervePay reasonably believes that a transaction is in violation of this Agreement, is illegal or otherwise may cause harm to SwervePay, Client, a Payer, or SwervePay’s processor, SwervePay may choose not to authorize, process, or settle the transaction. If SwervePay discovers any such transaction or any other unusual or unexpected transaction activity on Client’s sub-merchant account, Client authorizes SwervePay to hold Funds while SwervePay conducts an investigation into the transaction activity. As part of such investigation and upon SwervePay’s request, Client will provide all documentation requested to support or otherwise validate any transaction being investigated. As part of any SwervePay investigation or if required by law, court order, or a request from law enforcement or a governmental entity, SwervePay may withhold and defer the distribution to Client of any Funds until such investigation concludes, or such legal or governmental requirement no longer applies. If SwervePay reasonably believes that the Payment Processing Services have been used for an illegal, unauthorized or criminal purpose, Client expressly authorizes SwervePay to share information about Client, Client’s sub-merchant account, or Client’s transactions with Client’s banks, Client’s financial institutions, SwervePay’s processor, the Card Organizations, SwervePay’s advisors, and with law enforcement and governmental entities. If SwervePay reasonably believes in good faith that that Client needs to be reported under the Operating Rules, Client acknowledges that SwervePay may report Client to the MATCH list (Member Alert to Control High-Risk), the Card Organizations, any applicable governmental agency or law enforcement agency.
- Honoring Cards. Client has the responsibility to validate the identity of the Payer and the Payer’s payment card information. If Client determines a payment card is expired or that the account number is listed on a current Electronic Warning Bulletin file or the account number does not match the card’s magnetic strip or chip, Client will not honor the payment card or the transaction. Client shall ensure that the Payer understands Client is responsible for the transaction and all the details related to the charges that will be processed on Client’s payment card. Client shall maintain return and refund policies that comply with the Operating Rules and disclose to Payers any refund or return policies Client has. Unless a Payer expressly declines a written receipt, Client shall make a receipt available to a Payer for any transaction, whether in writing or via electronic means.
- Client’s Security Obligations. Client shall keep all payment card, account information and personal information of a Payer (“Payer Information”) confidential and not disclose such information to a third party except as permitted under the Laws and Standards. Client shall keep Payer Information in a secure manner to prevent disclosure to unauthorized parties and in a manner that complies with all the Laws and Standards. Upon SwervePay’s request, Client will provide proof to SwervePay of Client’s compliance with the Laws and Standards. Client will only use the Payer Information for obtaining payment and not use or disclose the Payer Information for marketing purposes or any other unauthorized use without express consent of the Payer. Client shall immediately notify SwervePay if: (a) Client has reason to believe that Client’s sub-merchant account is no longer secure or being used for unauthorized purposes; or (b) Client discovers or has reason to suspect that a data breach has occurred. In any such event, Client will fully cooperate, at its expense, with all remediation efforts, forensic examination, and mitigation procedures required under the Laws and Standards or reasonably requested by SwervePay, the Card Organizations, SwervePay’s processor, and any of the parties’ banks or financial institutions. Client acknowledges that any failure to comply with the Laws and Standards or the occurrence of any data breach suffered by Client may result in Client being assessed penalties or fines by the Card Organization and Client shall pay those penalties and fines.
- Third Parties. To the extent Client uses any third party to process, store, receive, transmit, or otherwise have access to Payer Information, Client assumes full responsibility and liability for such third party’s compliance with this Agreement and the Laws and Standards. SwervePay is not liable for the acts or omissions of such third parties. Client further agrees to notify SwervePay of the identity of all such third parties if those third parties relate to the Payment Processing Services and to ensure that such third parties are properly registered, if required to be so, with the Card Organizations. SwervePay may require any such third parties to undergo testing, approval, and certification by SwervePay or SwervePay’s bank or processer. SwervePay may, at any time, also terminate such third parties’ access to or ability to integrate with SwervePay. For the sake of clarity, SwervePay’s affiliates or subcontractors are not considered a third party under this Section.
- Termination and Suspension Rights. In addition to the termination rights set forth in the Terms and Conditions, SwervePay may suspend providing the Payment Processing Services to Client upon providing notice to Client, if Client: (a) has violated these Sub-Merchant Payment Processing Terms or any of the Laws and Standards; (b) poses an unacceptable credit or fraud risk, as determined by SwervePay, SwervePay’s processor, or the Card Organizations; (c) becomes subject to any investigation or enforcement action by law enforcement or a governmental entity; (d) falls outside of SwervePay’s credit policies; (e) provides any false, incomplete, inaccurate, or misleading information or otherwise engages in fraudulent or illegal conduct; or (f) becomes part of the MATCH list or Terminated Client File maintained by MasterCard. If SwervePay suspends providing the Payment Processing Services for any of the foregoing reasons and the circumstances do not change after 30 days, SwervePay may terminate this Agreement by providing written notice to Client. Upon suspension of the Payment Processing Services or termination of this Agreement for any reason, (i) all pending transactions will be cancelled; (ii) Client shall pay all Fees and any other amounts owed to SwervePay that were accrued prior to the termination; and (iii) Client will remain liable for any and all Chargebacks, credits, adjustments, penalties, fines, costs, and all other amounts that become due prior to or after the suspension or termination. As part of the suspension or termination of the Agreement, SwervePay may establish and maintain a Reserve Account in accordance with Section 14 of this Exhibit. If Client is subject to an investigation or enforcement action at the time Client seeks to close a Client sub-merchant account, SwervePay may retain the Funds in the sub-merchant account or a Reserve Account until the investigation or action is completed.
Client: {{{Customer_Legal_Name}}} | |
By: {{{Customer_Signor}}} | |
Its: {{{Customer_Signor_Title}}} | |
Date of Execution: {{{Todays_Date}}} | |
Address: {{{Customer_Street_Address}}} {{{Customer_City}}} {{{Customer_State}}} {{{Customer_ZipCode}}} | |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 1.0% 2020 1.70% 2021 .25 ACH
Effective June 12, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 1.70% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 2.50% .25 ACH
Effective June 15, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 2.5% | Per ACH Transaction Percentage of Dollar Amount of Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective June 15, 2020 to June 15, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 2.5% | Per ACH Transaction Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective June 15, 2020 to June 15, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.70% | Per ACH Transaction Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective June 15, 2020 to June 15, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.70% | Per ACH Transaction Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 2.70% .25 ACH $7 Return
Effective June 16, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 2.70% | Per ACH Transaction Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $7.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2025
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 1.0% 2020 3.35% 2021 .25 ACH
Effective June 17, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.35% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective June 17, 2020 to June 17, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.35% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CUSTOMER: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 1.0% 2020 3.10% 2021 .25 ACH
Effective June 22, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.10% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 2.57% .25 ACH $7 Returns
Effective June 22, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 2.57% | Per ACH Transaction Percentage of Dollar Amount of Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $7.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A SwervePay 2.99% Flat .29 ACH
Effective June 22, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.29 2.99% | Per ACH Transaction Percentage of Dollar Amount of Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $25.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 2.57% .25 ACH $7 Returns 12/21
Effective June 23, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 2.57% | Per ACH Transaction Percentage of Dollar Amount of Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $7.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. “Go Live” means when the Services are made available to You in a production environment. You agree that Go Live will not occur before December 21, 2020.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective June 23, 2020 to June 23, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 2.57% | Per ACH Transaction Processed Volume after the Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $7.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. “Go Live” means when the Services are made available to You in a production environment. You agree that Go Live will not occur before December 21, 2020.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 1.0% 2020 2.22% 2021 .25 ACH 2 Year
Effective June 25, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.22% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2022
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 1.0% 2020 2.15% 2021 .25 ACH
Effective June 26, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.15% | Per ACH Transaction Processed Volume for first six months after Go Live ("Introductory Period") Processed Volume after Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. "Go Live" means when the Payment Processing Services are made available to You in a production environment.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective June 26, 2020 to June 26, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.15% | Per ACH Transaction Processed Volume for first six months after Go Live ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. "Go Live" means when the Payment Processing Services are made available to You in a production environment.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective June 25, 2020 to June 26, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.15% | Per ACH Transaction Processed Volume in 2020 ("Introductory Period") Processed Volume beginning Jan 1, 2021 |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 1.0% 6 mo 3.50% .25 ACH $7 Returns 12/21 4 Yr
Effective June 25, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.50% | Per ACH Transaction Processed Volume for first six months after Go Live ("Introductory Period") Processed Volume after the Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $7.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2024
Go Live. “Go Live” means when the Services are made available to You in a production environment. You agree that Go Live will not occur before December 21, 2020.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective June 25, 2020 to June 25, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.50% | Per ACH Transaction Processed Volume for first six months after Go Live ("Introductory Period") Processed Volume after the Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $7.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. “Go Live” means when the Services are made available to You in a production environment. You agree that Go Live will not occur before December 21, 2020.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 1.0% 2020 3.20% 2021 .25 ACH
Effective July 24, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 3.20% | Per ACH Transaction Processed Volume for 2020 ("Introductory Period") Processed Volume after Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. "Go Live" means when the Payment Processing Services are made available to You in a production environment.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 1.0% 2020 2.20% 2021 .25 ACH
Effective August 7, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.00% 2.20% | Per ACH Transaction Processed Volume for 2020 ("Introductory Period") Processed Volume after Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. "Go Live" means when the Payment Processing Services are made available to You in a production environment.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 1.25% 2020 3.00% 2021 .25 ACH $7.50 Return
Effective August 7, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.25% 3.00% | Per ACH Transaction Processed Volume for 2020 ("Introductory Period") Processed Volume after Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $7.50 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. "Go Live" means when the Payment Processing Services are made available to You in a production environment.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 2.50%
Effective August 25, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 2.50% | Percentage of Dollar Amount of Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. "Go Live" means when the Payment Processing Services are made available to You in a production environment.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Effective August 25, 2020 to August 25, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 2.50% | Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. "Go Live" means when the Payment Processing Services are made available to You in a production environment.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 1.25% 2020 1.85% 2021 .25 ACH
Effective September 2, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.25% 1.85% | Per ACH Transaction Processed Volume for 2020 ("Introductory Period") Processed Volume after Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. "Go Live" means when the Payment Processing Services are made available to You in a production environment.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 2.75% $0.25 ACH
Effective September 2, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 2.75% $0.25 | Percentage of Dollar Amount of Processed Volume Per ACH Transaction |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. "Go Live" means when the Payment Processing Services are made available to You in a production environment.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 1.25% 2020 3.00% 2021 .25 ACH
Effective September 10, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.25% 3.00% | Per ACH Transaction Processed Volume for 2020 ("Introductory Period") Processed Volume after Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. "Go Live" means when the Payment Processing Services are made available to You in a production environment.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 1.50% 2020 2.25% 2021 .25 ACH
Effective September 10, 2020
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SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | $0.25 1.50% 2.25% | Per ACH Transaction Processed Volume for 2020 ("Introductory Period") Processed Volume after Introductory Period |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. "Go Live" means when the Payment Processing Services are made available to You in a production environment.
Anticipated Usage. You acknowledge that SwervePay has provided the above rates based on evaluating Your anticipated volume from the information You provided. SwervePay will validate your volumes during the Introductory Period. For the remainder of the term after the Introductory Period, if Your volume substantially reduces other than for a force majeure event, SwervePay, after providing thirty (30) days’ advance notice, may draft Your account for any Services provided during the Introductory Period for the difference between the introductory rate charged during the Introductory Period and the higher rate charged after the Introductory Period as indicated in this Schedule A.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 1.95
Effective September 16, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 1.95% | Percentage of Dollar Amount of Processed Volume |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. "Go Live" means when the Payment Processing Services are made available to You in a production environment.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A Ontario 4.00% $0.25 ACH
Effective September 16, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 4.00% $0.25 | Percentage of Dollar Amount of Processed Credit Card Volume Per ACH Transaction |
Other Fees: | $15.00 $35.00 $25.00 $10.00 $5.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $10.00 total) ACH Return Fee Per Instance |
Term. Effective Date until December 31, 2023
Go Live. "Go Live" means when the Payment Processing Services are made available to You in a production environment.
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A RevSpring Payment Processing 2.85% $0.08
Effective October 19, 2020
DownloadTable of Contents
SwervePay Schedule A
This Schedule A is part of the Terms and Conditions.
Fee Schedule | Rate | Description |
Includes: Software and Merchant Services | 2.85% $0.08 | Percentage of Dollar Amount of Processed Credit Card Volume Per Transaction |
Other Fees: | $15.00 $35.00 $25.00 $20.00 | Settlement Reject Fee Chargeback and Retrieval Fee Per Instance PCI Non Reporting Fee Per Instance Monthly Minimum Fee (if fees do not exceed $20.00 total) per MID |
CLIENT: |
{{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Its: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Business Address: {{{Customer_Street_Address}}} {{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A - Pricing: TheraOffice 033121
Effective April 21, 2023
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SCHEDULE A
Fee Schedule | Rate | Quantity |
Includes: SwervePay Software and Services | 2.95% 2.55% $0.30 | Processed Volume on Non-Swipe Transactions Processed Volume Swipe Transactions Per Transaction |
One Time Fees (if applicable in a given month) | $30.00 $15.00 $35.00 $25.00 | Monthly Minimum Fee ACH Settlement Return Fee Per Dispute Fee PCI Non-Compliance Fee Per Non-Compliant Month. Finvi Payments may terminate if Client fails to maintain PCI Compliance. |
Device / Readers: M130's | $130.00 | Per Device |
{{{Business_Legal_Name}}}
{{{Business_Contact_Name}}}
Effective August 30, 2022 to April 21, 2023
DownloadTable of Contents
SCHEDULE A
Fee Schedule | Rate | Quantity |
Includes: SwervePay Software and Services | 2.95% 2.55% $0.30 | Processed Volume on Non-Swipe Transactions Processed Volume Swipe Transactions Per Transaction |
One Time Fees (if applicable in a given month) | $25.00 $15.00 $35.00 $25.00 | Monthly Minimum Fee ACH Settlement Return Fee Per Dispute Fee PCI Non-Compliance Fee Per Non-Compliant Month. Finvi Payments may terminate if Client fails to maintain PCI Compliance. |
Device / Readers: M130's | $130.00 | Per Device |
{{{Business_Legal_Name}}}
{{{Business_Contact_Name}}}
Effective March 31, 2021 to August 30, 2022
DownloadTable of Contents
SCHEDULE A
Fee Schedule | Rate | Quantity |
Includes: SwervePay Health Software and Services | 2.90% 2.50% $0.30 | Processed Volume on Non-Swipe Transactions Processed Volume on Swipe Transactions Per Transaction |
One Time Fees (if applicable in a given month) | $25.00 $15.00 $35.00 $25.00 | Monthly Minimum Fee ACH Settlement Return Fee Dispute Fee PCI Non Reporting Fee |
Device / Readers: M130's | $130.00 | Per Device |
{{{Business_Legal_Name}}}
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General BAA - Customers 033121
Effective October 6, 2021
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BUSINESS ASSOCIATE SUBCONTRACTOR AGREEMENT
THIS BUSINESS ASSOCIATE SUBCONTRACTOR AGREEMENT ("Agreement") is entered into on the date indicated below by and between you ("Client") and SwervePay, LLC ("SwervePay").
Client provides certain functions, activities and/or services as a "business associate" to certain entities that are "covered entities", as both terms are defined in Section 160.103 of title 45 of the Code of Federal Regulations ("CFR").
Pursuant to the SwervePay Terms and Conditions ("Service Agreement"), SwervePay provides certain functions, activities or services (collectively, "Services") to Client as a "subcontractor", as that term is defined in 45 CFR § 160.103.
In order for SwervePay to perform the Services required by the Service Agreement, Client will make available and/or transfer to SwervePay certain Protected Health Information and Electronic Health Information (collectively, "PHI") that is confidential and must be afforded special treatment and protection pursuant to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and regulations issued thereunder, as amended from time to time, and the Health Information Technology for Economic and Clinical Health Act, as incorporated in Title XIII of the American Recovery and Reinvestment Act of 2009 and its implementing regulations as issued from time to time ("HITECH Act").
SwervePay will have access to and/or receive from Client certain PHI that can be used or disclosed only in accordance with this Agreement and the HIPAA Rules (as defined below).
Client and SwervePay intend to protect the privacy and provide for the security of PHI disclosed to SwervePay pursuant to this Agreement in compliance with HIPAA and the HIPAA Rules.
NOW, THEREFORE, Client and SwervePay agree as follows:
ARTICLE I.
Definitions
I.1 Meaning of Terms.
The following terms shall have the meaning ascribed to them in this Section:
a) BREACH means the acquisition, access, use or disclosure of PHI in a manner not permitted under the Privacy Rule which compromises the security or privacy of the PHI.
b) Breach Notification Rule shall mean 45 CFR Part 164 Subpart D, as may be amended from time to time.
c) DESIGNATED RECORD SET means a group of records maintained by or for a Covered Entity that is: (a) the medical records and billing records about Individuals maintained by or for a covered health care provider; (b) the enrollment, payment, claims adjudication, and case or medical management record systems maintained by or for a health plan; or (c) used in whole or in part, by or for a Covered Entity to make decisions about Individuals. For these purposes, the term record means any item, collection, or grouping of information that includes PHI and is maintained, collected, used, or disseminated by or for a Covered Entity.
d) Electronic Protected Health Information ("EPHI") means Protected Health Information that is transmitted or maintained by or in electronic media, as defined in 45 CFR § 160.103.
e) HHS means the United States Department of Health and Human Services.
f) HIPAA RULES means the Privacy, Security, Breach Notification and Enforcement Rules at 45 CFR Part 160 and Part 164.
g) INDIVIDUAL means the person who is the subject of the PHI, and shall have the same meaning as the term "individual" as defined in 45 CFR § 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).
h) LIMITED DATA SET has the same meaning as the term "limited data set" in 45 CFR § 164.514(e)(2).
i) PARTIES means Client and SwervePay.
j) PRIVACY RULE means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR § 160 and § 164, as amended.
k) PROTECTED HEALTH INFORMATION ("PHI") has the same meaning as the term "protected health information" in 45 CFR § 160.103, limited to the information created or received by SwervePay from or on behalf of Client. References to PHI shall include EPHI.
l) REQUIRED BY LAW has the same meaning as the term "required by law" in 45 CFR § 164.103.
m) SECRETARY means the Secretary of the Department of Health and Human Services ("HHS") or his or her designee.
n) SECURITY INCIDENT has the same meaning as the term "security incident" in 45 CFR § 164.304, which generally means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system.
o) SECURITY RULE means the Security Standards for Protecting Electronic Health Information at 45 CFR § 160, § 162 and § 164, as amended.
p) TRANSACTION STANDARDS means the standards adopted by the Secretary under 45 CFR Part 162.
q) UNSECURED PHI has the same meaning set forth at 45 CFR § 164.402, as amended, and generally means PHI that is not secured through the use of technologies and methodologies that render such PHI unusable, unreadable, or indecipherable to unauthorized individuals through the use of a technology or methodology specified by the Secretary in guidance.
I.2 Other Terms. Other capitalized terms shall have the meaning ascribed to them in the context in which they first appear. Terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms in 45 CFR Parts 160, 162, and 164. Any reference to a regulation or section in the Code of Federal Regulations shall include any corresponding regulation subsequently issued regardless of the date of issue.
ARTICLE II
General Terms
General Terms
II.1 Interpretation of Provisions. In the event of an inconsistency between the provisions of this Agreement and the mandatory terms of the HIPAA Rules (as may be expressly amended from time to time by the HHS or as a result of final interpretations by HHS, an applicable court, or another applicable regulatory agency with authority over the Parties), the HIPAA Rules shall prevail.
II. 2. Provisions Permitted by HIPAA Rules. Where provisions of this Agreement are different from those mandated by the HIPAA Rules, but are nonetheless permitted by the HIPAA Rules, the provisions of the Agreement shall control.
II. 3. Conflicts with Services Agreement. In the event of an inconsistency between the provisions of this Agreement and the Services Agreement, the provisions of this Agreement shall prevail.
ARTICLE III
Obligations and Activities of Subcontractor
Obligations and Activities of Subcontractor
III. 1. Limits on Use and Disclosure. SwervePay agrees to not use or further disclose PHI other than as permitted or required by this Agreement or as Required by Law.
III. 2.Safeguards. SwervePay agrees to use reasonable and appropriate administrative, physical and technological safeguards to: (i) prevent use or disclosure of the PHI other than as provided for by this Agreement; and (ii) implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of EPHI that it creates, receives, maintains or transmits on behalf of Client as required by the Security Rule. SwervePay represents and warrants that it has implemented, and during the term of this Agreement shall maintain, comprehensive written privacy and security policies and procedures and the necessary administrative, technical and physical safeguards appropriate to the size and complexity of SwervePay operations and the nature and scope of its activities. SwervePay will comply with the Security Rule requirements set forth in Subpart C of 45 CFR Part 164, all of which are hereby incorporated into this Agreement.
III. 3.Application of Privacy Provisions. SwervePay may use and disclose PHI that SwervePay obtains or creates only if such use or disclosure is in compliance with each applicable requirement of 45 CFR § 164.504(e), relating to business associate agreements. The HIPAA Rules that relate to privacy and that are made applicable with respect to Client and SwervePay are hereby incorporated into this Agreement.
III. 4.Mitigation of Harm. SwervePay agrees to reasonably mitigate any harmful effect that is known to SwervePay of a use or disclosure of PHI by SwervePay, or any agent or subcontractor of SwervePay, in violation of the requirements of this Agreement or the HIPAA Rules.
III. 5 Report of Improper Use or Disclosure or of Security Incidents. SwervePay agrees promptly to report to Client any breach of security, intrusion, or unauthorized use or disclosure of the PHI not provided for by this Agreement, or any Security Incident of which SwervePay (or any of its agents or subcontractors) becomes aware. Such report shall be in writing and shall be reported to Client as soon as practicable after SwervePay becomes aware of such use or disclosure or Security Incident, but in no event more than forty-eight (48) hours following such date. SwervePay shall take reasonable and prompt corrective action to cure any such deficiencies and any action pertaining to such unauthorized disclosure required by applicable Federal and State laws and regulations. Notwithstanding the foregoing, the parties acknowledge and agree that this section constitutes notice by SwervePay to Client of the ongoing existence and occurrence of attempted but Unsuccessful Security Incidents (as defined below) for which no additional notice to Client shall be required. "Unsuccessful Security Incidents" shall include, but not be limited to, pings and other broadcast attacks on SwervePay's firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of PHI.
III. 6. Report of Breach of Unsecured PHI. In addition to the general obligations of SwervePay under Section 3.5 regarding reporting the improper use or disclosure of PHI and Security Incidents, SwervePay shall also promptly notify Client of a Breach of Unsecured PHI within forty-eight (48) hours of when SwervePay discovers such Breach. A Breach shall be treated as discovered by SwervePay as of the first day on which such Breach is known, or by exercising reasonable diligence would have been known, to any person, other than the person committing the Breach, who is an employee, officer, or other agent of SwervePay. SwervePay’ notification shall be in writing and shall include identification, to the extent possible, of each Individual whose Unsecured PHI has been, or is reasonably believed by SwervePay to have been subject to the Breach. SwervePay shall include the following information in its notification of Breach to Client:
(a) A description of the Breach, including the date of the Breach and the date of the discovery of the Breach, if known;
(b) A description of the types of Unsecured PHI that were involved in the Breach (such as whether full name, social security number, date of birth, home address, account number, credit card numbers, diagnosis, disability code or other types of PHI were involved);
(c) Any steps that Individuals should take to protect themselves from potential harm resulting from the Breach;
(d) A description of what SwervePay is doing to investigate the Breach, to mitigate the harm to Individuals and to protect against further Breaches; and
(e) Contact procedures for Individuals to ask questions or learn additional information, which shall include a toll free telephone number, an e-mail address, Web site or postal address.
In the event that some of the above listed information is not known by SwervePay at the time of notification of Client of the Breach, SwervePay shall provide such information to Client as soon as it becomes available to SwervePay, but in no event later than thirty (30) days after SwervePay discovers such Breach. SwervePay shall also provide such assistance and further information with regard to the Breach to Client as reasonably requested by Client in order for Covered Entities to timely meet their notice obligations to Individuals, the media, and/or the Secretary, as applicable, under 45 CFR §§ 164.404, 164.406, and 164.408. If a notification, notice, or posting required by the Breach Notification Rule would impede a criminal investigation or cause damage to national security, such notification shall be delayed as required by law enforcement pursuant to 45 CFR § 164.412.
III. 7. Agents and Subcontractors. In accordance with 45 CFR §§ 164.502(e)(1)(ii) and 164.308(b)(2), SwervePay agrees to ensure that any agent, including a subcontractor, to whom it provides PHI received from, or created or received by SwervePay on behalf of Client, agrees in writing to the similar restrictions and conditions that apply through this Agreement to SwervePay with respect to PHI. Such written agreement shall also require the agent or subcontractor to implement reasonable and appropriate administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of EPHI that it creates, receives, maintains or transmits on behalf of Client.
III. 8. Availability of Internal Practices, Books and Records. SwervePay shall make internal practices, books, and records relating to the use and disclosure of PHI received from, or received by SwervePay on behalf of Client available to the Secretary in a time and manner designated by the Secretary, for purposes of determining compliance with the HIPAA Rules. SwervePay shall notify Client, in writing, of any request by the Secretary under this Section
III. 9. Access to Records.
a) SwervePay shall provide access, at the request of Client, and in the time and manner reasonably designated by Client, to PHI in a Designated Record Set to Client or, as directed by Client, to an Individual, in order to meet the requirements under 45 CFR § 164.524 with regard to providing an Individual with a right to access the Individual's PHI.
b) SwervePay shall, at the request of Client and in the time and manner reasonably designated by Client, make PHI maintained by SwervePay available to Client, or as directed by Client, to a person or entity other than an Individual, for use and disclosure pursuant to a valid written authorization and maintain appropriate documentation for the period, including, but not limited to, copies of any written authorization by an Individual or his or her legal representative, to enable Client to fulfill its obligations under the Privacy Rule, including but not limited to 45 CFR § 164.508.
c) If any Individual requests access to, or the release pursuant to an authorization or otherwise of, PHI directly from SwervePay or its agents or subcontractors, SwervePay shall notify Client in writing within three (3) days of the request.
III. 10. Amendments to PHI. SwervePay agrees in the time and manner reasonably designated by Client to make PHI in a designated record set available for any amendments that a Covered Entity has agreed to make pursuant to 45 CFR § 164.526 or to otherwise allow such Covered Entity to comply with its obligations under 45 CFR § 164.526. If any Individual requests an amendment of PHI contained in a Designated Record Set directly from SwervePay or its agents or subcontractors, SwervePay shall notify Client in writing within three (3) days of the request.
a) SwervePay shall document such disclosures of PHI and information related to such disclosures as would be required for a Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR § 164.528. Such documentation shall be kept with regard to all disclosures of PHI except the disclosures described in 45 CFR § 164.528(a)(1). For each such disclosure, SwervePay shall document the following information: (i) the date of the disclosure; (ii) the name of the entity or person who received the PHI and, if known, the address of such entity or person; (iii) a brief description of the PHI disclosed; and (iv) a brief statement of the purpose of the disclosure that reasonably states the basis for the disclosure.
b) SwervePay shall provide to Client or an Individual, in the time and manner reasonably designated by Client, information collected in accordance with subsection (a) of this Section of this Agreement, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR § 164.528. In the event that a request for an accounting is delivered directly to SwervePay or its agent or subcontractor by an Individual or a party other than Client, SwervePay shall within three (3) days of such request forward it to Client in writing. SwervePay shall, unless otherwise directed by Client or as Required by Law, supply an accounting of disclosures of PHI only to Client.
III.12. Disclosure of Minimum PHI. SwervePay shall comply with the minimum necessary standard set forth in 45 CFR §164.502(b) when using, disclosing or requesting PHI from Client or other third party, and shall use, disclose or request the minimum PHI necessary to accomplish the intended purpose of the use, disclosure or request.
III. 13. Training. SwervePay shall provide appropriate training to its workforce in security, privacy, and confidentiality issues and regulations relating to PHI.
III. 14. Response to Subpoena. SwervePay shall promptly notify Client if it receives a subpoena or other legal process seeking the disclosure of PHI. SwervePay agrees to allow Client to control the response to any such subpoena or legal process.
III. 15. Notification of Claims. SwervePay shall promptly notify Client upon notification or receipt of any civil or criminal claims, demands, causes of action, lawsuits, or governmental enforcement actions arising out of or related to this Agreement or the PHI, regardless of whether Client and/or SwervePay are named as parties in such claims, demands, causes of action, lawsuits, or enforcement actions.
III. 16. Recordkeeping and Document Retention. SwervePay shall retain any documentation it creates or receives relating to its duties under this Agreement for the duration of this Agreement. Client shall have the right to reasonably access and copy any such documentation during the term of the Agreement. At the termination of this Agreement, SwervePay shall destroy all such documentation.
III. 17. Transaction Standards. If SwervePay conducts any transaction for Client for which a standard has been adopted by the Secretary under 45 CFR Part 162, the following shall apply:
a) SwervePay, its agents and subcontractors, shall conduct all transmissions of data required under the Agreement that are subject to the Transaction Standards in compliance with the Transaction Standards, as they may be amended from time to time. With respect to any such Transactions, neither Party shall: (i) change the definition, data condition, or use of a data element or segment in a Transaction Standard; (ii) add any data elements or segments to the maximum defined data set; (iii) use any code or data elements that are either marked “not used” in the Transaction Standard’s implementation specification or are not in the Transaction Standard’s implementation specification(s); or (iv) change the meaning or intent of the Transaction Standard’s implementation specification(s).
b) Each Party, at its own expense, shall provide and maintain the hardware, software, services and testing necessary to effectively and reliably conduct the applicable Transaction Standards.
III. 18. Restrictions on Remuneration, Marketing, and Fundraising. To the extent the Agreement would otherwise allow SwervePay to receive remuneration for PHI, SwervePay shall not directly or indirectly receive remuneration in exchange for any PHI as prohibited by 42 U.S.C. § 17935(d). To the extent that SwervePay is otherwise authorized under this Agreement to communicate about a product or service, it shall not make or cause to be made any communication about a product or service that is prohibited by 42 U.S.C. § 17936(a). To the extent that SwervePay is otherwise authorized under this Agreement to make a fundraising communication, it shall not make or cause to be made any written fundraising communication that is prohibited by 42 U.S.C. § 17936(b) and 45 CFR § 164.514(f).
ARTICLE IV
Permitted Uses and Disclosures by Subcontractor
Permitted Uses and Disclosures by Subcontractor
IV. 1. Use or Disclosure to Perform Functions, Activities, or Services. Except as otherwise limited in this Agreement, SwervePay may use or disclose PHI to perform those functions, activities, or services that SwervePay performs for, or on behalf of, Client, provided that such use or disclosure would not violate the Privacy Rule if done by Client. Any such use or disclosure shall be limited to those reasons and those individuals as necessary to meet SwervePay’ obligations. In all circumstances, SwervePay shall limit such uses and disclosures to the minimum amount of PHI that is necessary to fulfill those obligations.
IV. 2. Disclosures to Workforce. SwervePay shall not disclose PHI to any member of its workforce unless necessary to fulfill a purpose described in Section 4.1 and unless SwervePay has advised such person of SwervePay’ obligations under HIPAA Rules and of the consequences for such person and for SwervePay of violating the HIPAA Rules.
IV. 3. Appropriate Uses of PHI. Except as otherwise limited in this Agreement, SwervePay may use PHI for the following purposes: (a) the proper management and administration of SwervePay; (b) to carry out the legal responsibilities of SwervePay; (c) to report violations of the law to appropriate Federal and State authorities consistent with 45 CFR § 164.502(j)(1); (d) to carry out SwervePay obligations under the Service Agreement; or (e) as Required By Law.
IV. 4. Appropriate Disclosures of PHI; Confidentiality Assurances and Notification. Except as otherwise limited in this Agreement, SwervePay may disclose PHI to a third party to carry out the functions described in Section 4.1 or for the proper management and administration of SwervePay, or to carry out the legal responsibilities of SwervePay, provided that disclosures are Required By Law, or SwervePay obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and the person notifies SwervePay of any instances of which it is aware in which the confidentiality of the information has been breached.
IV. 5. Data Aggregation Services. If SwervePay provides data aggregation services, SwervePay may use PHI to provide Data Aggregation services as permitted by 42 CFR § 164.504(e)(2)(i)(B), except as otherwise provided by this Agreement.
ARTICLE V
Obligations of Client
Obligations of Client
V. 1. Change or Revocation of Permission. Client shall provide SwervePay with any changes in, or revocation of, permission by an Individual to use or disclose PHI, if such changes affect SwervePay’ permitted or required uses and disclosures. SwervePay shall comply with any such changes or revocations.
V. 2. Restrictions on Use or Disclosure. Client shall notify SwervePay of any restriction to the use or disclosure of PHI that a Covered Entity has agreed to in accordance with 45 CFR § 164.522. SwervePay shall comply with any such restrictions.
V. 3. No Request to Use or Disclose in Impermissible Manner. Except as necessary for the management and administrative activities of SwervePay as allowed in Article IV, Client shall not request SwervePay to use or disclose PHI in any manner that would not be permissible under the Privacy Rule if done by a Covered Entity or Client.
ARTICLE VI
Term and Termination
Term and Termination
VI. 1. Term. The Term of this Agreement shall be effective as of the date first documented above, and shall terminate when all PHI provided by Client to SwervePay, or created or received by SwervePay on behalf of Client, is destroyed or returned to Client.
VI. 2. Termination with Cause. Upon either Party's knowledge of a material breach by the other Party, the non-breaching Party, in its discretion, may take either or both of the following actions:
a) Provide an opportunity (in a reasonable time frame determined by the non-breaching Party) for the breaching Party to cure the breach or end the violation, and if the breaching Party does not cure the breach or end the violation, terminate this Agreement; or
b) Immediately terminate this Agreement if the breaching Party, in the non-breaching Party's discretion, has breached a material term of this Agreement and cure is not possible.
VI. 3. Judicial or Administrative Proceedings. Either Party may terminate this Agreement and any other agreement or relationship between the Parties related to the Services by written notice to the other Party, effective immediately, if: (a) the other Party is named as a defendant in a criminal proceeding for a violation of HIPAA, the HIPAA Rules, or other security or privacy laws; or (b) a finding or stipulation that the other Party has violated any standard or requirement of HIPAA, the HIPAA Rules, or any other security or privacy laws is made in any administrative or civil proceeding in which the Party has been joined.
VI. 4. Changes in Law. In the event of passage of a law or promulgation of a regulation or an action or investigation by any regulatory body which would prohibit the relationship between the Parties, or the operations of either party with regard to the subject of this Agreement, the Parties shall attempt in good faith to renegotiate the Agreement to delete the unlawful provision(s) so that the Agreement can continue. If the Parties are unable to renegotiate the Agreement within thirty (30) days, the Agreement, and any other agreement or relationship between the Parties related to the Services shall terminate immediately, upon written notice of either party.
VI. 5. Effect of Termination.
a) Except as provided in paragraph (b) of this Section VI.5, upon termination of this Agreement for any reason, SwervePay shall destroy all PHI received from Client, or received by SwervePay on behalf of Client. This provision shall apply to PHI that is in the possession of subcontractors or agents of SwervePay. If requested by Client in writing, SwervePay shall certify in writing to Client that such PHI has been destroyed.
b) In the event that SwervePay determines that it is necessary to retain some or all of the PHI to continue its proper management and administration or to carry out its legal responsibilities, SwervePay shall not use or disclose such retained PHI other than for the purposes for which the PHI was retained and subject to the same conditions set forth in this Agreement that applied prior to this Agreement's termination. SwervePay shall destroy the retained PHI pursuant to Section VI.5(a) when it is no longer needed by SwervePay for its proper management and administration or to carry out its legal responsibilities.
ARTICLE VII
Miscellaneous
Miscellaneous
VII. 1. Assignment. This Agreement shall be binding upon and inure to the benefit of the respective legal successors of the Parties. Neither this Agreement nor any rights or obligations hereunder may be assigned, in whole or in part, without the prior written consent of the other Party. Notwithstanding the foregoing, this Agreement may be assigned as part of an assignment of the Service Agreement without obtaining the other party’s prior written consent provided such assignment complies with the requirement of the Service Agreement.
VII. 2. Property Rights. All PHI shall be and remain the exclusive property of Client and/or Covered Entity. SwervePay agrees that it acquires no title or rights to the PHI, including any de-identified information, as a result of this Agreement.
VII. 3. Preemption of Other Agreements and Liability Limitations/Exclusions. To the extent that any provision of this Agreement conflicts with any other agreement between the Parties, whether written or oral, the provisions of this Agreement shall govern. Furthermore, and by way of example and not limitation, the termination provisions of this Agreement shall supersede the termination provisions of any other agreement, including, but not limited to, any limitations on terminating any other agreement (such as notice periods) or any provisions requiring a period to cure.
VII. 4 Survival. The respective rights and obligations of Subcontractor under Section VI.5 of this Agreement shall survive the termination of this Agreement.
VII. 5. Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Client to comply with the requirements of HIPAA, and the HIPAA Rules.
VII. 6. Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended, and for which compliance is required.
VII. 7. Entire Agreement. This document, together with any written schedules, amendments and addenda, constitute the entire agreement of the Parties and supersedes all prior oral and written agreements or understandings between them with respect to the matters provided for herein.
VII. 8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana to the extent that the provisions of HIPAA or the HIPAA Rules do not preempt the laws of the State of Indiana.
VII. 9. Modifications. Any modifications to this Agreement shall be valid only if made in writing and signed by a duly authorized agent of both Parties.
VII. 10.Notice. Any notice required or permitted to be given by either party under this Agreement shall be sufficient if in writing and hand delivered (including delivery by courier) or sent by postage prepaid certified mail return receipt requested, as follows:
If to Client:
At the address indicated below.
If to SwervePay:
SwervePay, LLC
SwervePay, LLC
Attn: Legal Department
1150 West Kilgore Avenue
Muncie, IN 47305-1588
VII. 11. Severability. The Parties agree that if a court determines, contrary to the intent of the Parties, that any of the provisions or terms of this Agreement are unreasonable or contrary to public policy, or invalid or unenforceable for any reason in fact, law, or equity, such unenforceability or validity shall not affect the enforceability or validity of the remaining provisions and terms of this Agreement. Should any particular provision of this Agreement be held unreasonable or unenforceable for any reason, then such provision shall be given effect and enforced to the fullest extent that would be reasonable and enforceable.
VII.12. Waiver of Breach. No failure or delay by either party in exercising its rights under this Agreement shall operate as a waiver of such rights, and no waiver of any breach shall constitute a waiver of any prior, concurrent, or subsequent breach.
VII. 13. Titles. Titles or headings are used in this Agreement for reference only and shall not have any effect on the construction or legal effect of this Agreement.
VII. 14. Independent Contractors. For purposes of this Agreement, SwervePay and Client are and will act at all times as independent contractors. None of the provisions of this Agreement are intended to create, nor shall be deemed or construed to create, any relationship other than that of independent entities contracting with each other for the purpose of effecting this Agreement. None of the provisions of this Agreement shall establish or be deemed or construed to establish any partnership, agency, employment agreement or joint venture between the Parties.
VII. 15. No Third Party Beneficiaries. It is the intent of the Parties that this Agreement is to be effective only in regards to their rights and obligations with respect to each other. It is expressly not the intent of the Parties to create any independent rights in any third party or to make any third-party beneficiary of this Agreement and no privity of contract shall exist between third parties and each party.
Client: {{{Customer_Legal_Name}}} |
By: {{{Customer_Signor}}} |
Title: {{{Customer_Signor_Title}}} |
Date of Execution: {{{Todays_Date}}} |
Address: {{{Customer_Street_Address}}} {{{Customer_City}}} {{{Customer_ZipCode}}} {{{Business_State}}} |
Email: {{{Customer_Signor_Email}}} |
Effective March 31, 2021 to October 6, 2021
DownloadTable of Contents
BUSINESS ASSOCIATE SUBCONTRACTOR AGREEMENT
THIS BUSINESS ASSOCIATE SUBCONTRACTOR AGREEMENT ("Agreement") is entered into on the date indicated below by and between you ("Client") and SwervePay, LLC ("SwervePay").
Client provides certain functions, activities and/or services as a "business associate" to certain entities that are "covered entities", as both terms are defined in Section 160.103 of title 45 of the Code of Federal Regulations ("CFR").
Pursuant to the SwervePay Terms and Conditions ("Service Agreement"), SwervePay provides certain functions, activities or services (collectively, "Services") to Client as a "subcontractor", as that term is defined in 45 CFR § 160.103.
In order for SwervePay to perform the Services required by the Service Agreement, Client will make available and/or transfer to SwervePay certain Protected Health Information and Electronic Health Information (collectively, "PHI") that is confidential and must be afforded special treatment and protection pursuant to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and regulations issued thereunder, as amended from time to time, and the Health Information Technology for Economic and Clinical Health Act, as incorporated in Title XIII of the American Recovery and Reinvestment Act of 2009 and its implementing regulations as issued from time to time ("HITECH Act").
SwervePay will have access to and/or receive from Client certain PHI that can be used or disclosed only in accordance with this Agreement and the HIPAA Rules (as defined below).
Client and SwervePay intend to protect the privacy and provide for the security of PHI disclosed to SwervePay pursuant to this Agreement in compliance with HIPAA and the HIPAA Rules.
NOW, THEREFORE, Client and SwervePay agree as follows:
ARTICLE I.
Definitions
I.1 Meaning of Terms.
The following terms shall have the meaning ascribed to them in this Section:
a) BREACH means the acquisition, access, use or disclosure of PHI in a manner not permitted under the Privacy Rule which compromises the security or privacy of the PHI.
b) Breach Notification Rule shall mean 45 CFR Part 164 Subpart D, as may be amended from time to time.
c) DESIGNATED RECORD SET means a group of records maintained by or for a Covered Entity that is: (a) the medical records and billing records about Individuals maintained by or for a covered health care provider; (b) the enrollment, payment, claims adjudication, and case or medical management record systems maintained by or for a health plan; or (c) used in whole or in part, by or for a Covered Entity to make decisions about Individuals. For these purposes, the term record means any item, collection, or grouping of information that includes PHI and is maintained, collected, used, or disseminated by or for a Covered Entity.
d) Electronic Protected Health Information ("EPHI") means Protected Health Information that is transmitted or maintained by or in electronic media, as defined in 45 CFR § 160.103.
e) HHS means the United States Department of Health and Human Services.
f) HIPAA RULES means the Privacy, Security, Breach Notification and Enforcement Rules at 45 CFR Part 160 and Part 164.
g) INDIVIDUAL means the person who is the subject of the PHI, and shall have the same meaning as the term "individual" as defined in 45 CFR § 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).
h) LIMITED DATA SET has the same meaning as the term "limited data set" in 45 CFR § 164.514(e)(2).
i) PARTIES means Client and SwervePay.
j) PRIVACY RULE means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR § 160 and § 164, as amended.
k) PROTECTED HEALTH INFORMATION ("PHI") has the same meaning as the term "protected health information" in 45 CFR § 160.103, limited to the information created or received by SwervePay from or on behalf of Client. References to PHI shall include EPHI.
l) REQUIRED BY LAW has the same meaning as the term "required by law" in 45 CFR § 164.103.
m) SECRETARY means the Secretary of the Department of Health and Human Services ("HHS") or his or her designee.
n) SECURITY INCIDENT has the same meaning as the term "security incident" in 45 CFR § 164.304, which generally means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system.
o) SECURITY RULE means the Security Standards for Protecting Electronic Health Information at 45 CFR § 160, § 162 and § 164, as amended.
p) TRANSACTION STANDARDS means the standards adopted by the Secretary under 45 CFR Part 162.
q) UNSECURED PHI has the same meaning set forth at 45 CFR § 164.402, as amended, and generally means PHI that is not secured through the use of technologies and methodologies that render such PHI unusable, unreadable, or indecipherable to unauthorized individuals through the use of a technology or methodology specified by the Secretary in guidance.
I.2 Other Terms. Other capitalized terms shall have the meaning ascribed to them in the context in which they first appear. Terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms in 45 CFR Parts 160, 162, and 164. Any reference to a regulation or section in the Code of Federal Regulations shall include any corresponding regulation subsequently issued regardless of the date of issue.
ARTICLE II
General Terms
II.1 Interpretation of Provisions. In the event of an inconsistency between the provisions of this Agreement and the mandatory terms of the HIPAA Rules (as may be expressly amended from time to time by the HHS or as a result of final interpretations by HHS, an applicable court, or another applicable regulatory agency with authority over the Parties), the HIPAA Rules shall prevail.
II. 2. Provisions Permitted by HIPAA Rules. Where provisions of this Agreement are different from those mandated by the HIPAA Rules, but are nonetheless permitted by the HIPAA Rules, the provisions of the Agreement shall control.
II. 3. Conflicts with Services Agreement. In the event of an inconsistency between the provisions of this Agreement and the Services Agreement, the provisions of this Agreement shall prevail.
ARTICLE III
Obligations and Activities of Subcontractor
III. 1. Limits on Use and Disclosure. SwervePay agrees to not use or further disclose PHI other than as permitted or required by this Agreement or as Required by Law.
III. 2.Safeguards. SwervePay agrees to use reasonable and appropriate administrative, physical and technological safeguards to: (i) prevent use or disclosure of the PHI other than as provided for by this Agreement; and (ii) implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of EPHI that it creates, receives, maintains or transmits on behalf of Client as required by the Security Rule. SwervePay represents and warrants that it has implemented, and during the term of this Agreement shall maintain, comprehensive written privacy and security policies and procedures and the necessary administrative, technical and physical safeguards appropriate to the size and complexity of SwervePay operations and the nature and scope of its activities. SwervePay will comply with the Security Rule requirements set forth in Subpart C of 45 CFR Part 164, all of which are hereby incorporated into this Agreement.
III. 3.Application of Privacy Provisions. SwervePay may use and disclose PHI that SwervePay obtains or creates only if such use or disclosure is in compliance with each applicable requirement of 45 CFR § 164.504(e), relating to business associate agreements. The HIPAA Rules that relate to privacy and that are made applicable with respect to Client and SwervePay are hereby incorporated into this Agreement.
III. 4.Mitigation of Harm. SwervePay agrees to reasonably mitigate any harmful effect that is known to SwervePay of a use or disclosure of PHI by SwervePay, or any agent or subcontractor of SwervePay, in violation of the requirements of this Agreement or the HIPAA Rules.
III. 5 Report of Improper Use or Disclosure or of Security Incidents. SwervePay agrees promptly to report to Client any breach of security, intrusion, or unauthorized use or disclosure of the PHI not provided for by this Agreement, or any Security Incident of which SwervePay (or any of its agents or subcontractors) becomes aware. Such report shall be in writing and shall be reported to Client as soon as practicable after SwervePay becomes aware of such use or disclosure or Security Incident, but in no event more than forty-eight (48) hours following such date. SwervePay shall take reasonable and prompt corrective action to cure any such deficiencies and any action pertaining to such unauthorized disclosure required by applicable Federal and State laws and regulations. Notwithstanding the foregoing, the parties acknowledge and agree that this section constitutes notice by SwervePay to Client of the ongoing existence and occurrence of attempted but Unsuccessful Security Incidents (as defined below) for which no additional notice to Client shall be required. "Unsuccessful Security Incidents" shall include, but not be limited to, pings and other broadcast attacks on SwervePay's firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of PHI.
III. 6. Report of Breach of Unsecured PHI. In addition to the general obligations of SwervePay under Section 3.5 regarding reporting the improper use or disclosure of PHI and Security Incidents, SwervePay shall also promptly notify Client of a Breach of Unsecured PHI within forty-eight (48) hours of when SwervePay discovers such Breach. A Breach shall be treated as discovered by SwervePay as of the first day on which such Breach is known, or by exercising reasonable diligence would have been known, to any person, other than the person committing the Breach, who is an employee, officer, or other agent of SwervePay. SwervePay’ notification shall be in writing and shall include identification, to the extent possible, of each Individual whose Unsecured PHI has been, or is reasonably believed by SwervePay to have been subject to the Breach. SwervePay shall include the following information in its notification of Breach to Client:
(a) A description of the Breach, including the date of the Breach and the date of the discovery of the Breach, if known;
(b) A description of the types of Unsecured PHI that were involved in the Breach (such as whether full name, social security number, date of birth, home address, account number, credit card numbers, diagnosis, disability code or other types of PHI were involved);
(c) Any steps that Individuals should take to protect themselves from potential harm resulting from the Breach;
(d) A description of what SwervePay is doing to investigate the Breach, to mitigate the harm to Individuals and to protect against further Breaches; and
(e) Contact procedures for Individuals to ask questions or learn additional information, which shall include a toll free telephone number, an e-mail address, Web site or postal address.
In the event that some of the above listed information is not known by SwervePay at the time of notification of Client of the Breach, SwervePay shall provide such information to Client as soon as it becomes available to SwervePay, but in no event later than thirty (30) days after SwervePay discovers such Breach. SwervePay shall also provide such assistance and further information with regard to the Breach to Client as reasonably requested by Client in order for Covered Entities to timely meet their notice obligations to Individuals, the media, and/or the Secretary, as applicable, under 45 CFR §§ 164.404, 164.406, and 164.408. If a notification, notice, or posting required by the Breach Notification Rule would impede a criminal investigation or cause damage to national security, such notification shall be delayed as required by law enforcement pursuant to 45 CFR § 164.412.
III. 7. Agents and Subcontractors. In accordance with 45 CFR §§ 164.502(e)(1)(ii) and 164.308(b)(2), SwervePay agrees to ensure that any agent, including a subcontractor, to whom it provides PHI received from, or created or received by SwervePay on behalf of Client, agrees in writing to the similar restrictions and conditions that apply through this Agreement to SwervePay with respect to PHI. Such written agreement shall also require the agent or subcontractor to implement reasonable and appropriate administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of EPHI that it creates, receives, maintains or transmits on behalf of Client.
III. 8. Availability of Internal Practices, Books and Records. SwervePay shall make internal practices, books, and records relating to the use and disclosure of PHI received from, or received by SwervePay on behalf of Client available to the Secretary in a time and manner designated by the Secretary, for purposes of determining compliance with the HIPAA Rules. SwervePay shall notify Client, in writing, of any request by the Secretary under this Section
III. 9. Access to Records.
a) SwervePay shall provide access, at the request of Client, and in the time and manner reasonably designated by Client, to PHI in a Designated Record Set to Client or, as directed by Client, to an Individual, in order to meet the requirements under 45 CFR § 164.524 with regard to providing an Individual with a right to access the Individual's PHI.
b) SwervePay shall, at the request of Client and in the time and manner reasonably designated by Client, make PHI maintained by SwervePay available to Client, or as directed by Client, to a person or entity other than an Individual, for use and disclosure pursuant to a valid written authorization and maintain appropriate documentation for the period, including, but not limited to, copies of any written authorization by an Individual or his or her legal representative, to enable Client to fulfill its obligations under the Privacy Rule, including but not limited to 45 CFR § 164.508.
c) If any Individual requests access to, or the release pursuant to an authorization or otherwise of, PHI directly from SwervePay or its agents or subcontractors, SwervePay shall notify Client in writing within three (3) days of the request.
III. 10. Amendments to PHI. SwervePay agrees in the time and manner reasonably designated by Client to make PHI in a designated record set available for any amendments that a Covered Entity has agreed to make pursuant to 45 CFR § 164.526 or to otherwise allow such Covered Entity to comply with its obligations under 45 CFR § 164.526. If any Individual requests an amendment of PHI contained in a Designated Record Set directly from SwervePay or its agents or subcontractors, SwervePay shall notify Client in writing within three (3) days of the request.
a) SwervePay shall document such disclosures of PHI and information related to such disclosures as would be required for a Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR § 164.528. Such documentation shall be kept with regard to all disclosures of PHI except the disclosures described in 45 CFR § 164.528(a)(1). For each such disclosure, SwervePay shall document the following information: (i) the date of the disclosure; (ii) the name of the entity or person who received the PHI and, if known, the address of such entity or person; (iii) a brief description of the PHI disclosed; and (iv) a brief statement of the purpose of the disclosure that reasonably states the basis for the disclosure.
b) SwervePay shall provide to Client or an Individual, in the time and manner reasonably designated by Client, information collected in accordance with subsection (a) of this Section of this Agreement, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR § 164.528. In the event that a request for an accounting is delivered directly to SwervePay or its agent or subcontractor by an Individual or a party other than Client, SwervePay shall within three (3) days of such request forward it to Client in writing. SwervePay shall, unless otherwise directed by Client or as Required by Law, supply an accounting of disclosures of PHI only to Client.
III.12. Disclosure of Minimum PHI. SwervePay shall comply with the minimum necessary standard set forth in 45 CFR §164.502(b) when using, disclosing or requesting PHI from Client or other third party, and shall use, disclose or request the minimum PHI necessary to accomplish the intended purpose of the use, disclosure or request.
III. 13. Training. SwervePay shall provide appropriate training to its workforce in security, privacy, and confidentiality issues and regulations relating to PHI.
III. 14. Response to Subpoena. SwervePay shall promptly notify Client if it receives a subpoena or other legal process seeking the disclosure of PHI. SwervePay agrees to allow Client to control the response to any such subpoena or legal process.
III. 15. Notification of Claims. SwervePay shall promptly notify Client upon notification or receipt of any civil or criminal claims, demands, causes of action, lawsuits, or governmental enforcement actions arising out of or related to this Agreement or the PHI, regardless of whether Client and/or SwervePay are named as parties in such claims, demands, causes of action, lawsuits, or enforcement actions.
III. 16. Recordkeeping and Document Retention. SwervePay shall retain any documentation it creates or receives relating to its duties under this Agreement for the duration of this Agreement. Client shall have the right to reasonably access and copy any such documentation during the term of the Agreement. At the termination of this Agreement, SwervePay shall destroy all such documentation.
III. 17. Transaction Standards. If SwervePay conducts any transaction for Client for which a standard has been adopted by the Secretary under 45 CFR Part 162, the following shall apply:
a) SwervePay, its agents and subcontractors, shall conduct all transmissions of data required under the Agreement that are subject to the Transaction Standards in compliance with the Transaction Standards, as they may be amended from time to time. With respect to any such Transactions, neither Party shall: (i) change the definition, data condition, or use of a data element or segment in a Transaction Standard; (ii) add any data elements or segments to the maximum defined data set; (iii) use any code or data elements that are either marked “not used” in the Transaction Standard’s implementation specification or are not in the Transaction Standard’s implementation specification(s); or (iv) change the meaning or intent of the Transaction Standard’s implementation specification(s).
b) Each Party, at its own expense, shall provide and maintain the hardware, software, services and testing necessary to effectively and reliably conduct the applicable Transaction Standards.
III. 18. Restrictions on Remuneration, Marketing, and Fundraising. To the extent the Agreement would otherwise allow SwervePay to receive remuneration for PHI, SwervePay shall not directly or indirectly receive remuneration in exchange for any PHI as prohibited by 42 U.S.C. § 17935(d). To the extent that SwervePay is otherwise authorized under this Agreement to communicate about a product or service, it shall not make or cause to be made any communication about a product or service that is prohibited by 42 U.S.C. § 17936(a). To the extent that SwervePay is otherwise authorized under this Agreement to make a fundraising communication, it shall not make or cause to be made any written fundraising communication that is prohibited by 42 U.S.C. § 17936(b) and 45 CFR § 164.514(f).
ARTICLE IV
Permitted Uses and Disclosures by Subcontractor
IV. 1. Use or Disclosure to Perform Functions, Activities, or Services. Except as otherwise limited in this Agreement, SwervePay may use or disclose PHI to perform those functions, activities, or services that SwervePay performs for, or on behalf of, Client, provided that such use or disclosure would not violate the Privacy Rule if done by Client. Any such use or disclosure shall be limited to those reasons and those individuals as necessary to meet SwervePay’ obligations. In all circumstances, SwervePay shall limit such uses and disclosures to the minimum amount of PHI that is necessary to fulfill those obligations.
IV. 2. Disclosures to Workforce. SwervePay shall not disclose PHI to any member of its workforce unless necessary to fulfill a purpose described in Section 4.1 and unless SwervePay has advised such person of SwervePay’ obligations under HIPAA Rules and of the consequences for such person and for SwervePay of violating the HIPAA Rules.
IV. 3. Appropriate Uses of PHI. Except as otherwise limited in this Agreement, SwervePay may use PHI for the following purposes: (a) the proper management and administration of SwervePay; (b) to carry out the legal responsibilities of SwervePay; (c) to report violations of the law to appropriate Federal and State authorities consistent with 45 CFR § 164.502(j)(1); (d) to carry out SwervePay obligations under the Service Agreement; or (e) as Required By Law.
IV. 4. Appropriate Disclosures of PHI; Confidentiality Assurances and Notification. Except as otherwise limited in this Agreement, SwervePay may disclose PHI to a third party to carry out the functions described in Section 4.1 or for the proper management and administration of SwervePay, or to carry out the legal responsibilities of SwervePay, provided that disclosures are Required By Law, or SwervePay obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and the person notifies SwervePay of any instances of which it is aware in which the confidentiality of the information has been breached.
IV. 5. Data Aggregation Services. If SwervePay provides data aggregation services, SwervePay may use PHI to provide Data Aggregation services as permitted by 42 CFR § 164.504(e)(2)(i)(B), except as otherwise provided by this Agreement.
ARTICLE V
Obligations of Client
V. 1. Change or Revocation of Permission. Client shall provide SwervePay with any changes in, or revocation of, permission by an Individual to use or disclose PHI, if such changes affect SwervePay’ permitted or required uses and disclosures. SwervePay shall comply with any such changes or revocations.
V. 2. Restrictions on Use or Disclosure. Client shall notify SwervePay of any restriction to the use or disclosure of PHI that a Covered Entity has agreed to in accordance with 45 CFR § 164.522. SwervePay shall comply with any such restrictions.
V. 3. No Request to Use or Disclose in Impermissible Manner. Except as necessary for the management and administrative activities of SwervePay as allowed in Article IV, Client shall not request SwervePay to use or disclose PHI in any manner that would not be permissible under the Privacy Rule if done by a Covered Entity or Client.
ARTICLE VI
Term and Termination
VI. 1. Term. The Term of this Agreement shall be effective as of the date first documented above, and shall terminate when all PHI provided by Client to SwervePay, or created or received by SwervePay on behalf of Client, is destroyed or returned to Client.
VI. 2. Termination with Cause. Upon either Party's knowledge of a material breach by the other Party, the non-breaching Party, in its discretion, may take either or both of the following actions:
a) Provide an opportunity (in a reasonable time frame determined by the non-breaching Party) for the breaching Party to cure the breach or end the violation, and if the breaching Party does not cure the breach or end the violation, terminate this Agreement; or
b) Immediately terminate this Agreement if the breaching Party, in the non-breaching Party's discretion, has breached a material term of this Agreement and cure is not possible.
VI. 3. Judicial or Administrative Proceedings. Either Party may terminate this Agreement and any other agreement or relationship between the Parties related to the Services by written notice to the other Party, effective immediately, if: (a) the other Party is named as a defendant in a criminal proceeding for a violation of HIPAA, the HIPAA Rules, or other security or privacy laws; or (b) a finding or stipulation that the other Party has violated any standard or requirement of HIPAA, the HIPAA Rules, or any other security or privacy laws is made in any administrative or civil proceeding in which the Party has been joined.
VI. 4. Changes in Law. In the event of passage of a law or promulgation of a regulation or an action or investigation by any regulatory body which would prohibit the relationship between the Parties, or the operations of either party with regard to the subject of this Agreement, the Parties shall attempt in good faith to renegotiate the Agreement to delete the unlawful provision(s) so that the Agreement can continue. If the Parties are unable to renegotiate the Agreement within thirty (30) days, the Agreement, and any other agreement or relationship between the Parties related to the Services shall terminate immediately, upon written notice of either party.
VI. 5. Effect of Termination.
a) Except as provided in paragraph (b) of this Section VI.5, upon termination of this Agreement for any reason, SwervePay shall destroy all PHI received from Client, or received by SwervePay on behalf of Client. This provision shall apply to PHI that is in the possession of subcontractors or agents of SwervePay. If requested by Client in writing, SwervePay shall certify in writing to Client that such PHI has been destroyed.
b) In the event that SwervePay determines that it is necessary to retain some or all of the PHI to continue its proper management and administration or to carry out its legal responsibilities, SwervePay shall not use or disclose such retained PHI other than for the purposes for which the PHI was retained and subject to the same conditions set forth in this Agreement that applied prior to this Agreement's termination. SwervePay shall destroy the retained PHI pursuant to Section VI.5(a) when it is no longer needed by SwervePay for its proper management and administration or to carry out its legal responsibilities.
ARTICLE VII
Miscellaneous
VII. 1. Assignment. This Agreement shall be binding upon and inure to the benefit of the respective legal successors of the Parties. Neither this Agreement nor any rights or obligations hereunder may be assigned, in whole or in part, without the prior written consent of the other Party. Notwithstanding the foregoing, this Agreement may be assigned as part of an assignment of the Service Agreement without obtaining the other party’s prior written consent provided such assignment complies with the requirement of the Service Agreement.
VII. 2. Property Rights. All PHI shall be and remain the exclusive property of Client and/or Covered Entity. SwervePay agrees that it acquires no title or rights to the PHI, including any de-identified information, as a result of this Agreement.
VII. 3. Preemption of Other Agreements and Liability Limitations/Exclusions. To the extent that any provision of this Agreement conflicts with any other agreement between the Parties, whether written or oral, the provisions of this Agreement shall govern. Furthermore, and by way of example and not limitation, the termination provisions of this Agreement shall supersede the termination provisions of any other agreement, including, but not limited to, any limitations on terminating any other agreement (such as notice periods) or any provisions requiring a period to cure.
VII. 4 Survival. The respective rights and obligations of Subcontractor under Section VI.5 of this Agreement shall survive the termination of this Agreement.
VII. 5. Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Client to comply with the requirements of HIPAA, and the HIPAA Rules.
VII. 6. Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended, and for which compliance is required.
VII. 7. Entire Agreement. This document, together with any written schedules, amendments and addenda, constitute the entire agreement of the Parties and supersedes all prior oral and written agreements or understandings between them with respect to the matters provided for herein.
VII. 8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana to the extent that the provisions of HIPAA or the HIPAA Rules do not preempt the laws of the State of Indiana.
VII. 9. Modifications. Any modifications to this Agreement shall be valid only if made in writing and signed by a duly authorized agent of both Parties.
VII. 10.Notice. Any notice required or permitted to be given by either party under this Agreement shall be sufficient if in writing and hand delivered (including delivery by courier) or sent by postage prepaid certified mail return receipt requested, as follows:
If to Client:
At the address indicated below.
If to SwervePay:
SwervePay, LLC
SwervePay, LLC
Attn: Legal Department
1150 West Kilgore Avenue
Muncie, IN 47305-1588
VII. 11. Severability. The Parties agree that if a court determines, contrary to the intent of the Parties, that any of the provisions or terms of this Agreement are unreasonable or contrary to public policy, or invalid or unenforceable for any reason in fact, law, or equity, such unenforceability or validity shall not affect the enforceability or validity of the remaining provisions and terms of this Agreement. Should any particular provision of this Agreement be held unreasonable or unenforceable for any reason, then such provision shall be given effect and enforced to the fullest extent that would be reasonable and enforceable.
VII.12. Waiver of Breach. No failure or delay by either party in exercising its rights under this Agreement shall operate as a waiver of such rights, and no waiver of any breach shall constitute a waiver of any prior, concurrent, or subsequent breach.
VII. 13. Titles. Titles or headings are used in this Agreement for reference only and shall not have any effect on the construction or legal effect of this Agreement.
VII. 14. Independent Contractors. For purposes of this Agreement, SwervePay and Client are and will act at all times as independent contractors. None of the provisions of this Agreement are intended to create, nor shall be deemed or construed to create, any relationship other than that of independent entities contracting with each other for the purpose of effecting this Agreement. None of the provisions of this Agreement shall establish or be deemed or construed to establish any partnership, agency, employment agreement or joint venture between the Parties.
VII. 15. No Third Party Beneficiaries. It is the intent of the Parties that this Agreement is to be effective only in regards to their rights and obligations with respect to each other. It is expressly not the intent of the Parties to create any independent rights in any third party or to make any third-party beneficiary of this Agreement and no privity of contract shall exist between third parties and each party.
Date: {{{Todays_Date}}} |
By: {{{Customer_Legal_Name}}} |
Name: {{{Customer_Signor}}} |
Title: {{{Customer_Signor_Title}}} |
Address: {{{Customer_Street_Address}}} |
{{{Customer_City}}}, {{{Customer_State}}} {{{Customer_ZipCode}}} |
Email: {{{Customer_Signor_Email}}} |
Schedule A: Anytime 080521
Effective August 10, 2021
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SCHEDULE A
Fee Schedule | Rate | Quantity |
Includes: SwervePay Software and Services | 2.85% 2.25% $0.25 | Processed Volume on Non-Swipe Transactions Processed Volume Swipe Transactions Per Transaction |
One Time Fees (if applicable in a given month) | $25.00 $15.00 $35.00 $25.00 | Monthly Minimum Fee ACH Settlement Return Fee Per Dispute Fee PCI Non Compliance Fee |
Device / Readers: M130's | $130.00 | Per Device |
{{{Business_Legal_Name}}}
{{{Business_Contact_Name}}}
Effective August 6, 2021 to August 10, 2021
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SCHEDULE A
Fee Schedule | Rate | Quantity |
Includes: SwervePay Software and Services | 2.90% 2.50% $0.30 | Processed Volume on Non-Swipe Transactions Processed Volume Swipe Transactions Per Transaction |
One Time Fees (if applicable in a given month) | $25.00 $15.00 $35.00 $25.00 | Monthly Minimum Fee ACH Settlement Return Fee Per Dispute Fee PCI Non Compliance Fee |
Device / Readers: M130's | $130.00 | Per Device |
{{{Business_Legal_Name}}}
{{{Business_Contact_Name}}}
Schedule A: SMS 080521
Effective August 6, 2021
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SCHEDULE A
Fee Schedule | Rate | Quantity |
Includes: SwervePay Software and Services | 2.95% 2.25% $0.30 | Processed Volume on Non-Swipe Transactions Processed Volume Swipe Transactions Per Transaction |
One Time Fees (if applicable in a given month) | $25.00 $15.00 $35.00 $25.00 | Monthly Minimum Fee ACH Settlement Return Fee Per Dispute Fee PCI Non Compliance Fee |
Device / Readers: M130's | $130.00 | Per Device |
{{{Business_Legal_Name}}}
{{{Business_Contact_Name}}}
Effective August 6, 2021 to August 6, 2021
DownloadTable of Contents
SCHEDULE A
Fee Schedule | Rate | Quantity |
Includes: SwervePay Software and Services | 2.95% 2.25% $0.30 | Processed Volume on Non-Swipe Transactions Processed Volume Swipe Transactions Per Transaction |
One Time Fees (if applicable in a given month) | $25.00 $15.00 $35.00 $25.00 | Monthly Minimum Fee ACH Settlement Return Fee Per Dispute Fee PCI Non Compliance Fee |
Device / Readers: M130's | $130.00 | Per Device |
{{{Business_Legal_Name}}}
{{{Business_Contact_Name}}}
DDA Change Request
Effective October 14, 2021
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Authorized Signer X____________________________
FAX Request to
_____________________________________________________________________________________
NOTICE – IN PLACE OF THE ABOVE:
A BANK LETTER VALIDATING THE BANK ACCOUNT INFORMATION, ON LETTERHEAD, AND SIGNED IS ALSO ACCEPTABLE.
Effective October 11, 2021 to October 14, 2021
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Authorized Signer X____________________________
FAX Request to
_____________________________________________________________________________________
NOTICE – IN PLACE OF THE ABOVE:
A BANK LETTER VALIDATING THE BANK ACCOUNT INFORMATION, ON LETTERHEAD, AND SIGNED IS ALSO ACCEPTABLE.
Effective October 11, 2021 to October 11, 2021
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Authorized Signer X____________________________
FAX Request to
_____________________________________________________________________________________
NOTICE – IN PLACE OF THE ABOVE:
A BANK LETTER VALIDATING THE BANK ACCOUNT INFORMATION, ON LETTERHEAD, AND SIGNED IS ALSO ACCEPTABLE.
Effective October 11, 2021 to October 11, 2021
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Authorized Signe
r X____________
________________
FAX Request to
__________________________________________
___________________________________________
NOTICE – IN PLACE OF THE ABOVE:
A BANK LETTER VALIDATING THE BANK ACCOUNT INFORMATION, ON LETTERHEAD, AND SIGNED IS ALSO ACCEPTABLE.
Additional Location Agreement
Effective October 18, 2021
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I represent and warrant that I am authorized to make this request for the above listed business organization. I understand and agree that these SwervePay services are subject to the General Terms of Service for All Services or the SwervePay Offerings Terms and Conditions as agreed upon between the parties. If you have not entered into an agreement with SwervePay previously, please contact Legal@swervepay.com
By: {{{Customer_Signor}}} | |
Title: {{{Customer_Signor_Title}}} | |
Email: {{{Customer_Signor_Email}}} | |
Date of Acceptance: {{{Todays_Date}}} |
Additional Description/Name Reference: | {{{Additional_Description}}} |
New Location Business Name: | {{{New_Business_Name}}} |
Effective October 18, 2021 to October 18, 2021
DownloadTable of Contents
I represent and warrant that I am authorized to make this request for the above listed business organization. I understand and agree that these SwervePay services are subject to the General Terms of Service for All Services or the SwervePay Offerings Terms and Conditions as agreed upon between the parties. If you have not entered into an agreement with SwervePay previously, please contact Legal@swervepay.com
By: {{{Customer_Signor}}} | |
Title: {{{Customer_Signor_Title}}} | |
Email: {{{Customer_Signor_Email}}} | |
Date of Acceptance: {{{Todays_Date}}} |
Effective October 18, 2021 to October 18, 2021
DownloadTable of Contents
I represent and warrant that I am authorized to make this request for the above listed business organization. I understand and agree that these SwervePay services are subject to the General Terms of Service for All Services or the SwervePay Offerings Terms and Conditions as agreed upon between the parties. If you have not entered into an agreement with SwervePay previously, please contact Legal@swervepay.com
By: {{{Customer_Signor}}} | |
Effective October 18, 2021 to October 18, 2021
DownloadTable of Contents
I represent and warrant that I am authorized to make this request for the above listed business organization. I understand and agree that these SwervePay services are subject to the General Terms of Service for All Services or the SwervePay Offerings Terms and Conditions as agreed upon between the parties. If you have not entered into an agreement with SwervePay previously, please contact Legal@swervepay.com
By: | |
It's: | |
Date of Execution: | |
Email: {{{Customer_Signor_Email}}} Email2: {{{Customer_Email}}} |
Effective October 18, 2021 to October 18, 2021
DownloadTable of Contents
I represent and warrant that I am authorized to make this request for the above listed business organization. I understand and agree that these SwervePay services are subject to the General Terms of Service for All Services or the SwervePay Offerings Terms and Conditions as agreed upon between the parties. If you have not entered into an agreement with SwervePay previously, please contact Legal@swervepay.com
By: {{{Customer_Signor}}} | |
It's: {{{Customer_Signor_Title}}} | |
Date of Execution: {{{Todays_Date}}} | |
Email: {{{Customer_Signor_Email}}} |
Effective October 18, 2021 to October 18, 2021
DownloadTable of Contents
I represent and warrant that I am authorized to make this request for the above listed business organization. I understand and agree that these SwervePay services are subject to the General Terms of Service for All Services or the SwervePay Offerings Terms and Conditions as agreed upon between the parties. If you have not entered into an agreement with SwervePay previously, please contact Legal@swervepay.com
By: {{{Signer_Full_Name}}} | |
Email: {{{Signer_Email}}} | |
Title: | |
Date Signed: {{{Todays_Date}}} |
Effective October 18, 2021 to October 18, 2021
DownloadTable of Contents
I represent and warrant that I am authorized to make this request for the above listed business organization. I understand and agree that these SwervePay services are subject to the General Terms of Service for All Services or the SwervePay Offerings Terms and Conditions as agreed upon between the parties. If you have not entered into an agreement with SwervePay previously, please contact Legal@swervepay.com
By: {{{Customer_Signor}}} | |
Email: {{{Customer_Signor_Email}}} | |
Title: {{{Customer_Signor_Title}}} | |
Date Signed: {{{Todays_Date}}} |
Effective October 18, 2021 to October 18, 2021
DownloadTable of Contents
I represent and warrant that I am authorized to make this request for the above listed business organization. I understand and agree that these SwervePay services are subject to the General Terms of Service for All Services or the SwervePay Offerings Terms and Conditions as agreed upon between the parties. If you have not entered into an agreement with SwervePay previously, please contact Legal@swervepay.com
By: {{{Customer_Legal_First_Name}}} {{{Customer_Legal_Last_Name}}} | |
Email: {{{Customer_Signor_Email}}} | |
Date Signed: {{{Todays_Date}}} |
Effective October 18, 2021 to October 18, 2021
DownloadTable of Contents
I represent and warrant that I am authorized to make this request for the above listed business organization. I understand and agree that these SwervePay services are subject to the General Terms of Service for All Services or the SwervePay Offerings Terms and Conditions as agreed upon between the parties. If you have not entered into an agreement with SwervePay previously, please contact Legal@swervepay.com
By: {{{Customer.Legal.Name}}} | |
Email: {{{Customer_Signor_Email}}} |
Date: {{{Todays_Date}}} | |