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* LawPay
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AFFINIPAY TERMS OF SERVICE
Last Updated: March 2024
These AffiniPay Terms of Service (this “Agreement”) is a legal agreement between
you (“Customer,” “you” or “your”) and AffiniPay, LLC (d/b/a LawPay, LawPayPro,
CPACharge, ClientPay, ClientCredit, MyCase, CasePeer, Docketwise and MedPay)
(“AffiniPay,” “we,” “our” or “us”). As used in this Agreement, the “Service” and
the “Services” refers to AffiniPay’s proprietary payment processing services,
the Platform, as well as our website, APIs, any software, programs,
documentation, tools, hardware, internet-based services, components, and any
updates (including software maintenance, service information, help content,
enhancements, updates, upgrades, derivatives, bug fixes or maintenance releases
to our Services) to any of the foregoing provided to you by AffiniPay, directly
or indirectly. To use the Services, you must agree to all the terms of this
Agreement, and by using the Services, you agree to all the terms of this
Agreement. As used in this Agreement, the “Platform” refers everything located
at https://www.mycase.com/, https://www.lawpay.com/, https://www.cpacharge.com/,
https://www.clientpay.com/, https://www.casepeer.com/,
https://www.docketwise.com/, https://www.medpay.com/, and all subdomains
thereof, including without limitation, software, code, algorithms, hosted
services, and web interfaces, and related services, including without
limitation, our proprietary software as a service platform, a suite of online
legal practice management hosted software services, which includes our core
legal practice management software solution, as well as certain value-added
services to which you may subscribe. The term of this Agreement shall begin upon
the earlier date that you register with or first use any Service (including any
Beta Services) and shall terminate on the date that all outstanding accounts you
hold with AffiniPay are closed, unless this Agreement is earlier terminated as
set forth herein.
This Agreement incorporates by reference all policies, notices, and other
content that appear on our website at www.affinipay.com and on the other
websites of our Platform (collectively, the “Website”). You should specifically
review the User Guide posted on our Website (the “User’s Guide”), which is
hereby incorporated by reference and is made a part of this Agreement.
Capitalized terms used but not defined herein have the meanings set forth in
Appendix A.
If you are entering into this Agreement as an agent, employee, or representative
of your employer, the terms “Customer,” “you” and “your” also means your
employer and/or any other party on whose behalf you act, and you represent and
warrant that you have the authority to act on such party’s behalf and bind such
party to the terms of this Agreement.
1. YOUR RELATIONSHIP WITH AFFINIPAY AND WITH OTHERS
The Services allow you to receive payments by card and bank transfer from
persons or entities (“Purchasers”) who wish to pay you for goods, services,
deposits or other transactions authorized by Network Rules. Neither
AffiniPay, nor any Bank, is a party to these transactions.
For payments by card, AffiniPay initiates the payment process by providing
information, directly or indirectly, to the Networks. The Bank is obligated
to pay you under both (a) the provisions of its agreement with AffiniPay,
and (b) Network Rules that make the Bank responsible for settling with you
as a merchant. For payments by bank transfer, AffiniPay initiates the
Automated Clearing House (“ACH”) payment process by providing information
to the Bank through the National Automated Clearing House Association
(“NACHA”).
You acknowledge and agree that, from time to time, another person or entity
may submit or modify transactions on your behalf, including, without
limitation, owners, principals, employees, officers, accountants or other
designated third parties. Such a person or entity is referred to herein as
an “Account Administrator.” You agree that all actions of an Account
Administrator will be deemed to be your actions under this Agreement, and
you accept full responsibility and liability for any and all acts and/or
omissions of an Account Administrator.
2. LIMITATIONS ON AFFINIPAY’S AND OTHERS’ RESPONSIBILITY
Use of our Services in no way represents any endorsement by AffiniPay or
any Network, of any user’s existence, legitimacy, ability, policies,
practices, or beliefs. AffiniPay does not have control of, or liability
for, goods or services that are paid for via the Services. AffiniPay does
not provide legal advice and is not engaged in the practice of law. The
Platform is designed and intended to be used by licensed attorneys and
other professionals in the United States and Canada. Your use of the
Platform for any other purpose or in any other manner is at your own risk.
3. OUR FEES
PAYMENT PROCESSING SERVICES
AffiniPay charges transaction processing fees to you for using the
Services, as well as certain other fees, as set forth in the online sign-up
flow and/or on the Pricing Addendum attached hereto as Appendix B, which is
incorporated into and made a part of this Agreement. These fees (the
“Processing Fees”) are debited from your bank account(s) or netted against
other funds due to you, but you agree to pay the Processing Fees regardless
of whether there are funds due to you or there is sufficient money in your
bank account for us to debit. Subject to the terms of this Agreement,
Network Rules, and Law, we reserve the right to change our Fees at any time
upon notice to you. From time to time, the card brands may change
applicable pass through fees or we may change the allocation of such pass
through fees without prior notice. The current allocation will be updated
accordingly and detailed on Appendix B.
By continuing to use the Services, you consent to the change in Fees. Fees
are non-refundable. To withdraw your consent, you must close your Account.
SUBSCRIPTION-BASED SERVICES
You will pay certain non-refundable fees for software services you
subscribe to from AffiniPay (“Subscription-Based Services”) in the amount
set forth in the online sign-up flow (the “Service Fees”) and according to
the billing frequency stated therein. Service Fees are due and shall be
automatically charged to your payment method on file according to such
billing frequency. Service Fees may be charged on a per authorized user
basis or on a per-entity basis, as further described in your sign-up flow
or as communicated from time to time by AffiniPay. We may increase Service
Fees or change the pricing structure from time to time by providing you
with no less than thirty (30) days advance notice; provided, however, the
Service Fees for any Subscription-Based Service subject to a fixed term,
will only be increased at the time of renewal of your subscription to such
Subscription-Based Service. Service Fees are non-refundable, including if
you terminate your subscription early.
You may incur certain other non-refundable fees or charges for your use of
the Software Services, including certain value-added services, in addition
to the Service Fees (“Additional Fees”, and together with the Processing
Fees and Service Fees, “Fees”). Any Additional Fees will be set forth in
the additional online sign-up flow for such service.
ALL SERVICES
You acknowledge that your failure to pay any Fees when due may result in
suspension or termination of your subscription to the Services. If you fail
to pay any of the fees or charges due hereunder, AffiniPay reserves the
right to, among other things, engage an attorney or a collections agency to
collect the delinquent fees and charges. You agree to pay all fees and
costs incurred by AffiniPay in connection with the collection of such
delinquent amounts, including without limitation, any and all court and
related costs, attorneys’ and/or collections agencies’ fees plus interest
in an amount equal to the lesser of 1.5% per month or the maximum rate
permitted by Law.
You are responsible for all sales tax, use tax, value added taxes,
withholding taxes and any other similar taxes and charges of any kind
imposed by federal, state or local governmental entity on the transactions
contemplated by this Agreement. When we have the legal obligation to pay or
collect taxes for which you are responsible pursuant to this Section 6, the
appropriate amount will be invoiced to and paid by you unless you provide
us with a valid tax exemption certificate authorized by the appropriate
taxing authority.
You acknowledge that AffiniPay or its processors may have tax reporting
responsibilities in connection with the transactions processed using the
Services, such as filing an Internal Revenue Service (“IRS”) report on Form
1099-K, which reports your gross transaction amounts each calendar year,
and other state taxing authority (“State Taxing Authority”) requirements.
You agree that (a) AffiniPay or the processor (as determined between
AffiniPay and the processor in their sole discretion) may report the total
amount of transactions received by you in connection with the Services each
calendar year, as required by the IRS and applicable State Taxing
Authorities; (b) AffiniPay and the processor may use and disclose your
taxpayer information and other personal or transaction data necessary to
fulfil tax reporting responsibilities herein (the “Tax Reporting
Information”); (c) you will cooperate with AffiniPay and the processor in
providing accurate and complete Tax Reporting Information, including any
other information that may be required by the taxing authorities to fulfil
tax reporting described herein; and (d) you represent and warrant that
AffiniPay and the processor may rely on the information submitted by you.
You agree that AffiniPay, its processors, and any related financial
institution or other service provider will not be liable for any penalty or
other damages stemming from any Form 1099-K that is issued incorrectly if
it comports with the information provided by you, nor will they have any
obligation to investigate, validate or verify the Tax Reporting
Information, or any other information submitted by you for reporting
purposes. For clarity, you understand, acknowledge, and agree that
AffiniPay will submit the Tax Reporting Information and other such
information submitted by you exactly as provided by you and received by
AffiniPay. Furthermore, notwithstanding the foregoing, either AffiniPay or
its processors may investigate or validate the Tax Reporting Information
along with other information that may be submitted for tax reporting
purposes.
4. E-SIGN DISCLOSURE AND CONSENT
1. Consent to Electronic Disclosures and Notices. By registering for an
AffiniPay account, you agree and consent to receive electronically all
communications, agreements, documents, notices and disclosures
(collectively, “Communications”) that we provide in connection with your
Account and your use of the Services. You also agree that your
electronic consent will have the same legal effect as a physical
signature.
2. Methods of Delivery. You agree that AffiniPay can provide Communications
regarding the Services to you through our Website, or by sending
Communications to the email or physical addresses identified in your
Account. Communications may include notifications about your Account,
changes to the Services or this Agreement, or other information we are
required to provide to you. You also agree that electronic delivery of a
Communication has the same legal effect as if we provided you with a
physical copy. We will consider a Communication to have been received by
you, and a Communication will be deemed to have been received by you,
within 24 hours of the time a Communication is either posted to our
Website or emailed to you.
3. Requirements for Delivery. You will need a computer or mobile device,
Internet connectivity, and an updated browser to access the Website and
review the Communications provided to you. If you are having problems
viewing or accessing any Communications, please contact us and we can
find another means of delivery.
4. Text Messages. You authorize us to provide Communications to you via
text message to allow us to verify your or your representative’s
authority to use the Services (such as through multi-factor
authentication), and to provide you with other time-sensitive
notifications regarding the Services. Standard text or data charges may
apply to such Communications. Where offered, you may disable text
message notifications by following instructions provided in the message.
However, by disabling text messaging, you may be disabling important
security controls relating to the Services and may increase your risk of
loss.
5. COMPLIANCE WITH LAW; PROHIBITED BUSINESSES AND ACTIVITIES.
You must comply with all Laws and Network Rules in your use of the
Services. You may not use the Services to enable any person (including you)
to operate or otherwise benefit from any activities AffiniPay has
identified as a prohibited business or activity, (collectively, “Prohibited
Businesses”). The list of Prohibited Businesses, which may be amended from
time to time, can be foundhere. Prohibited Businesses include, but are not
limited to, use of the Services for personal, family or household purposes
or in or for the benefit of a country, organization, entity, or person
embargoed or blocked by the United States government, including those on
sanctions lists identified by the United States Office of Foreign Asset
Control (OFAC). Please review the list of Prohibited Businesses thoroughly
before registering for and opening an Account. If you are uncertain whether
a category of business or activity is prohibited or have questions about
how these restrictions apply to you, please contact us. We may add to or
update the Prohibited Business list at any time. In addition, you may not,
and may not allow others to: (a) access or attempt to access non-public
AffiniPay systems or Sensitive Data; (b) copy, reproduce, republish,
upload, post, transmit, resell, or distribute in any way, any Sensitive
Data, content, or any part of the Services or our Website except as
expressly permitted by this Agreement and Law; (c) act as master merchant,
payment facilitator, crowd funding platform, peer-to-peer payments
platform, digital wallet, service bureau or pass-through agent for the
Services on behalf of any other person or entity or otherwise license,
sublicense, sell, rent, assign, distribute, time share transfer, lease,
loan, resell for profit, distribute, or otherwise commercially exploit,
grant rights in or make the Services or any content offered therein
available to any other person or entity; (d) transfer any rights granted to
you under this Agreement; (e) work around or circumvent, or attempt to work
around or circumvent, any of the security or other technical features,
measures, or limitations of the Services or enable functionality that is
disabled or prohibited; (f) disassemble, reverse engineer, decompile or
otherwise attempt to decipher any code in connection with the Services, or
modify, adapt, create derivate works based upon, or translate the Services,
except as expressly permitted by Law; (g) perform or attempt to perform any
actions that would interfere with the normal operation of the Services or
affect the use of the Services by our other users; (h) impose an
unreasonable or disproportionately large load on the Services; (i) use the
Services, directly or indirectly (including through funding such activities
by using the Services), to transmit or store infringing, libelous, obscene,
threatening, or otherwise unlawful, unsafe, malicious, abusive or tortious
material, or to store or transmit material in violation of third-party
privacy rights; or (j) use the Services to store or transmit any viruses,
worms, time bombs, Trojan horses and other harmful or malicious code,
files, scripts, agents or programs or to send spam or otherwise duplicative
or unsolicited messages in violation of Laws.
If you elect to impose a fee on Purchasers with respect to transactions
(including a surcharge for credit card transactions, a discount for
non-card transactions, a convenience fee, service fee or other similar type
of fee) (collectively, “Cost Shift Program”), you must ensure that such
Cost Shift Program is compliant with Laws and the Network Rules. You are
solely responsible for your compliance with all applicable Network Rules
and all present and future federal, state, and local Laws and regulations
relating to any such Cost Shift Program and any required consumer
disclosures related thereto. If we elect, in our sole discretion, to assist
you with disclosures and practices relating to such Cost Shift Programs,
our provision or approval of any materials or practices shall not be deemed
a confirmation that such materials or practices comply with the Network
Rules or Laws and shall not in any way relieve you from your responsibility
to ensure that all program materials and practices comply with the Network
Rules and Laws. You must provide us and Bank with at least at thirty (30)
days prior written notice before implementing (or announcing publicly that
you intend to implement) any Cost Shift Program that would be considered a
surcharge program under the Network Rules.
6. YOUR LICENSE
Subject to your timely payment of all Fees and your compliance with this
Agreement, AffiniPay grants you a limited, non-exclusive, revocable,
non-transferable license, without the right to sublicense, to
electronically access and use the Services and API solely to for the
purposes contemplated by this Agreement.
Any employee, consultant, contractor or agent hired to perform services for
you may operate the Services on your behalf solely under this Agreement,
provided that: (a) you are responsible for ensuring that any such party
agrees in a legally enforceable manner to abide by and fully comply with
this Agreement on the same basis as applicable to you; (b) such use is only
in connection with your internal business purpose; (c) such use does not
represent or constitute an increase in the scope of the licenses provided
hereunder; and (d) you remain fully responsible and liable for any and all
acts or omissions by such third parties related to this Agreement. You will
use commercially reasonable efforts to prevent unauthorized access to or
use of the Services. If the authorized status of a user changes, it is your
responsibility to promptly remove such user’s access to the Services. You
are responsible for your authorized users’ compliance with these Terms of
Service. Third parties that compete directly with us are not permitted to
access or use the Services or any application programming interface we may
make available to you. We reserve the right to disable or delete access to
the Services and any application programming interface for any of your
authorized users that we deem to be direct competitors, as determined in
our sole discretion.
In addition to the restrictions set forth in Section 5, above, you may not,
nor may you permit any third party to, do any of the following: (w) access
or monitor any material or information on any AffiniPay system using any
manual process or robot, spider, scraper, or other automated means; (x)
alter, modify, create derivative works, publicly display, republish,
upload, post, transmit, resell or distribute in any way material or
information from AffiniPay; (y) permit any third party to use and benefit
from the Services via a rental, lease, timesharing, service bureau or other
arrangement; or (z) perform or attempt to perform any actions that would
interfere with the proper working of the Services except as expressly
allowed under this Agreement. In addition to the foregoing, third parties
that compete directly with us are not permitted to access or use the
Services or any API we may make available to you. We reserve the right to
disable or delete access to the Services and any API for any of your
authorized users that we deem to be direct competitors, as determined in
our sole discretion.
7. OUR INTELLECTUAL PROPERTY RIGHTS
The Services are licensed, not sold, and we retain and reserve all rights
not expressly granted to you in this Agreement. The Services are protected
by copyright, trade secret and other intellectual property Laws. AffiniPay
owns the title, copyright and other worldwide intellectual property rights
in the Services and all copies of the Services. This Agreement does not
grant you any rights to AffiniPay’s trademarks or service marks, nor may
you remove, obscure, or alter any of AffiniPay’s trademarks or service
marks included in the Services.
We frequently engage with our customers, and may engage with our customers’
customers or other third parties related to our customers, to understand
how they interact with our Services and how to better develop our Services
to meet their collective and ever-evolving needs. You may choose to, or we
may invite you to, submit comments or ideas about the Services, or Beta
Services, including about how to improve the Services or our products
(“Feedback”). While transparency and candor are key to that process, you
acknowledge and agree that you will not improperly use or disclose to us,
and that the Feedback will not include, any confidential information or
trade secrets of any third parties, and you will not breach any obligation
of confidentiality that you may have to any third party. You further
acknowledge and agree that no jointly owned intellectual property shall be
created as a consequence of our customer or third party engagement process
or practices, or as a result of the Feedback or AffiniPay’s receipt or use
thereof, and that AffiniPay owns all right, title and interest in and to
its intellectual property, including the Plaorms and the Services.
By submitting Feedback, you agree that your disclosure is gratuitous,
unsolicited and without restriction and will not place AffiniPay under any
fiduciary or other obligation, and that we are free to use the Feedback in
any manner without any additional compensation to you, and/or to disclose
the Feedback on a non-confidential basis or otherwise to anyone. Your
disclosure, submission, or offer of any Feedback will constitute an
assignment to AffiniPay of all worldwide rights, titles, and interests in
and to all copyrights and other intellectual property in the Feedback. You
further acknowledge that, by acceptance of your submission, AffiniPay does
not waive any rights to use similar or related ideas previously known to
AffiniPay, or developed by its employees, or obtained from sources other
than you.
8. PRIVACY POLICY
By accepting this Agreement, you acknowledge that you have read, understood
and accepted our Privacy Policy, available at
https://www.affinipay.com/terms/privacy/.
9. INFORMATION SECURITY
1. AffiniPay Security. AffiniPay will comply with the applicable provisions
of the Payment Card Industry Data Security Standard (PCI-DSS) and PCI
SAQ-D. You acknowledge and agree that User Data and Sensitive Data is
transmitted with the understanding that any security measures we provide
may not be appropriate or adequate for your specific business, and you
agree to implement security controls that meet your specific
requirements.
2. Customer Security. You are solely responsible for the security of any
Sensitive Data in your possession, or that you are otherwise authorized
to access or handle. You will comply with applicable Security Standards
when handling or maintaining Sensitive Data, and will provide evidence
of your compliance to us upon our request. If you do not provide
evidence of such compliance to our satisfaction, we may suspend your
Account or terminate this Agreement. You will notify us within 24 hours
if you have any reason to believe that there has been a security breach,
leak, loss, or compromise of Sensitive Data on your systems or the
systems of parties acting as your vendor (a “Data Incident”). In the
event of any Data Incident (whether reported by you or otherwise), (i)
immediately following your knowledge or reasonable suspicion of a Data
Incident, you shall take immediate steps to contain and remedy the Data
Incident and prevent any further Data Incident, including taking any and
all action necessary to comply with Law; (ii) immediately following your
knowledge or reasonable suspicion of a Data Incident, you shall
investigate the Data Incident and provide to us all relevant records,
forensics, and information required to comply with Law or otherwise
requested by us; (iii) provided the same is not contrary to or violative
of Law, you agree that we have the sole right to determine whether
notice of the Data Incident, as it relates to the Sensitive Data of
AffiniPay, is to be provided to any individuals, regulators, law
enforcement agencies, consumer reporting agencies, or other as required
by Law, or otherwise in our discretion, as well as the contents of such
notice, whether any type of remediation may be offered to affected
persons, and the nature and extent of any such remediation; and (iv) we
may require you to permit a third-party auditor approved by us to
conduct a security audit of your systems and facilities, and you must
fully cooperate with any requests for information or assistance that the
auditor makes to you as part of the security audit. The auditor will
issue a report to us, which we may share with Networks and Banks. In our
sole discretion, we may take any action, including suspension of your
Account, to maintain the integrity and security of the Services, or to
prevent harm to you, us, Banks, Networks, Purchasers, or other third
parties. You waive any right to make a claim against us for losses you
incur that may result from such actions we may take to prevent such
harm, and you agree to bear the costs of and reimburse us for the costs
of any of the foregoing and any other efforts we reasonably deem
necessary or reasonable in connection with a Data Incident, except to
the extent such Data Incident arises solely from the acts or omissions
of AffiniPay in violation of Law or this Agreement.
3. Confidentiality. You will protect all Sensitive Data you receive through
the Services, you may not disclose or distribute any such Sensitive
Data, and you will only use such Sensitive Data in conjunction with the
Services and as permitted by this Agreement or by other agreements
between you and us.
4. Data Protection. You will comply with all applicable privacy, data
protection, anti-spam and other Laws relating to protection, collection,
use and distribution of Personal Data (as defined below) of any person.
If required by applicable data protection Law, you will inform third
parties that you are providing their Personal Data to us for processing
and will ensure that any required third parties have given their consent
to such disclosure and processing.
10. REGISTERING FOR USE OF PAYMENT PROCESSING SERVICES
You must register with AffiniPay to use the Services. To register, you will
provide information, including email address and a self-selected password,
in order to create an AffiniPay account (“Account”). You are responsible
for maintaining the secrecy and security of your Account access credentials
and for any use of or action taken under them. We also offer an application
programming interface (the “API”) that allows you to retrieve information
from, or submit requests to, AffiniPay. When you register for an Account,
you may be asked for financial information, or information we use to
identify you, your representatives, principals, officers, directors,
managers, owners, beneficial owners, and other persons or entities
associated with your Account. We may share information about your Account
with Networks, Banks, and other service providers, or use such information
on our own behalf, in order to verify your eligibility to use the Services,
establish any necessary accounts or credit with Networks and Banks, monitor
Charges and other activity, and conduct risk management and compliance
reviews. We will review and may conduct further intermittent reviews of
your Account information to determine that you are eligible to use the
Services. You authorize us and our affiliates to obtain from third parties
any financial and credit information relating to you in connection with our
determination whether to accept this Agreement and our continuing
evaluation of your financial and credit status. You are solely responsible
for determining the appropriate set-up and configuration of the Services.
11. ADDITIONAL TERMS
Your use of the Services may be subject to additional terms that apply
between you and one or more of AffiniPay, an AffiniPay affiliate, and a
Bank (the “Additional Terms”). The current Additional Terms are provided in
Appendix C. By using the Services, you agree to the applicable Additional
Terms, including those that separately bind you with processors, Networks
and/or Banks. Additionally, a Bank or Network may enforce the terms of this
Agreement directly against you. We may add or remove Banks and Networks at
any time. The Additional Terms may also be amended from time to time in
accordance with Section 23 of this Agreement. Your continuing use of the
Services constitutes your consent and agreement to such additions, removals
and amendments, and your use of any new Services constitutes your consent
to any applicable Additional Terms relating to those Services.
12. SECURITY INTEREST
1. Clearing Funds. All funds resulting from Charges are held in pooled
clearing accounts (the “Clearing Accounts”) with our banking partners.
We will settle funds to and from the Clearing Accounts in the manner
described in this Agreement; however, you have no rights to the Clearing
Accounts or to any funds held in the Clearing Accounts, you are not
entitled to draw funds from the Clearing Accounts, and you will not
receive interest from funds maintained in the Clearing Accounts.
2. Reserves. We may withhold funds by temporarily suspending or delaying
payouts to you and/or designate an amount of funds that you must
maintain in bank accounts associated with your Account or in a separate
reserve account with a Bank (a “Reserve”) to secure the performance of
your obligations to us. We may require a Reserve for any reason related
to your use of the Services. The Reserve will be in an amount as
reasonably determined by us to cover potential losses relating to your
Account. We may raise, reduce or remove the Reserve at any time, in our
sole discretion, based on your payment history, a credit review, or
otherwise as we, Banks, or our processing partners may determine or
require. We may fund the Reserve from any funding source associated with
your Account, including any funds due to you, or available in your bank
account.
3. Security Interests. You grant us a lien and security interest in all
Reserves and funds for transactions that we process for you, including
funds that we deposit into your Settlement Accounts, as well as funds
held in any other bank accounts to which such transaction funds are
deposited or transferred. This means that if you have not paid funds
that you owe to us, your Purchasers, or to any of our affiliates, we
have a right superior to the rights of any of your other creditors to
seize or withhold funds owed to you for transactions that we process
through the Services, and to debit or withdraw funds from any bank
account associated with your Account (including your Settlement
Accounts). Upon our request, you will execute and deliver any documents
and pay any associated fees we consider necessary to create, perfect,
and maintain a security interest in such funds (such as the filing of a
form UCC-1). Notwithstanding the foregoing, AffiniPay does not, and will
not, take any lien or security interest in any Trust Accounts in which
you are prohibited by Law or ethical codes of conduct enforced by your
state bar association (if applicable) from granting any security
interest.
4. Collection and Set-Off Rights. You agree to pay all amounts owed to us
on demand. Your failure to pay amounts owed to us under this Agreement
is a breach and you will be liable for any costs we incur during
collection in addition to the amount you owe. Collection costs may
include, attorneys’ fees and expenses, costs of any arbitration or court
proceeding, collection agency fees, any applicable interest, and any
other related costs. Where possible, we will first attempt to collect or
set-off amounts owed to us from balances in your Accounts from your use
of the Services or from funds that we hold in Reserve. However, we may
collect any amounts you owe us under this Agreement by deducting or
setting-off amounts that you owe from the AffiniPay account balance (or
debiting the Settlement Account for such AffiniPay account) for any
AffiniPay account that we determine, acting reasonably, is associated
with your Account. Similarly, we may deduct or set-off amounts from your
Account balance (or debit your Settlement Accounts) in order to collect
amounts owed to us in relation to such associated AffiniPay accounts.
Notwithstanding the foregoing, we will not, in any event, debit a Trust
Account.
5. Guarantees. We may require a personal or other guarantee (a “Guarantee”)
from your principal, owner, or other guarantor, in the form attached
hereto as Appendix D. A Guarantee consists of a legally binding promise
by an individual or an entity to pay any amounts the user owes in the
event that you are unable to pay. Unless we choose, in our sole
discretion, to waive the Guarantee requirement, then you will not be
permitted to use the Services if you are unable to provide a Guarantee.
13. TERMINATION
1. Termination by AffiniPay. We may terminate this Agreement and close your
Account for any reason or no reason at any time upon notice to you. We
may also suspend the Services and instruct the Bank to suspend access to
your Account (including the funds in your Account) if we believe, in our
discretion, that you (i) have violated the terms of the AffiniPay’s
policies, User Guide, the Additional Terms or this Agreement, (ii) pose
an unacceptable credit, fraud, or reputational risk to us, or (iii)
provide any false, incomplete, inaccurate, or misleading information or
otherwise engage in fraudulent or illegal conduct.
2. Termination by Customer. You may terminate this Agreement by closing
your Account at any time upon thirty days’ notice to us. When you close
your Account, any pending transactions will be canceled. Any funds that
the Bank hold in custody for you at the time of closure, less any
applicable Fees, will be paid out to you according to your payout
schedule, assuming all payout-related authentication requirements have
been fulfilled. If an investigation is pending at the time you close
your Account, the Bank may hold your funds as described herein. If you
are later determined to be entitled to some or all of the funds in
dispute, the Bank will release those funds to you.
3. Effect of Termination. If this Agreement is terminated, your Account is
closed, or your trial is expired, you agree: (i) to continue to be bound
by each of your surviving obligations under this Agreement; (ii) to
immediately stop using the Services and to remove all card logos from
your website and wherever else they are displayed; (iii) that the
licenses provided under this Agreement are terminated; (iv) that we
reserve the right (but have no obligation) to delete your Account, all
of your information and Payment Data and any other data in our
possession; and (v) that we will not be liable to you or any third party
for termination of access to the Services, deletion of your information
or Payment Data, or export of your information or Payment Data. We will
not be liable to you for compensation, reimbursement, or damages in
connection with any termination or suspension of the Services. Any
termination of this Agreement does not relieve you of any obligations to
pay any Fees or costs accrued prior to the termination and any other
amounts owed by you to us as provided in this Agreement, and you are not
entitled to a refund of any Fees paid under the Agreement.
14. INDEMNITY
You will indemnify, defend and hold us and our banks, processors and
partners harmless (and our and their respective employees, directors,
agents, affiliates and representatives) from and against any and all
claims, costs, losses, damages, judgments, tax assessments, penalties,
interest, and expenses (including reasonable attorneys’ fees) arising out
of any claim, action, audit, investigation, inquiry, or other proceeding
instituted by a third party person or entity that arises out of or relates
to: (a) any actual or alleged breach of your representations, warranties,
or obligations set forth in this Agreement, including any violation of our
policies, the User Guide, the Additional Terms, or the Network Rules; (b)
your wrongful or improper use of the Services; (c) any Charge submitted by
you through the Services (including the accuracy of any product information
that you provide or any claim or dispute arising out of products or
services offered or sold by you); (d) any Fees, Fines, Disputes, Refunds,
Reversals, or any other liability we incur that results from your use of
the Services; (e) your violation of any third-party right, including any
right of privacy, publicity rights or intellectual property rights; (f)
your violation of any Laws; (g) any other party’s access and/or use of the
Services with your unique username, password or other appropriate security
code, or otherwise on or through your Account, including any unauthorized
transactions; (h) any violation of terms or conditions applicable to
Third-Party Services; (i) all fraudulent transactions related to any Data
Incident and all costs incurred by any indemnified party as a result of
such Data Incident, or (j) your implementation of a Cost Shift Program,
including your acts, omissions, and communications relating to such Cost
Shift Program..
15. REPRESENTATIONS AND WARRANTIES
By accepting the terms of this Agreement, you represent, warrant and agree
that: (a) you are eligible to register and use the Services and have the
authority to execute, and perform the obligations required by, this
Agreement; (b) any information you provide us about your business,
products, or services is accurate and complete; (c) any Charges represent a
transaction for permitted products, services, or donations, and any related
information accurately describes the transaction; (d) you will fulfill all
of your obligations to your Purchasers and will use best efforts to resolve
all Disputes with them; (e) you will comply with all Laws; (f) your
employees, contractors and agents will at all times act consistently with
the terms of this Agreement; (g) you will not use the Services for
personal, family or household purposes, for peer-to-peer money
transmission, or intercompany transactions; (h) you will not use the
Services, directly or indirectly, for any fraudulent or illegal
undertaking, or in any manner that interferes with the normal operation of
the Services; and (i) to the extent you provide any Personal Data to
AffiniPay, you have obtained all authorizations, consents, and permissions,
provided all notices, and otherwise taken all actions required by Law,
necessary for AffiniPay’s receipt and use of such Personal Data.
16. DISCLAIMER OF WARRANTIES BY AFFINIPAY
WE PROVIDE THE SERVICES, BETA SERVICES, AND API “AS IS” AND “AS AVAILABLE”,
WITH ALL FAULTS, AND WITHOUT ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES
OF TITLE, QUIET ENJOYMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NONINFRINGEMENT, WARRANTIES ARISING OUT OF COURSE OF DEALING,
USAGE OR TRADE PRACTICE, OR BY STATUTE OR IN LAW OR ANY OTHER TYPE OF
WARRANTY OR GUARANTEE, AND USE OF SUCH SERVICES, BETA SERVICES, AND API IS
AT CUSTOMER’S SOLE RISK. NO DATA, DOCUMENTATION OR ANY OTHER INFORMATION
PROVIDED BY AFFINIPAY OR OBTAINED BY YOU FROM OR THROUGH THE SERVICES
(WHETHER ORAL OR WRITTEN) CREATES OR IMPLIES ANY WARRANTY FROM AFFINIPAY TO
YOU.
AFFINIPAY DISCLAIMS ANY KNOWLEDGE OF, AND DOES NOT GUARANTEE: (A) THE
ACCURACY, RELIABILITY, OR CORRECTNESS OF ANY DATA PROVIDED THROUGH THE
SERVICES; (B) THAT THE SERVICES WILL MEET YOUR SPECIFIC BUSINESS NEEDS OR
REQUIREMENTS; (C) THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR
TIME OR LOCATION, OR WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE;
(D) THAT AFFINIPAY WILL CORRECT ANY DEFECTS OR ERRORS IN THE SERVICES, API,
DOCUMENTATION, OR DATA; OR (E) THAT THE SERVICES ARE FREE OF VIRUSES OR
OTHER HARMFUL CODE. USE OF DATA YOU ACCESS OR DOWNLOAD THROUGH THE SERVICES
IS DONE AT YOUR OWN RISK – YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO
YOUR PROPERTY, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM SUCH
ACCESS OR DOWNLOAD. YOU UNDERSTAND THAT AFFINIPAY MAKES NO GUARANTEES TO
YOU REGARDING TRANSACTION PROCESSING TIMES OR PAYOUT SCHEDULES.
Additionally, AffiniPay has no obligations in connection with or in the
course of providing the Beta Services, and may cease providing the Beta
Services at any time, with or without notice. Any expectations and
estimates regarding Beta Services are based on factors currently known and
actual events or results could differ materially. AffiniPay does not assume
any obligation to update, patch, upgrade, support, or otherwise maintain or
improve any Beta Services. In addition, any information about AffiniPay’s
roadmap outlines AffiniPay’s general product direction and is subject to
change at any time without notice. It is for informational purposes only
and shall not be incorporated into this Agreement or any contract or other
commitment. AffiniPay undertakes no obligation either to develop the
features or functionality provided in the Beta Services, or to include any
such feature or functionality in a future release of the Services. You
expressly acknowledge that the Beta Services have not been fully tested,
and may contain defects or deficiencies which may not be corrected by
AffiniPay. The Beta Services may undergo significant changes prior to
release of the corresponding generally available final version. AffiniPay
will have no liability for any harm or damage arising out of or in
connection with Beta Services or Customer’s use thereof. Any Feedback you
provide to AffiniPay regarding any Beta Services may be used to help
AffiniPay improve the Beta Services and to market AffiniPay products.
NOTHING IN THIS AGREEMENT OPERATES TO EXCLUDE, RESTRICT OR MODIFY THE
APPLICATION OF ANY IMPLIED CONDITION, WARRANTY OR GUARANTEE, OR THE
EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER
LAW WHERE TO DO SO WOULD CONTRAVENE THAT LAW OR CAUSE ANY TERM OF THIS
AGREEMENT TO BE VOID.
17. LIMITATION OF LIABILITIES AND DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL AFFINIPAY, ITS
PROCESSORS, SUPPLIERS, LICENSORS, NETWORKS, OR ANY BANK (OR THEIR
RESPECTIVE AFFILIATES, AGENTS, OFFICERS, DIRECTORS AND EMPLOYEES) BE LIABLE
FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY
DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR
OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR
UNAVAILABILITY OF, THE SERVICES OR YOUR USE OF OR INABILITY TO USE THIRD
PARTY PRODUCTS. UNDER NO CIRCUMSTANCES WILL AFFINIPAY BE RESPONSIBLE FOR
ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER
UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE
INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AFFINIPAY, ITS PROCESSORS, THE
NETWORKS, AND ANY BANK (AND THEIR RESPECTIVE AFFILIATES, AGENTS, OFFICERS,
DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY:
(A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT POSTED, EMAILED,
TRANSMITTED, STORED OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE SERVICES
(“CONTENT”); (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE
WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (C) ANY
UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL
PERSONAL INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF
ACCESS TO THE SERVICES, OR ANY DELAY IN PERFORMING OUR OBLIGATIONS UNDER
THIS AGREEMENT, REGARDLESS OF WHETHER THE FAILURE OR DELAY IS CAUSED BY AN
EVENT OR CONDITION BEYOND OUR CONTROL; (E) ANY BUGS, VIRUSES, TROJAN
HORSES, MALICIOUS OR DELETERIOUS CODE, OR THE LIKE THAT MAY BE TRANSMITTED
TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (F) ANY ERRORS OR OMISSIONS
IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF
ANY CONTENT; AND/OR (G) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR
ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT WILL AFFINIPAY, ITS
PROCESSORS, AGENTS, SUPPLIERS, LICENSORS, NETWORKS, OR ANY BANK (OR THEIR
RESPECTIVE AFFILIATES, AGENTS, OFFICERS, DIRECTORS, AND EMPLOYEES) BE
LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS,
DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF NET FEES
EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE
(3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM
FOR LIABILITY. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE
ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY,
OR ANY OTHER BASIS, EVEN IF AFFINIPAY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE
FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU AGREE
THAT THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN
IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED
OF ITS ESSENTIAL PURPOSE.
18. DISPUTES; ARBITRATION
If a Dispute of any kind arises, we want to understand and address your
concerns quickly and to your satisfaction. Please contact AffiniPay support
with any Dispute. If we cannot resolve your concerns, we agree to an
informal Dispute resolution process requiring individual arbitration.
You and AffiniPay agree to arbitrate all Disputes. Notwithstanding the
foregoing, (a) AffiniPay may choose to pursue a claim in court, or may
assign your account for collection, and we or a collection agency may
pursue in any court of competent jurisdiction any claim that is strictly
limited to the collection of past due amounts and any interest or cost of
collection permitted by Law or this Agreement, and (b) each party will have
a right to seek injunctive or other equitable relief in a court of law.
ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON AN INDIVIDUAL
BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS,
AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE
WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE
IN A CLASS ACTION AGAINST AFFINIPAY. If any provision of this arbitration
agreement is found unenforceable, the unenforceable provision will be
severed, and the remaining arbitration terms will be enforced (but in no
case will there be a class arbitration). All Disputes will be resolved
finally and exclusively by binding individual arbitration with a single
arbitrator administered by the American Arbitration Association
(www.adr.org) (“AAA”) according to this provision and the applicable
arbitration rules. A form for initiating arbitration proceedings is
available on the AAA’s website at www.adr.org. The Federal Arbitration Act,
9 U.S.C. §§ 1-16, fully applies. Any arbitration hearing relating to this
Agreement will occur in Austin, Texas. You or AffiniPay may elect to have
the arbitration conducted by telephone or based solely on written
submissions, which election will be binding on you and AffiniPay subject to
the arbitrator’s discretion to require an in-person hearing, if the
circumstances warrant. Attendance at an in-person hearing may be made by
telephone by you or by AffiniPay, unless the arbitrator requires otherwise.
The arbitrator’s award will be binding on the parties and may be entered as
a judgment in any court of competent jurisdiction. Payment of all filing,
administration, and arbitrator fees will be governed by the AAA’s rules,
but if you are unable to pay any of them, AffiniPay will pay them for you,
up to an amount not to exceed $75,000. In the event the arbitrator
determines the claims you assert in the arbitration are frivolous, you
agree to reimburse AffiniPay for all fees associated with the arbitration
paid by AffiniPay. For purposes of this arbitration provision, references
to you and AffiniPay also include respective subsidiaries, affiliates,
agents, employees, predecessors, successors and assigns as well as
authorized users of the Services. Subject to, and without waiver of, the
arbitration provisions above, you agree that any judicial proceedings will
be brought in and you hereby consent to the exclusive jurisdiction and
venue in the state courts in Travis County, Texas, or federal court for the
Western District of Texas located in Travis County, Texas.
19. GOVERNING LAW
This Agreement and any Dispute will be governed by Texas law and/or
applicable federal law (including the Federal Arbitration Act) as applied
to agreements entered into and to be performed entirely within Texas,
without regard to its choice of law or conflicts of law principles that
would require application of law of a different jurisdiction.
20. LIMITATION ON TIME TO INITIATE A DISPUTE.
Unless otherwise required by Law, you must commence any action or
proceeding relating to any Dispute within one (1) year after the occurrence
of the event giving rise to such Dispute.
21. ASSIGNMENT
You may not assign this Agreement, any rights or licenses granted in this
Agreement, or operation of your Account to others without our prior written
consent, which may be granted or withheld at our sole discretion. If you
wish to make such an assignment, please contact us. If we consent to the
assignment, the assignee must agree to assume all of your rights and
obligations owed by you related to the assignment, and must agree to comply
with the terms of this Agreement. AffiniPay may assign this Agreement
without your consent or any other restriction. Any assignment or attempted
assignment in contravention of this Section shall be null and void. Subject
to the foregoing, this Agreement shall be binding upon, and inure to the
benefit of, AffiniPay and Customer, and their respective and permitted
successors and assigns.
22. NO AGENCY; THIRD PARTY SERVICES
Except as expressly stated in this Agreement, nothing in this Agreement
serves to establish a partnership, joint venture, or other agency
relationship between you and us, or with any Network. Each party to this
Agreement, and each Network, is an independent contractor. Neither you nor
we have the ability to bind a third party to any contract or obligation,
and neither party will represent that you or we have such an ability.
We may reference, incorporate, utilize, or provide access to third-party
services, products, and promotions that use, integrate, or provide
ancillary services to the Services (“Third-Party Services”). These
Third-Party Services are provided for your convenience only and do not
constitute our approval, endorsement, or recommendation of any such
Third-Party Services for you. You access and use any Third-Party Services
based on your own evaluation and at your own risk. You understand that your
use of any Third-Party Services is not governed by this Agreement. If you
decide to use any Third-Party Services, you will be responsible for
reviewing, understanding, accepting, and complying with the terms and
conditions associated with such use. We expressly disclaim all
responsibility and liability for your use of any Third-Party Services.
Please also remember that when you use a Third-Party Services, our Privacy
Policy is no longer in effect with respect to those Third-Party Services.
Your use of a Third-Party Services, including those that have a link on our
Website, is subject to that Third-Party Service’s own terms of use and
privacy policies.
You may automatically be enrolled in the “AffiniPay Network,” a group of
merchants, billers, banks, insurance companies, accounts payable vendors,
financing providers, and other payors. The AffiniPay Network allows
Purchasers to automate and accelerate payments to you using the Services,
rather than relying on paper checks. In order to allow payments via the
AffiniPay Network, AffiniPay may share your payment address and other
relevant business information with other AffiniPay Network members.
Notwithstanding the foregoing, AffiniPay may prohibit, or otherwise limit,
participation in, the AffiniPay Network for any reason or no reason. If you
wish to opt-out of participation in the AffiniPay Network, please contact
us.
Payments from Purchasers to you through the AffiniPay Network may be made
via virtual card, e-check, or other method, and will be processed using the
Services in accordance with this Agreement. You acknowledge and agree that
payments made through the AffiniPay Network will be subject to the same
Fees (including processing fees and transaction fees) as other payments of
the same type (card or e-check, for example), as set forth in Appendix B,
and you agree to pay such Fees in accordance with Section 3, even if such
payments could have been made via another method (paper check, for
example).
23. AMENDMENT
This Agreement and the Privacy Policy may be amended by AffiniPay uat any
time upon reasonable notice to Customer, including, without limitation,
through any Communication method described herein, which amended Agreement
shall be binding upon Customer. Subject to the foregoing, AffiniPay may
change, delete, discontinue, or impose conditions on use of the Services by
posting such changes on the Website, via mail or email, or through other
means pursuant to which we deliver you Communications. Your use of the
Services or API after we publish any such changes on our Website or
otherwise communicate such changes to you, constitutes your acceptance of
the terms of the modified Agreement. You can access a copy of the current
terms of this Agreement on our Website at any time.
24. OTHER PROVISIONS
24.1 Copyright Policy. AffiniPay respects the intellectual property rights
of others, and asks that everyone utilizing the Services do the same.
Anyone who believes that their work has been reproduced on the Services in
a way that constitutes copyright infringement may notify us in accordance
with Title 17, United States Code, Section 512(c)(2), by providing the
following information:
* Identification of the copyrighted work that you claim has been infringed;
* Identification of the material that you claim is infringing and needs to
be removed from the Services, including a description of where it is
located on the Services so that we can locate it;
* Your address, telephone number and, if available, email address, so that
we may contact you about your complaint;
* A signed statement (a) that the foregoing information is accurate, (b)
that you have a good faith belief that the identified use of the material
is not authorized by the copyright owner, its agent and/or the law, and
(c) under penalty of perjury, that you are the copyright owner or are
authorized to act on the copyright owner’s behalf in this situation.
Notices of copyright infringement and the foregoing information should be
sent to legal@affinipay.com, or, if by mail, to AffiniPay, LLC, 3700 N
Capital of Texas Hwy #300, Austin, TX 78746, Attn: Legal.
This Agreement and all policies and procedures that are incorporated by
reference constitute the entire agreement between you and AffiniPay for
provision and use of the Services. Except where expressly stated otherwise
in a writing executed between you and AffiniPay, this Agreement will
prevail over any conflicting policy or agreement for the provision or use
of the Services. This Agreement sets forth your exclusive remedies with
respect to the Services. If any provision or portion of this Agreement is
held to be invalid or unenforceable under Law, then it will be reformed and
interpreted to accomplish the objectives of such provision to the greatest
extent possible, and all remaining provisions will continue in full force
and effect.
The rights and remedies of the parties under this Agreement are cumulative.
The failure of either party to enforce any provision of this Agreement will
not constitute a waiver of that party’s rights to subsequently enforce the
provision.
The heading titles preceding the text of Sections and Subsections included
in this Agreement are for convenience only and will not be deemed part of
this Agreement. The use of the terms “including” or “include” will in all
cases mean “including, without limitation” or “include, without limitation”
respectively. The word “or” is not exclusive. Reference to any person or
entity includes their successors and assigns to the extent such successions
and assignments are effective in accordance with the terms of this
Agreement. References to a Law means such Law as amended from time to time
and includes any successor Law thereto. Unless the context requires
otherwise, the use of the terms “hereunder,” “hereof,” “hereto” and words
of similar import will refer to this Agreement as a whole and not to any
particular Section, Subsection, paragraph or clause of this Agreement.
25. SURVIVAL
Any provision that is reasonably necessary to accomplish or enforce the
purpose of this Agreement will survive and remain in effect in accordance
with its terms upon the termination of this Agreement.
26. ECHECK TERMS AND CONDITIONS
If you are using our eCheck or other ACH, electronic check or other check
processing Services, you agree to the following additional terms and
conditions:
1. Acknowledgments. In addition to our other rights set forth in this
Agreement, you acknowledge and agree that:
* You will authorize us to initiate any and all debit or credit ACH
entries (“Entries”), and we will not originate any Entries on your
behalf without your authorization;
* You will comply with NACHA Network Rules;
* You will not initiate or request that we initiate any Entries that
that violate Law;
* You have not restricted the types of Entries that we may initiate,
though we may restrict the types, volumes, or amounts of Entries at
our discretion;
* We may terminate this Agreement, or suspend the initiation of Entries
for your violation of (or if we have reason to suspect that you have
violated) NACHA Network Rules; and
* We have the right to audit your compliance with the terms of this
Agreement and NACHA Network Rules.
2. Representations and Warranties Regarding Authorization. You represent
and warrant with respect to all Entries originated by you that (1) each
counterparty whose account is being debited/credited (the “Receiver”)
has authorized the debiting and or crediting of its account, (2) each
Entry is for an amount agreed to by the Receiver, and (3) each Entry is
in all other respects properly authorized.
APPENDIX A
GLOSSARY
“AAA” is defined in Section 18 of this Agreement.
“Account” is defined in Section 10 of this Agreement.
“Account Administrator” is defined in Section 1 of this Agreement.
“ACH” is defined in Section 1 of this Agreement.
“Additional Fees” is defined in Section 3 of this Agreement.
“Additional Terms” is defined in Section 11 of this Agreement.
“AffiniPay” is defined in the first sentence of this Agreement.
“AffiniPay Data” means details of the transactions that are transmitted through
the AffiniPay systems and infrastructure, information used in fraud detection
and analysis, aggregated or anonymized information generated from the Services,
and any other information created by or originating from AffiniPay or the
Services.
“AffiniPay Network” is defined in Section 24 of this Agreement.
“Agreement” is defined in the first sentence of this Agreement.
“API” is defined in Section 10 of this Agreement.
“Bank” means a financial institution that is authorized by a Network to enable
the use of a Payment Method by accepting Charges on behalf of the Networks, and
routing these Charges to the Networks, including any entity acting on behalf of,
or sponsored by, such a financial institution for the purposes of routing such
Charges to the Networks.
“Beta Services” means any products or services labeled or otherwise identified
as Alpha, Beta, Pre-Release, Trial, Pilot, Preview, or similar.
“Charge” means a credit or debit instruction to capture funds from an account
that a Purchaser maintains with a bank or other financial institution.
“Clearing Accounts” is defined Section 12(a) of this Agreement.
“Communications” is defined in Section 4(a) of this Agreement.
“Content” is defined in Section 17 of this Agreement.
“Customer” is defined in the first sentence of this Agreement.
“Data Incident” is defined in Section 9(b) of this Agreement.
“Dispute” means any claim, controversy or dispute (whether involving contract,
tort, equitable, statutory or any other legal theory) between you and AffiniPay,
including, but not limited to, any claims relating in any way to this Agreement
(including its breach, termination and interpretation), any other aspect of our
relationship, AffiniPay advertising, and any use of AffiniPay software or
Services. “Disputes” also include any claims that arose before this Agreement
and that may arise after termination of this Agreement.
“Entries” is defined in Section 26 of this Agreement.
“Feedback” is defined in Section 7 of this Agreement.
“Fees” is defined in Section 3 of this Agreement.
“Fine” means any fines, levies, or other charges imposed by us, a Network or a
Bank, caused by your violation of Network Rules, Law or this Agreement, or as
otherwise imposed pursuant to Network Rules.
“Guarantee” is defined in Section 12(e) of this Agreement.
“Law(s)” means all applicable federal, state or local court orders, laws,
regulations, codes, rules or guidelines imposed by law, any competent government
authority, governing body or regulator in each country and jurisdiction
applicable to either party’s business and your use of the Services and API.
“NACHA” is defined in Section 1 of this Agreement.
“Network” means the provider of a Payment Method, such as Visa Inc. (“Visa”),
MasterCard Inc. (“Mastercard”), American Express Corporation (“American
Express”), Discover Financial Services (“Discover”), NACHA, any affiliate
thereof, or other payment card networks, associations, or companies.
“Network Rules” means the guidelines, bylaws, rules, and regulations imposed by
the Networks that operate Payment Methods supported by AffiniPay (including the
Network Rules for the Visa, Mastercard, Discover and American Express Networks
and NACHA).
“Our” is defined in the first sentence of this Agreement.
“Payment Data” means Payment Method account details for a Purchaser, and
includes, with respect to credit and debit cards, any of the cardholder’s name,
account number, card expiration date, zip code, CAV2, CVC2, CVN2, CVV2, or CID,
information communicated to or by Network or Bank, financial information
specifically regulated by Law and Network Rules, and any other information used
with the Services to complete a Charge or other transaction.
“Payment Method” means a type of payment method that AffiniPay accepts as part
of the Services, such as credit card, debit card, and ACH.
“PCI-DSS” means the Payment Card Industry Data Security Standard and, if
applicable, the Payment Application Data Security Standards (“PA-DSS”)
promulgated by the PCI Security Standards Council.
“Personal Data” means information that identifies or relates to a specific
living person and is collected, transmitted to or accessible through the
Services.
“Platform” is defined in the first paragraph of this Agreement.
“Processing Fees” is defined in Section 3 of this Agreement.
“Prohibited Businesses” is defined in Section 5 of this Agreement.
“Purchasers” is defined in Section 1 of this Agreement.
“Receiver” is defined in Section 26 of this Agreement.
“Refund” means an instruction initiated by you to return funds to a Purchaser
for an existing Charge.
“Requests” is defined in Section 9(d).
“Reserve” is defined in Section 12(b) of this Agreement.
“Reversal” means an instruction initiated by a Network, a Bank or us to return
funds for an existing Charge. Reversals may result from (i) invalidation of a
charge by a Network or a Bank, (ii) funds settled to you in error or without
authorization, or (iii) submission of a Charge in violation of the applicable
Network Rules or this Agreement.
“Security Standards” means, collectively, the PCI-DSS and all rules,
regulations, standards or guidelines adopted or required by the Networks or the
PCI Security Standards Council relating to privacy, data security and the
safeguarding, disclosure and handling of Payment Data, including, but not
limited to, PCI Standards, Visa’s Cardholder Information Security Program
(CISP), MasterCard’s Site Data Protection Program (SDP), American Express’s Data
Security Operating Policy (DSOP), and Discover’s Information Security &
Compliance Program (DISC), in each case as they may be amended from time to
time.
“Service(s)” is defined in the first paragraph of this Agreement.
“Service Fees” is defined in Section 3 of this Agreement.
“Sensitive Data” means, collectively, all Personal Data, Payment Data, and
AffiniPay Data.
“Settlement Account” means, collectively, the bank or other financial
institution accounts that you designate as the accounts into which your
transactions should be settled. In the event that you designate a Trust Account
as a Settlement Account, you must have at least one Settlement Account that is
not designated as a Trust Account.
“Third Party Services” is defined in Section 22 of this Agreement.
“Trust Account” means a Settlement Account that both (i) is held in trust by a
law firm for the benefit of a client, such as an attorney escrow, retainer or
similar account, and (ii) is designated as a “Trust Account” by you in the
manner proscribed by AffiniPay in the User Guide.
“Us” is defined in the first sentence of this Agreement.
“User Data” means information provided by you to us that describes your business
products or services.
“User’s Guide” is defined in the second paragraph of this Agreement.
“We” is defined in the first sentence of this Agreement.
“Website” is defined in the second paragraph of this Agreement.
“You(r)” is defined in the first sentence of this Agreement.
APPENDIX B
PRICING ADDENDUM
Customer pricing, unless otherwise agreed in writing between you and AffiniPay,
is set forth (as applicable) at the following websites, each of which is
incorporated by reference in this Agreement:
https://www.lawpay.com/features/pricing/
https://www.clientpay.com/pricing/
https://www.cpacharge.com/features/pricing/
https://www.mycase.com/pricing/
https://www.woodpeckerweb.com/pricing
https://www.docketwise.com/pricing
https://www.casepeer.com/pricing
APPENDIX C
By agreeing to this Agreement, you are hereby subject to Twilio’s Terms of
Service which can be found here.
Your use of MyCase shall be subject to the MyCase Terms & Conditions.
Your use of Docketwise shall be subject to the Docketwise Terms & Conditions.
The following Financial Service Terms also apply, where applicable: Adyen
Addendum, Synovus Bank/Priority Payments Addendum, and the Agreement for Affirm
Services.
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