MERCHANT SERVICES AGREEMENT
THIS MERCHANT SERVICES AGREEMENT (“Agreement”) is entered into by and between Gorilla Pay, Inc., a Florida Corporation with its principal office located at 495 NE 4th Street Suite 7, Delray Beach, FL 33483 (“gorillaPay.net”, “we,” “us,” and “our”), and you (“Merchant”, “you”, or “your”).
WHEREAS, Merchant and gorillaPay.net have entered into the Agreement which sets forth, among other things, terms and conditions under which gorillaPay.net will provide to Merchant services that facilitate Merchant’s acceptance of credit and debit card payments for goods and services provided to Cardholders;
WHEREAS, gorillaPay.net is party to an agreement with an Acquirer and a Bank under which Acquirer and Bank provide payment processing and Card Organization sponsorship services to gorillaPay.net on behalf of Merchant and other Merchants of gorillaPay.net;
WHEREAS, as a condition of providing services to gorillaPay.net on behalf of Merchant, Acquirer, and Bank require that gorillaPay.net include certain terms and conditions in the Agreement relating to the payment processing services being provided to Merchant;
ACCORDINGLY, BY CLICKING “I AGREE” YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ALL DOCUMENTS, POLICIES, AND PROCEDURES INCORPORATED HEREIN BY REFERENCE.
1. EFFECTIVE DATE AND AMENDMENT.
This Agreement governs your relationship with us and becomes effective when you click “I Agree” (“Effective Date”). You may begin to sell your goods and services (“Products”) after we and our sponsoring bank (“Member” or “Bank”) have approved your account with us (“Account”). The information gathered by gorillaPay.net from you during the online registration process (“Application”), the list of goods and services for which we will not provide services (“Prohibited Products List”), Pricing, and such other documents, policies, and procedures we require you to conform to are all incorporated herein and become a part of this Agreement by reference.
We provide processing services with respect to debit and credit card transactions including all types of VISA and MasterCard cards, and American Express, PayPal, JCB, Discover, Diners Club (the ”Card Organizations”) and PIN Debit card transactions, as well as anti-fraud services and customer service (“Services”).
Visa U.S.A., Inc. (“Visa”) MasterCard Worldwide (“MasterCard”) and DFS Services LLC (“Discover Network”) are examples of payment card networks that electronically exchange Sales Drafts and Chargebacks for Card sales and Credits. After a Card purchase is made at the Merchant’s point of sale (which is facilitated by the Payment Facilitator, in this case gorillaPay.net), Banks or payment acquirers (“Acquirer”) acquire the associated Sales Drafts from Payment Facilitator and then electronically transfer the Sales Drafts through the appropriate Card Organization to the Issuers. These Issuers then bill their Cardholders for the transactions. In order to speed up the payment process, the Issuer transfers the funds back through the Card Organization to the Acquirer at approximately the same time that the Issuer receives the electronic Sales Drafts. Even though the payments under this system are made simultaneously, all payments made through the Card Organizations are conditional and subject to reversals and adjustments. The Acquirer then funds the Payment Facilitator, which in turns funds the Merchant pursuant to the terms set forth in the Agreement.
Each Card Organization has developed Card Organization Rules that govern their acquirers and Issuers and the procedures, responsibilities, and allocation of risk for this process. The Card Organizations have also developed rules governing “Payment Facilitators” (MasterCard) and “Payment Service Providers” (Visa and Discover) and their relationships with Merchants. In addition, Merchant is bound by Card Organization Rules. The Card Organization Rules and Applicable Law give Cardholders and Issuers certain rights to dispute transactions long after payment has been made.
gorillaPay.net does not decide what transactions are charged back and does not control the ultimate resolution of the Chargeback. While gorillaPay.net and the Acquirer can attempt to reverse a Chargeback to the Issuer, they can only do so if the Issuer agrees to accept it or the Card Organization requires the Issuer to do so after a formal appeal process. Sometimes, the Cardholder may be able to successfully charge back a Card transaction even though Merchant has provided its goods or services and is otherwise legally entitled to payment.
You acknowledge that all Services contemplated in this Agreement may not be available to you.
For questions regarding your account, please fill out an online request (“Support Request”) at the following link: http://www.gorillaPay.net/support/.
B. Card Election.
We are intending for you to be able to accept Transactions for all of those credit, debit and charge cards listed above (“Card”) and all the other Services designated in this Agreement or any attachment to this Agreement, unless you notify us that you do not elect to accept all the Card types and Services we offer and name those you do not elect to offer. You may change your election of Card types and Services from time to time upon at least sixty (60) days’ advance notice to us; we will use reasonable efforts to accommodate your requests in less time but we will not be obligated to do so. Upon our approval of a new Card type or Service, the parties will enter into a supplement to this Agreement (“Supplement”), which Supplement will become an attachment to this Agreement. You will not seek authorization for or submit a Transaction of a new Card type until the parties have entered into a Supplement for it. Unless otherwise directed by us, you will not seek authorization for or submit a Card Transaction of a Card type you desire to discontinue accepting later than the effective date of your notice to us. With respect to inadvertent or intentional acceptance of a Transaction other than the type or service anticipated for your account (including, without limitation, a different Card type), you will also be subject to payment to us of our then-current Transaction fee(s) with respect to such Card, Transaction or service and be liable, obligated and responsible under this Agreement for any such Transaction or service to the same extent as you would be if it was of an anticipated Card type or service.
You will honor a Card by accepting it for payment. You will not engage in any acceptance practice or procedure that discriminates against, or discourages the use of, any particular Card type elected by you and approved by us, in favor of any competing Card brand also elected and approved.
For all Cards issued by U.S. Issuers, you will honor all Cards within the Card types elected and approved in accordance with this Agreement. For example, if you elect and are approved to accept Visa credit Cards, you will submit payments from Visa-branded credit Card Cardholders without regard to whether the credit Card is a Visa-branded rewards credit Card or Visa-branded business purpose credit Card.
You will honor all Cards issued by non-U.S. Issuers. For example, even if you elect to limit your acceptance of MasterCard Cards to MasterCard credit Cards, you will accept for processing a MasterCard debit Card issued by a non-U.S. Card issuer.
You acknowledge that no party will acquire any right, title, or interest in or to the Marks of any Card Organizations. You will not assign to any third party any of the rights to use the Marks of any Card Organizations.
C. Application and Underwriting.
You authorize us and Member to obtain credit reports, including, without limitation, consumer reports and background checks from a credit reporting agency or background checking agency (“Credit Reports”), regarding Merchant and the owners of Merchant through any credit reporting agency chosen. Merchant and the owners of Merchant authorize us and Member to obtain and use such Credit Reports from time to time for the purpose of evaluating the creditworthiness of Merchant throughout the term of this Agreement.
You authorize us to validate any payment method you have on file with gorillaPay.net, including the validation of credit cards by charging the card(s) you provide to us with a $1.00 fee that will immediately be voided in order to verify the validity of that credit card.
gorillaPay.net may establish an Account for you upon receipt of your Application and prior to the verification of your identity or determination of your creditworthiness; however, unless and until your identity is verified and creditworthiness determined, and you have been approved by Member, no Card Processing Services will be provided to you. You agree to comply with any and all requests for further information by us. Failure to provide additional information, as requested, or if we determine that insufficient information was provided, may result in our suspending or terminating your account.
If we determine that there is insufficient information to verify your identity or physical address, or we determine that your creditworthiness is unsatisfactory, we may terminate this Agreement without notice. In the alternative, and in our sole discretion, we may request that you provide additional information or fulfill additional requirements to provide security to us and Member, including, without limitation, the execution of a personal guaranty.
D. Our Right to Amend or Modify Agreement.
We may amend or modify this Agreement and any such amendment or modification will be effective when posted to our website and will become binding upon you when posted. Provided, however, that (except in the case of amendments or modifications we or Member or Card Organizations determine must be made effective earlier and without regard to your termination of this Agreement, in order to comply with Applicable Law or Card Organizations Operating Rules, or because of any adverse change in your financial condition) the amendment or modification will not be effective as to you if you terminate this Agreement within thirty (30) days of the posting of an amendment or modification to our website. You accept the responsibility of a continuing review of the content of our website to determine whether any amendments or modifications have occurred.
E. Use of Subcontractors.
In our sole discretion, we may engage third parties to perform part or all of our obligations under this Agreement, at any time without your consent; provided, however, that such action shall not affect our obligations to you hereunder. You agree that we will utilize Member and a processor to provide the Card Processing Services; we may use other third party companies or banks to provide other kinds of processing services for you. You hereby grant Member and any other such entities access to any information about you that is necessary to enable them to perform credit underwriting, authorization of Transactions, and settlement of Transactions.
On and subject to the terms and conditions hereof, we are: (i) acting in the capacity of a Payment Service Provider (under the Visa Rules) and a Payment Facilitator (under the MasterCard Rules) and will provide you card processing services as described herein; and (ii) will provide you with any additional services selected.
G. Defined Terms.
All capitalized terms used in this Agreement shall have the meanings given to them herein or in the Appendix A attached to this Agreement, or the Card Organizations Operating Rules, as applicable.
2. YOUR OBLIGATIONS.
You shall perform those obligations and abide by the restrictions on your activities set forth below:
A. Card Organizations Operating Rules and Compliance.
Merchant acknowledges that Acquirer and Bank must maintain closer controls over high-volume Merchants of Payment Facilitator and, therefore, Merchant must immediately notify Payment Facilitator if it has, or in Merchant’s reasonable opinion will, have greater than $100,000 in annual Card sales volume processed hereunder (based upon the date Merchant’s account is boarded) for any one Card Organization. Further, Merchant must also immediately notify Payment Facilitator if it has, or in Merchant’s reasonable opinion will, have greater than $2,000,000 in annual Card sales volume processed hereunder (“$2M Threshold”). If Merchant reaches or exceeds the $2M Threshold, Merchant acknowledges that Payment Facilitator may terminate this Agreement and Merchant may be required to establish a direct contractual relationship with Acquirer and Bank, provided that Merchant meets Acquirer’s then-current merchant acceptance criteria, in order to continue submitting transactions for processing.
You shall comply with the Card Organizations Operating Rules and Applicable Law, however, with regard to Card Organizations Operating Rules; you need only comply with those applicable to Cards. You will review the Card Organizations Operating Rules and Applicable Law from time to time for changes. Card Organizations Operating Rules are available on websites, such as http://www.usa.visa.com/merchants, and http://www.mastercardmerchant.com, as those links may be changed from time to time.
The Card Organizations have the right to enforce any provisions of the Card Organization Rules and to prohibit Merchant and/or gorillaPay.net from engaging in any conduct such Card Organizations deem could injure or create a risk of injury to the Card Organization, including injury to reputation, or that could adversely affect the integrity of the interchange system and/or the Card Organization’s confidential information. Merchant agrees that it will not take any action that could interfere with or prevent the exercise of this right by the Card Organizations.
In the event of any inconsistency between any provisions hereof and the Card Organizations Operating Rules, the Operating Rules will govern to the fullest extent possible under Applicable Law.
B. Transactions in General, Fraud, and Laundering.
1) You may only sell those Products that have been validly registered with us.
2) You shall not sell any goods that are subject to any lien.
3) You shall not transfer or attempt to transfer your financial liability by asking or requiring a customer to waive his or her dispute rights under the Card Organizations Operating Rules, or to waive any other dispute rights under Applicable Law including, without limitation any right to dispute the Transaction with the Card issuer.
4) The Transactions that you conduct with our payment processing service must be bona fide transactions that directly result from a customer using a credit or debit card of one of the Card Organizations (“Cardholder”) and you. You must not launder or aggregate Transactions.
5) You must not bill or a create an electronic or paper record of the Transaction between the Cardholder and you until you:
a. Complete the Transaction;
b. Ship or provide the goods;
c. Perform the purchased service; or
d. Obtain the Cardholder’s consent for a recurring Transaction.
6) You may immediately bill the Cardholder for prepayment of services and custom-
ordered merchandise manufactured to Cardholder’s specifications.
7) You must not deposit a Transaction that you know, or should have known, to be either fraudulent or not authorized by the Cardholder.
8) You will submit Transactions within the applicable deposit time limits specified in the applicable Card Association Operating Rules.
9) You will submit only Card Transactions for which you have received an Authorization. Obtaining an Authorization will not ensure payment to you for a purchase by a Cardholder. The fact that you obtain an Authorization will not affect our rights thereafter to revoke Authorization of a Card Transaction or to charge back the Transaction to you. In no event will the fact that you obtain an Authorization be deemed to be our representation or warranty, either express or implied, that the particular Card Transaction is in fact a valid, authorized or undisputed Transaction entered into by the Cardholder.
10) The Authorization number we provide shall be noted by you in the appropriate place on the Sales Draft. If Authorization is declined, you shall not complete the Card Transaction.
11) You acknowledge that an Authorization: (i) indicates only the availability of credit at the time of Authorization; (ii) does not warrant that the person presenting the Card is the rightful Cardholder; and (iii) is not an unconditional promise or guarantee by us that any Card Transaction will not be subject to Chargeback.
12) You shall comply with any special authorization procedures contained in the Card Organizations Operating Rules and any other sections of parts of this Agreement.
13) You will not accept or process, any funds representing a Cardholder’s payment to an Issuer.
14) You will not submit or present, any authorization requests for transactions and a paper or electronic document evidencing a transaction (“Sales Draft”) and arising from transactions between: (i) you and Cardholders who are your owners, partners, guarantors, officers, or employees, other than genuine purchases, leases, or rentals of goods or services from you or other payments to you, all in the ordinary course of your business; and (ii) Cardholders and third parties for their goods or services or other payments to them.
15) You may not submit a request for Authorization that has failed a 3-D Secure authentication request.
16) You are responsible for your employees’ actions while in your employ.
17) You are responsible for the quality and accuracy of all data provided to us. We may, at our discretion, require you to correct data you submitted before processing any data you submitted which is incorrect, illegible, or otherwise not in proper form. If you do not provide data in accordance with our specified format and schedule, we will use reasonable efforts to reschedule and process the data as promptly as possible, but related expenses we incur will be charged to you.
18) You will not increase the price of goods or services for a Card Transaction or impose any fee for the service of accepting a Card except as allowed by the Card Organizations Operating Rules and Applicable Law. You may charge a convenience or service fee for a Card Transaction only as permitted by the Card Organizations Operating Rules and Applicable Law. If clearly disclosed to the Cardholder, you may offer a discount from the standard price for payments by cash.
19) You shall comply with any special authorization procedures contained in the Card Organizations Operating Rules and any other sections of parts of this Agreement, including, without limitation, those related to pre-authorized orders which may including recurring payments.
20) You agree (in the case of each of the following, to the extent such agreement is not prohibited by mandatory provisions of Applicable Law) that you shall not:
a. Accept Cardholder payments for previous card charges incurred at the Merchant location;
b. Establish a minimum or maximum Transaction amount as a condition for honoring any Cardholder Transactions unless otherwise required or allowed by the Card Organizations Operating Rules;
c. Add any surcharge or convenience fee to Transactions if the surcharge or convenience fee is prohibited by the Operating Rules;
d. Split a Transaction into amounts smaller than the total and submit it as multiple Transactions;
e. Require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, card expiration date, signature, or any other card account data in plain view when mailed;
f. Require a Cardholder to provide any personal information (such as social security or license number or telephone number) as a condition for honoring a Card, unless required to do so by the Operating Rules or the information (for example, the Cardholder’s address to which goods are shipped) is necessary for Merchant to ship the goods or perform the services which are the subject of the Card Transaction;
g. Add any tax to Transactions, unless Applicable Law expressly requires that you be permitted to impose a tax. Any tax amount, if allowed, must be included in the Transaction amount and not collected separately;
h. Create a Transaction receipt for any Transaction that was previously charged back and subsequently returned to you, irrespective of Cardholder approval;
i. Request or use an account number for any purpose other than as payment for your goods or services;
j. Disburse funds in the form of travelers cheques or other non-cash media;
k. Accept Cards for Transactions that are classified as “Quasi-Cash Transactions”, including, but not limited to, the sale of casino gaming chips, money orders, opening deposits on financial or other accounts, wire transfer money orders, or the issuance of scrip;
l. Disburse funds in the form of cash;
m. Accept a Card to collect or refinance an existing debt that has been deemed uncollectible by Merchant providing the associated goods or services; or
n. Enter a Transaction that represents collection of a dishonored check.
21) You may use a credit voucher and email the voucher to the Cardholder in the event of a return by the Cardholder.
22) You must maintain records of sales for at least two (2) years following the date of the Transaction.
23) If you are undergoing a forensic investigation at the time the Agreement is signed, then you must fully cooperate with the investigation until it is complete.
24) If you receive Cardholder data from us or another party, you shall not use that data in violation of the Card Organizations Operating Rules, or sell the Cardholder data in violation of any laws.
25) You shall use reasonable efforts to resolve disputes with the Cardholder. You shall cooperate with us in resolving such disputes. You shall not recharge the Cardholder after a Chargeback unless authorized.
26) You shall comply with all special procedures and conditions applicable under the Card Organizations Operating Rules with respect to any partial payment, installment payment, delayed delivery or advance deposit situation and any delayed or amended charges for a travel and entertainment Transaction.
C. Electronic Commerce Transactions.
You acknowledge and agree that this section pertains only to Electronic Commerce Transactions (“ECTs”) that arise from Transactions effected in U.S. dollars. All your ECTs must be in U.S. dollars and will be settled in U.S. dollars. Under the Card Organizations Operating Rules, ECTs are considered non face-to-face Card Transactions. In addition, you must properly identify each ECT in the Sales Draft.
You will be responsible for all costs of connectivity and communication between you, the Internet and anyone you use to service your activities. You agree to utilize SSL (Secure Sockets Layer) or other secure compatible encryption method acceptable to us in providing your ECTs to us for authorization, processing and settlement.
You assume all responsibility for identification of the Cardholder and the validity of the Card information for ECTs. You agree that each Authorization request will include a request for address verification and a positive response for it.
You agree to identify separately any high-risk Transactions you submit. The high-risk Transactions include, but are not limited to, any under Merchant Category Code 5967 – Direct Marketing – Inbound Telemarketing Merchants.
D. Merchant Responsibilities for Merchant Providers.
Your use of the services, equipment, software, systems, materials, supplies, or resources of Merchant Providers (“Third Party Service Provider”) regarding your Card Transactions processing, including, without limitation, any third party lessors and licensors, will not affect your obligations under this Agreement to us which will apply to the same extent as if you had not used the Third Parties. We have no liability or responsibility to you or others regarding these third parties, even if we referred them to you. These Third Parties are your agents, and you are solely responsible for: (i) determining whether they can meet your needs and standards; (ii) their actions, inactions and compliance with the terms of this Agreement and Applicable Law; and (iii) any and all fees, costs, expenses, and other obligations owed to them by you or owed by them to us or to the Card Organizations.
Before you engage any Third Party Service Provider, you must provide to us in writing: (a) the Third Party Service Provider’s legal name; (b) contact information; and (c) intended function. You covenant with us that you will not use, allow the use of, or provide to any Third Party Service Provider access to any Cardholder data, or systems, software or services owned or utilized by us or our service provider(s) until you receive our approval and, if required, confirmation of that Third Party Service Provider’s registration with applicable Card Organizations. You must ensure that you and your Third Party Service Providers: (i) comply with the registration process which can involve site inspections, background investigations, provision of financial statements, and any other information required by Card Organizations; (ii) comply with the periodic and other reporting required by Card Organizations; and (iii) comply with this Agreement and Applicable Law, including, without limitation, those provisions requiring security of Cardholder data. You may allow Third Party Service Providers access to Cardholder data only for purposes authorized under and in conformance with the Card Organizations Operating Rules and Applicable Law. You are responsible for all our costs and expenses associated with our review, approval, certification (and recertification as may be required by the Card Organizations Operating Rules) and registration of any Third Party Service Providers.
Upon request and reasonable notice, you will provide and will ensure that your Third Party Service Providers provide to us and our respective representatives prompt access to your and your Third Party Service Provider’s facilities and records for the purposes of performing any inspection and copying books or records pertaining to the Transactions contemplated under this Agreement. You must have written agreements with Third Party Service Providers requiring such access.
E. Contents of and Changes to Webpages.
1) You must prominently and unambiguously inform the Cardholder of your identity at all points of the Transaction.
2) Any website you operate must contain all of the following information:
a. Prominent display of your name;
b. Prominent identification of your name as displayed on your website as both the Merchant and as the name that will appear on the Cardholder statement;
c. Display of your name information as prominently as any other information depicted on your website, other than images of the products or services being offered for sale;
d. Complete description of the goods or services offered;
e. Terms and conditions of the purchase:
i. On the same screen view as the checkout screen used to present the total purchase amount; or
ii. Within the sequence of webpages the Cardholder accesses during the checkout process.
f. Return Policy and Refund Policy:
i. Return Policy and Refund Policy must be clearly displayed on either the checkout screen, or on a separate screen that allows the purchaser to click an acceptance button; and
ii. You must prominently display any special terms such as “NO REFUNDS, EXCHANGE ONLY” if applicable.
g. Customer service contact information, including electronic mail address or telephone number, or both;
h. Transaction currency (e.g., U.S. dollars, Canadian dollars);
i. Any export or legal restrictions on the sale;
j. Delivery or shipping policy;
k. The address of your permanent establishment, including the country:
i. On the same screen view as the checkout screen used to present the total purchase amount; or
ii. Within the sequence of webpages the Cardholder accesses during the checkout process.
m. You must ensure that the Cardholder understands that you are responsible for the Transaction, including delivery of the Products (whether physical or digital) or portions of the services that are the subject of the Transaction, and for customer service and dispute resolution, all in accordance with the terms applicable to the Transaction.
3) You must notify us immediately of any changes you intend to make in any of the following:
a. Products you offer for sale;
b. Services you offer for sale or provide;
c. Your Shipping Policy;
d. Your Return Policy;
e. Primary Contact Information;
f. Ownership/management of your business
g. Website address;
h. URL or Domain Name;
i. Address of each of your offices/locations; or
j. All DBA names you use.
4) Such notice must be provided at least ten (10) days in advance of any change. Should the proposed change result in a breach of the Agreement, we may, at our discretion, suspend activity on your Account until the breach is cured, or terminate the Agreement.
a. You understand and agree that we may require any changes to your website or otherwise as we deem necessary or appropriate to ensure that you remain in compliance with the Operating Rules including, without limitation, those governing the use of the Marks.
F. Display of Marks; Card Acceptance.
1) If you accept credit cards, then you agree (in the case of each of the following, to the extent such agreement is not prohibited by mandatory provisions of Applicable Law) that you must:
a. Display the appropriate credit card logos and marks (collectively, “Marks”), such as Visa, MasterCard, Discover Card, and American Express, with equal size and prominence and not display a preference over another credit card;
b. Display the gorillaPay.net logo provided for your use with equal size and prominence as the credit cards;
c. Not engage in discriminatory practices against the Card Organizations, nor discourage their use;
d. Not refuse to complete an Electronic Commerce Transaction using a MasterCard-branded Card solely because the Cardholder does not have a digital certificate or other secured protocol;
e. Not represent that gorillaPay.net is an equivalent to credit cards, such as Visa, MasterCard, Discover Card, and American Express;
f. Acknowledge and agree that Visa, MasterCard, Discover Card, American Express, and any other Card Organizations, are the sole and exclusive owners of their respective Marks; that you will not contest their ownership of the Marks for any reason; that any use of a Mark by you in acceptance advertising, acceptance decals, or signs, must be in accordance with the Operating Rules, including the Card Organizations’ reproduction, usage, and artwork Operating Rules; that the Card Organizations may at any time, immediately and without advance notice, prohibit you from using any of the Marks for any reason; that your use or display of any Mark if not terminated earlier will terminate effective with the termination of this Agreement or notification by the applicable Card Organizations to discontinue such use; that the Card Organizations have the right to enforce any provision of the Operating Rules and to prohibit you or gorillaPay.net from engaging in any conduct the Card Organizations deem could injure or could create a risk of injury to the Card Organizations, including injury to reputation, or that could adversely affect the integrity of the Interchange System, the Card Organizations’ confidential information as defined in the Operating Rules, or both; and that you will not take any action that could interfere with or prevent the exercise of these rights by the Card Organizations; and
g. With regard to Visa and MasterCard acceptance, you may choose to accept: (i) Debit Cards only; (ii) Credit and Business Cards only; or (iii) both Debit Cards and Credit and Business Cards, of Visa or MasterCard as you may select in your Application and you agree to honor all valid Cards of the Card type(s) you so select; however, if you elect to accept any type Visa Cards or any type MasterCard Cards, then you agree to accept all valid Visa Cards or MasterCard Cards, as applicable, regardless of type(s), if the Card is issued by a non U.S. Card Issuer.
G. Customer Assistance.
1) You shall, at all times, respond promptly to inquiries from us on behalf of Customers or from Customers directly and shall endeavor to resolve any disputes with Customers.
2) In the event we participate in an attempt to resolve an issue with a Customer, we will notify you of the details and nature of the issue and use commercially reasonable efforts in an attempt to find a solution that is acceptable to all parties to a Transaction.
3) In any direct contact with Customers, you shall, at all times, act in a professional and courteous manner. At no time will you conduct an inappropriate communication with the Customer. Inappropriate communications include, without limitation, threats of any nature, harassment, or attempts at extortion. Any such inappropriate communication shall be deemed to be a material breach of the Agreement.
4) You shall indemnify and hold us, Member and Processor harmless from any, costs expenses, or damages claimed by a Customer as a result of your inappropriate communications.
5) We may charge you reasonable fees and recover our expenses related to Customer inquiries, Returns, or Refunds.
H. Reversal of Customer Transactions.
a. A return occurs when a Customer returns Products previously purchased from you (“Return”). You shall accept Returns in accordance with your published Return Policy and agree to provide Refunds, in accordance with your Refund Policy, through gorillaPay.net, and not the Acquirer, for Customers who initiate a Return. You shall also accept a Chargeback that we have approved that was initiated by the entity whose brand appears on the Card (“Card Organization”), the Card issuing bank, or the depository bank (in the case of electronic check payment).
b. You shall have a policy with regard to the return or cancellation of Products (“Return Policy”). Your Return Policy shall be clear, complete, accurate, prominently posted on your billing screen, and available for review by a Customer prior to the Customer being obligated for a purchase of your Products.
c. Unless otherwise agreed upon with us in advance, your Return Policy shall, at a minimum, indicate that you will not reduce the amount of a Refund by the assessment of a “restocking fee” or any other charge (including shipping charges) for any Return that occurs in accordance with your Return Policy, or for any Refund that we initiate.
d. Generally, gorillaPay.net expects Customers to return goods purchased from Merchants directly to Merchants. In the event that gorillaPay.net does receive returned goods, we will notify you via email, using the most up to date email address listed on the Account.
e. Any fees gorillaPay.net may pay on your behalf in order to ship to you returned goods sent by the Customer to gorillaPay.net are your responsibility. You grant us the right to deduct these fees from the purchase price of Products sold to Customers prior to making any payment to you, to withdraw the funds from your Settlement Account, or to charge the Card you have on file with gorillaPay.net if applicable.
f. If gorillaPay.net does not receive a response after sending you notification of our receipt of your good(s), or if you choose not to have the good(s) shipped back to you at your expense, then gorillaPay.net will become the rightful owner of such good(s) ninety (90) days after the date gorillaPay.net received such good(s). And will have all ownership rights associated therewith.
a. A refund is the actual reimbursement of the cost of Products to a Customer regardless of the basis for the reimbursement (“Refund”). We accomplish the Refund by reversing the amount previously charged to the Customer’s Card or account at the Card issuing bank and the appropriate amount is credited to the appropriate Card or account at the Card issuing bank of Customer.
b. You may only handle refunds and adjustments initiated on the same day as the initial Card Transaction if completed prior to end-of-day batching. In such event, if a Cardholder returns goods or cancels services purchased from you with a Card, or you allow any other price adjustment after a sale has been completed and a refund or adjustment is due to the Cardholder (other than any involuntary refund required by applicable airline or other tariff or by Applicable Law), you will not return cash to the Cardholder but will instead: (i) prepare a Credit Draft; (ii) process each such refund or adjustment as specified in the Card Organizations Operating Rules; and (iii) give the Cardholder a copy of the completed Credit Draft.
c. If you establish a policy limiting refunds or acceptance of returned merchandise (e.g., no refund, exchange only, in-store credit only, or special conditions), you must follow the procedures set forth in the Card Organizations Operating Rules regarding refunds and returned merchandise.
d. No refunds, credits, or adjustments relating to a Card Transaction shall be accepted or processed by you after the day following the day on which such Card Transaction was submitted to us for processing. Any such refund, credit, or adjustment requests shall be referred to us for handling directly with the Cardholder.
e. We may issue a Refund without your prior knowledge or consent in any case we deem appropriate. We will notify you of any Refund and provide you with information regarding the basis for our determination to issue the Refund.
f. We will debit your Settlement Account in an appropriate amount for all Refunds, regardless of the basis for the Refund.
g. In the event of a Return or Refund, you agree to indemnify and hold us harmless from liability and further agree to immediately pay us an amount equal to all funds we have paid to Customer on your behalf.
a. We are subject to obligations to various Card Organizations which entitle the Card issuing bank to assess a charge or fee for handling bank assisted disputes.
b. A bank assisted dispute occurs when the Customer or the Card issuing bank disputes the validity of a purchase of Products from you, and the Card issuing bank initiates a reversal of the purchase, providing the Customer with a credit for the full amount of the Products purchased from you (“Chargeback”).
c. In the event multiple Products are purchased as part of a single Transaction, the Customer or the Card issuing bank may initiate a Chargeback for less than all of the Products purchased and the credit granted to the Customer will only be in the amount of the Products for which the Chargeback was initiated.
d. We may incur charges from our Merchant Service Provider (“MSP” and also known as a “Merchant Account Processor”) or the entity that acquires the Transaction for payment (“Acquirer”) as a result of a Chargeback. The charges are commonly called Chargeback Fees and are purported to reflect the additional expenses incurred by the MSP or Acquirer as a result of refunding money to the Customer. We may, in turn, assess a fee to you to cover such additional expense. (See Section 4E, entitled “Dispute Charges” and the Merchant Fee Schedule.)
I. Compliance with Laws and Regulations.
1) You may not use the Service to process Transactions that are in and of themselves illegal or which involve illegal or prohibited products, including but not limited to, those products contained in the Prohibited Products List.
2) You shall use the Service to process Transactions in a manner approved by us for products or services listed in the Restricted Products List section of the Prohibited Products List (“Restricted Products List”).
3) We may change the Prohibited Products List from time to time, in our discretion, without notice to you or without your consent. We shall have no liability or obligation to you for a change in the Prohibited Products List, even if the addition of a product or service to the Prohibited Products List eliminates all Products that you offer for sale.
4) You shall not offer for sale products or services in the Prohibited Products List. If you are offering Products for sale that become included in the Prohibited Products List, you agree to cease offering such Products for sale within two (2) calendar days after the Product is added to the Prohibited Products List and the revised Prohibited Products List is posted on our website. Failure to comply within two (2) calendar days from such warning may result in suspension of activity on the Account, the Account being closed, and the potential forfeiture of payment on the offending Transaction(s), in our sole discretion. Provided, however, if in our sole discretion, the Products being offered are such that they should be immediately withdrawn from sale by you, we may immediately suspend activity on your Account, without notice and opportunity to cure. At our discretion, such suspension may continue indefinitely, or result in your permanent suspension, the termination of the Agreement, and the forfeiture of the right to a disbursement of funds for completed sales of Prohibited Products.
5) You shall comply with all applicable Card Organizations rules, regulations, or guidelines (“Operating Rules”).
6) You shall comply with all applicable national, federal, state, and local laws, rules, regulations, requirements or other standards established by any governmental authority having jurisdiction to control such activities (“Applicable Law”), including, without limitation, those relating to anti-money laundering compliance, Office of Foreign Asset Control compliance, the Federal Trade Commission, bank regulatory authorities, and State and local consumer protection agencies.
J. Prohibited Activities.
In addition to prohibitions which may be found elsewhere in the Agreement, you shall not allow or conduct any of the following listed activities. If we ascertain that you are allowing or conducting any of the following listed activities, the Account will be immediately suspended and funds for completed sales of products or services to us will be withheld from you pursuant to Section 2G:
1) Virtual Terminal Activity (i.e. Self-Keying).
a. Allowing a third party to directly key in Card or bank account information related to a Transaction involving us via the Internet.
2) Unsolicited Electronic Messaging.
a. Generating unsolicited electronic messages to Customers which constitutes SPAM. For purposes of the Agreement, the term “SPAM” means an unsolicited commercial electronic communication to a Customer, or commercial electronic communications sent to a Customer after the Customer has revoked authorization for the sender. SPAM includes, without limitation:
i. Instant Messaging;
ii. Unwelcome email;
iii. Newsgroup cross-postings;
iv. Text Message or Short Message Service;
v. Windows that spawn new windows; and
vi. Windows which resist closure.
3) Sale of Products in the Prohibited Products List.
a. The sale or advertisement of Products that are in the Prohibited Products List.
b. The sale or advertisement of Products in a manner different than approved by us in the Restricted Products List.
4) Use of Personal Information Regarding a Customer.
a. The use of personal information regarding a Customer for anything other than as necessary to complete the sale of a Product by us to a Customer or to conduct customer assistance requested by the Customer.
5) Presenting Sales Information Prior to Shipment.
a. Presenting any sales information to us for processing which relates to the sale of Products for future delivery.
b. Relying on any proceeds or credit resulting from a Transaction to purchase or furnish Products.
c. You are expected to maintain a ready inventory of the Products you offer for sale or promptly notify us that an order will not be fulfilled in a timely manner.
6) Prematurely Marking Products as Shipped to Customer.
a. Notifying us that a Product has been shipped to a Customer prior to shipment having occurred.
7) Other Electronic Activities.
a. Using the Services for any purpose other than that for which it is allowed under the Agreement, including, without limitation, phishing, pharming, hacking, tampering, modifying, or otherwise corrupting the security or functionality of the Services.
8) Illegal Activities.
a. The sale, lease, other transfer, or possession of Products to a Customer when such sale, lease, other transfer, or possession violates the law.
K. Compliance with Card Organizations Operating Rules.
1) You agree to comply with all applicable Card Organizations Operating Rules, as may be amended from time to time, including but not limited to those that apply to the sale of Products over the Internet, where the credit or debit card used for the purchase is not present, and the data security and data retention/non-retention requirements. Your website may display Card Organizations related materials such as trademarks, service marks, logos, and other protected items belonging to the Card Organizations, only as approved by us.
2) You agree that you will not contact any Cardholder with respect to any matter arising under the Card Organizations Operating Rules, except as required or permitted under the Card organizations Operating Rules.
L. Information Security.
If you receive Cardholder data, you must ensure that you and your Third Party Service Providers have proper security measures in place for the protection of Cardholder data, and comply with the Data Security Standards adopted by the PCI Security Standards Council, LLC.(as amended, the “PCI DSS”), which may be reflected in the Visa Cardholder Information Security Program (“CISP”), the MasterCard Site Data Protection Program (“SDP”) and Discover Network’s Information and Security Compliance (“DISC”), in addition to all other Card Organizations Operating Rules, now or in the future. Additional information regarding the CISP, SDP programs and DISC is available at the Visa website, www.visa.com/cisp, the MasterCard website, www.mastercard.com/banksdp/, Discover Network’s website, www.DiscoverNetwork.com/fraudsecurity/disc.html, and at the PCI DSS website: http://www.PCISecurityStandards.Org, as those links may be updated by such parties, respectively, from time to time. In addition, when available, you must use only services and merchant equipment that have been certified as PCI DSS compliant by the Card Organizations. You must have written agreements with your Third Party Service Providers requiring such compliance. You are responsible for demonstrating you and your Third Party Service Providers’ compliance with the CISP, SDP, DISC, and PCI DSS programs and providing us, or our designees with reasonable access to your locations and facilities, and ensuring that your Merchant Providers provide reasonable access to their facilities, to verify you and your Third Party Service Providers’ ability to prevent security violations.
You must ensure that you and your Merchant Providers have, maintain, and use at all times proper controls as specified in the Card Organizations Operating Rules and Applicable Law for secure storage of, limited access to, and rendering unreadable prior to discarding, all records containing Cardholder data, Card imprints and Cardholder signatures. You must not retain or store magnetic stripe or PIN data after a Transaction has been authorized. If you store any electronically captured Cardholder signature, you may reproduce such signature only upon our request.
In addition to your obligations as set forth elsewhere in this Agreement, if you or one of your Third Party Service Providers is determined by any Card Organization, regardless of any forensic analysis or report, to be the likely source of any loss, disclosure, theft, or compromise of Cardholder data or Card Transaction information (together, “Compromised Data Event”) and regardless of your belief that you have complied with the Card Organizations Operating Rules and Applicable Law or any other security precautions and is not responsible for the Compromised Data Event, you must promptly pay us for all related expenses, claims, assessments, fines, losses, costs and penalties, and Issuer reimbursements imposed by the Card Organizations and are passed through to us by servicers (together, “Data Compromise Losses”).
In addition to your obligations in this Agreement, you must pay us promptly for all expenses and claims made by Issuers against servicer(s) and passed through to us alleging your responsibility for the loss, disclosure, theft or compromise of Cardholder data or Transaction data, apart from any claim procedures administered by the Card Organizations.
You will immediately notify us of any suspected, alleged, or confirmed Compromised Data Event, regardless of the source, including any from any of your Third Party Service Provider. We or servicers may engage a forensic vendor approved by a Card Organization. You must cooperate with the forensic vendor so that it may immediately conduct an examination of your equipment, systems, and your and your Third Party Service Providers’ procedures and records and issue a written report of its findings. You agree that upon your suspected or actual discovery of a Compromised Data Event, you will not alter or destroy any related records. You agree to maintain complete and accurate documentation regarding any modifications made to the records. You will share with us and our servicers information related to your or any Card Organizations’ investigation related to any actual or suspected Compromised Data Event (including, but not limited to, forensic reports and systems audits), and we and our servicers may share that information with Card Organizations.
Upon notice to you, we or our servicers, or the respective representatives of each may conduct remote electronic scans of your systems, similar to those conducted under the PCI DSS, to confirm compliance with the requirements of the PCI DSS and similar requirements of the Card Organizations. You must promptly cooperate with any such parties to facilitate the scans.
M. No Use of Information.
You shall not, without the Cardholder’s written consent, sell, purchase, exchange, or disclose a Cardholder’s account number or other information to any third party for any reason other than to your agents for the purpose of assisting you in the delivery of merchandise or services as part of the transaction, or to us, the Card Associations or networks, or pursuant to a government request or subpoena.
N. Provider Services.
During the term of this Agreement, Merchant shall use gorillaPay.net as its exclusive provider of all payment-related services, which gorillaPay.net can support.
3. YOUR WARRANTIES AND REPRESENTATIONS.
You make the following representations and warrant that at all times during the term of this Agreement such representations shall be true and accurate:
A. Contractual Capacity.
You are authorized to carry on your own business as it is conducted and to enter into this Agreement. You further represent that no other authorizations, consents, or approvals are required in connection with the validity and enforceability of this Agreement or your execution, delivery, and performance of this Agreement. You have not changed the nature of your business, Card acceptance practices, delivery methods, return policies, or types of products or services sold requiring a different merchant category code under Card Organizations Operating Rules, in a way not previously disclosed to us. You will use the Services only for your own proper business purposes and will not resell, directly or indirectly, any part of the Services to any Person. You have not filed a bankruptcy petition not previously disclosed to us.
B. Truthful Information.
All information and data you provide to us, or for which you engage a third party to provide to us, is complete, truthful, accurate, valid, your lawful property, and you have the right to communicate such information.
C. Contact Information.
All email address, domain, URL, physical address, and telephone information you provide is complete, current, and correct. You agree to promptly inform us of any change in any of them. You are not doing business under a name or style not previously disclosed to us.
D. Intellectual Property Ownership.
You own or otherwise have the full right and authority to use and disseminate: (i) all information, data, graphics, text, video, music, or other intellectual property which forms a part of your website, or which you use in your advertising and promotional efforts; and (ii) the Products.
E. Authority to Conduct Business.
You are legally authorized to sell any Product you offer and you have obtained all necessary regulatory approvals and certificates (hereafter, “Certificates”). You will provide us any copies of Certificates immediately upon receipt of our request.
F. Settlement Account.
Merchant owns and controls the Settlement Account, and no third party security interest or lien of any type exists regarding the Settlement Account or any Card transaction.
G. Security Interest.
Merchant will not at any time during the term of this Agreement or until all amounts due under this Agreement have been paid in full, grant or pledge any security interest, or lien in the Reserve Account, Settlement Account, or transaction proceeds to any Person without consent of gorillaPay.net.
H. Financial Liability.
Merchant will not attempt to transfer its financial liability for each Card transaction by requiring or incenting any Cardholder to waive his or her dispute rights.
I. Cardholder Informed.
To the extent Merchant interacts with the Cardholder, Merchant will prominently and unequivocally inform the Cardholder of the identity of the Merchant at all points of interaction so that the Cardholder readily can distinguish the Merchant from any other party, such as a supplier of products or services to Merchant, including gorillaPay.net.
Merchant must ensure that the Cardholder understands who is responsible for the Card transaction, including delivery of the products (whether physical or digital) or provision of the services that are the subject of the Card transaction, and for customer service and dispute resolution, all in accordance with the terms applicable to the Card transaction.
J. Card Transactions.
1) Without limiting any other warranties hereunder, you represent, warrant and covenant with us and with the submission of each Card Transaction reaffirm, the following representations, warranties and/covenants:
a. Each Card Transaction is genuine and arises from a bona fide Transaction, permissible under the Card Organizations Operating Rules and Applicable Law, by the Cardholder directly with you;
b. Each Card Transaction represents a valid obligation for the amount shown on the Sales Draft, Preauthorized Order, or Credit Draft, and does not involve the use of a Card for any other purpose;
c. Each Card Transaction represents an obligation of the related Cardholder for the amount of the Card Transaction;
d. The amount charged for each Card Transaction is not subject to any dispute, set off or counterclaim;
e. Each Card Transaction amount is only for respective merchandise or services (including taxes, but without any surcharge) sold, leased, or rented to a Cardholder by you and, except for any delayed delivery or advance deposit Card Transactions expressly authorized by this Agreement, that merchandise or service was actually delivered to or performed for the Cardholder entering into that Card Transaction simultaneously upon your accepting and submitting that Card Transaction for processing;
f. With respect to each Card Transaction, you have no knowledge or notice of any fact, circumstance, or defense which would indicate that such Card Transaction is fraudulent or not authorized by the related Cardholder or which would otherwise impair the validity or collectability of that Cardholder’s obligation arising from that Card Transaction or relieve that Cardholder from liability with respect thereto;
g. Each Card Transaction is made in accordance with this Agreement and Applicable Law;
h. Each Sales Draft is free of any alternation not authorized by the related Cardholder; and
i. You have completed one Card Transaction per sale; or one Card Transaction per shipment of goods for which the Cardholder has agreed to partial shipments.
A. Payment of Fees, Charges, and Expenses.
In consideration of the Services provided to you hereunder, you shall pay us, the fees, charges, and expenses for each of the Services, as listed on the Merchant Fee Schedule. You authorize us to deduct all fees, charges, fines, penalties, wire transfer charges, and other expenses that you are responsible for from the purchase price of Products sold to Customers prior to making any payment to you, to withdraw the money from your Settlement Account, and/or to charge any Card you have on file with gorillaPay.net. Your authorizations will remain in full force and effect while you have an open 2Checkout Account and for any Bank Account listed.
You authorize us to validate any payment method you have on file with gorillaPay.net, including the validation of credit cards by charging the card(s) you provide to us with a $1.00 fee that will immediately be voided in order to verify the validity of that credit card.
B. Account Establishment.
The Fees to open an account are set forth on the Merchant Fee Schedule. Once sales occur on an account, the URL is locked to that account. If you wish to change the URL for your account, a fee will be charged in accordance with the Changes category on the Merchant Fee Schedule.
All of the fees described above and throughout this Agreement are immediately due and payable upon demand by gorillaPay.net.
C. Transaction Fees.
All Transactions are processed using our SSL encryption network and any other processes made available through our MSP. Payment will be initiated via the secure payment processes.
A “Transaction” occurs when a Customer purchases a Product of yours which has been authorized for sale; a Customer obtains a Refund of the purchase price for a Product previously purchased as a result of a Return or a Dispute; or a Customer exchanges a Product previously purchased.
The Transaction Fees are as described under the Transaction Fees category on the Merchant Fee Schedule.
We may, in our sole discretion, assess a higher Transaction Fee for certain Products you offer to Customers if we determine that the sale of Products create a potential or actual financial or reputational risk to us, such as those in the Restricted Products List.
The Transaction Fees shall be deducted from the proceeds we receive for the sale of the Product prior to payment of any funds to you.
D. Cancellation Fees.
A “Cancellation” occurs when Customer, you, or gorillaPay.net voids an order for a withdrawal of funds from a Customer’s Card account or bank account.
For any Cancellation which is initiated within forty-eight (48) hours of the time a sale is completed, a full refund will be given to Customer, and we will not assess or collect any Transaction Fee from you.
For any Cancellation request which is initiated more than forty-eight (48) hours after the time a sale is completed, a full refund will be given to the Customer, but we will assess and collect a Transaction Fee from you based upon the price of the original purchase and, if applicable, a Wire Transfer Fee.
E. Dispute Charges.
A “Dispute” occurs when a Cardholder or the Card issuing bank disputes the validity of a purchase of a Product and initiates a Chargeback.
In the event a Refund is paid to a Cardholder by us for a purchase that is the subject of a Dispute, you will be obligated to reimburse us for the amount of the Refund immediately. In the event the funds for the purchase that is the subject of the Refund have not been paid to you, we may deduct the amount of the Refund from funds due to you or we may debit the Settlement Account by the amount necessary.
You may dispute a Chargeback as provided in the Card Organizations Operating Rules, and must submit any dispute in time so that we may in turn submit such dispute in compliance with any requirements for timely submission. Our obligation to you respecting Chargeback disputes is limited to permissible presentment of your dispute to the appropriate Card Organizations or to Member for handling. We will not engage in direct collection efforts against Cardholders on your behalf. Under no circumstance shall you transfer or attempt to transfer your financial liability hereunder by asking or requiring a Cardholder to waive their dispute rights.
In the event we, in our sole discretion, have any reasonable doubt as to whether you delivered the Product to the Customer, or any reasonable doubt that the Product delivered to the Customer was as you advertised, we may withhold the applicable Purchase Payment until we are satisfied that you have performed your obligations to the Customer.
In addition to the obligation to fully refund the purchase price paid by gorillaPay.net if the dispute results in a Refund, you may be assessed a Dispute Charge in accordance with the Chargeback Fees category on the Merchant Fee Schedule.
You shall pay all Dispute Charges upon demand by gorillaPay.net via a debit to your Settlement Account.
Our determination as to whether or not Chargeback Fees are to be assessed to you will be based, in part, upon the “reason codes” selected by the Card issuing bank. The “reason codes” have been established by Card Organizations as the basis for a Customer to dispute the validity of a Transaction when a credit or debit card is used to purchase goods or services.
Fraud prevention is an important service we provide to our Merchants. Fees or charges to us related to a Transaction will not be passed through to you if such charges result from fraudulent activity you did not participate in. In addition to active participation in fraudulent activity, you will be deemed to have participated in fraudulent activity if we classify a Transaction as fraudulent, or the Transaction is reinstated at your request and the Transaction subsequently becomes the subject of a Dispute by the Card issuing bank.
Fees or charges to us related to a Transaction which result from service related issues (e.g., failure to accurately advertise the Products) may result in charges to you, as described in the Chargeback Fees category of the Merchant Fee Schedule.
F. Change in Fees.
We may change any or all of the fees and charges, or add new fees and charges, with reasonable advance notice of such changes to you via posting the changes on our website. If third party charges are included in, or the basis for, a charge to you and the third party changes those charges, we will provide notice to you if we receive notice from the third party in advance of the effective date of such third party increases. We may charge such increases to you upon the effective date of the third party increase, regardless of whether or not we provide notice to you.
G. Interchange and Assessments.
You are responsible for the payment of interchange on all of your Transactions and any assessments, fees or other charges related thereto which are levied by the applicable Card Organizations or acquiring financial institution, including any increases of such assessments, fees, and charges by the Card Organizations or acquiring financial institution. The interchange due the applicable Card Organization is included in the fees you are to pay to us. You may be billed separately for any other assessments, fees and charges, or any increase in any of them.
You agree to pay for Transactions successfully challenged by cardholders or card issuers in accordance with applicable Card Organizations Operating Rules relating to Chargebacks and to permit your Settlement Account to be debited for the amount of any Chargebacks.
I. Settlement Account.
You shall at all times maintain a depository account at a financial institution acceptable to us for the purposes of settling daily and monthly activity pursuant to this Agreement, for billing and payment of fees, charges, and expenses due hereunder, and for all other purposes described hereunder or determined to be appropriate by us, the merchant processor, or the acquiring bank (the “Settlement Account”). The name and entity type on the Settlement Account must match the name and entity type of the Merchant, as listed in the Application. You own and control the Settlement Account, and no security interest or lien of any type in favor of a Person exists regarding the Settlement Account or any Card Transaction.
You hereby authorize us and our merchant processor to make debit or credit entries and adjustments to the Settlement Account as necessary. You will, upon demand by us, execute any documentation required by your financial institution to enable us to make such debits and credits. You further authorize us to confirm with your financial institution that the Settlement Account is in good standing and to reconfirm such any time there is a change in your Account information.
Nothing herein shall be interpreted to negate our right to invoice you for any amounts you owe us under this Agreement, which amounts shall be immediately due and payable.
The following provisions of this Section shall apply to the Reserve:
We will withhold from you a reserve equal to the percentage of your gross sales (“Reserve”) for each day you participate in our programs. The Reserve is in addition to the fees and charges that will be assessed against you and shall be held in accordance with the terms of the Agreement. In addition, we may increase the percentage of gross sales withheld for the Reserve if there are excessive Disputes, Refunds, and Returns, or if we, in our sole discretion, deem that either you or the Products you offer create a financial or reputational risk to us, or if we otherwise reasonably deem ourselves insecure. We may fund the Reserve by deductions from payments due to you, by charges against the Settlement Account, or by making a demand to you for the amount necessary to fully fund the Reserve, which demand you will comply with within one (1) business day. You shall not have the ability to debit the Reserve during the period it remains open and you will obtain and execute the documents required by the financial institution where the Reserve is established that enable us to make such debits and to restrict you from debiting the Reserve. The amount required to be maintained in the Reserve and the terms and conditions for maintaining the account shall be established by us, in our reasonable discretion. Upon termination of this Agreement, we may require an additional Reserve to cover possible indebtedness to us for Transactions initiated prior to termination. The Reserve will be maintained after the termination date of this Agreement until we determine that the release of the funds to you is prudent, in our best interest, commercially reasonable, and all of your contingent liabilities are fully resolved. Upon expiration of this period, any balance remaining in the Reserve will be paid to you. We will inform you of any charges debited to the Reserve during this period. You hereby grant us a security interest in the Reserve and all proceeds thereof to secure all fees, costs, and charges due in accordance with this Agreement. The Reserve will be separate from the Settlement Account. You shall have no right of withdrawal from the Reserve. If we request, we, you and the financial institution where the Reserve is held will enter into an authenticated agreement requiring the financial institution to abide by our directions with regard to the funds in the Reserve applicable to you. In addition to any regularly required Reserve, we may, at our sole discretion, direct funds to the Reserve and withhold payment to you at any time that we become concerned about any aspect of your business including, but not limited to concerns about the operation, management or financial performance of your business, or concerns about the Products you offer for sale.
You will not at any time during the term of this Agreement, or until all amounts due under this Agreement have been paid in full, grant or pledge any security interest or lien in the Reserve, Settlement Account, or Transaction proceeds to any Person, without our prior written consent.
K. Billing Statements; Disputed Charges.
We shall calculate the fees, charges, and expenses payable to us by you hereunder with respect to the immediately preceding calendar month, and deliver to you a statement of the fees, charges, and expenses payable to us. All fees, charges, expenses, and other amounts reflected on such statement shall be deemed accurate and final unless you deliver a written notice to us disputing any such amounts within ninety (90) days after you receive such statement.
Upon delivery of the statement described above, we may debit or credit the Settlement Account through the use of the Automated Clearing House (“ACH”) for all amounts included in the statement. In the event funds in the Settlement Account at the time of such debit are insufficient to pay us the full amount due us, you shall, upon demand by us, immediately pay us any remaining amount by ACH or other method specified by us. We reserve the right to deduct all fees, charges, fines, penalties, and other expenses that you are responsible for from the Reserve if the balance in the Settlement Account is insufficient to pay all monies due to us. For any amounts not paid when due, you shall, in addition to the outstanding amount, pay us a servicing fee on the outstanding amount at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law.
We may be holding funds that are due to you under this Agreement, if we are unable to deliver the funds to you because you have not provided us with current contact information. If the inability to contact you to deliver such funds continues for several years, the exact number of which is dependent upon the laws of the state where you are located, we may have to deliver those funds to the applicable governmental agency as unclaimed funds. In that instance, you agree we may assess you such fees and charges as are permitted by the laws of your state.
5. PAY PERIODS AND PAYMENT SCHEDULES.
A. Standard Pay Periods.
A standard pay period is one week in length, commencing at 12:00 p.m. on Thursday and ending immediately prior to 12:00 p.m. on the following Thursday (“Payment Cycle”). Payments due to you, consisting of the sum of the money received for all Transactions less all fees and charges due to us (“Purchase Payment”) will be paid each Thursday. The period upon which the payments due to you are calculated shall include the forty-eight (48) hour period immediately preceding the start of the Payment Cycle and exclude the forty-eight (48) hours immediately preceding the end of the Payment Cycle.
B. Delay in Payment.
We may delay Purchase Payments while we verify certain aspects of any Transaction, including, without limitation, proof of shipment of the Product (“Verification Processes”). We will establish Verification Processes and may, in our discretion, modify them to ensure the quality of products and services you provide.
In the event we, in our discretion, determine that there is a need for an investigation and analysis regarding fraud, violation of Card Association Rules, violation of our Prohibited Products List, or violation of law relating to the Transactions performed on your behalf, we may withhold payment of Purchase Payments to you without penalty, to enable us to complete such investigation and analysis. If it is determined that there has been fraud, violation of Card Association Rules, violation of our Prohibited Products List, or violation of law relating to the Transactions performed on your behalf, we may withhold payment of the Purchase Payments to you indefinitely.
C. Payment Date.
Accounts will not be eligible for a Purchase Payment until the end of the Payment Cycle following the Payment Cycle in which you commenced doing business with us.
D. No Interest.
In no event shall you earn any interest on, or any other form of earnings for, any Purchase Payments or funds held in the Reserve, regardless of the length of time during which we or Member are in possession of such funds.
6. PAYMENT OPTIONS.
A. Payment Options.
You may elect to have Purchase Payments paid by direct ACH deposit or by check. ACH transactions are performed at no cost to you. The fees for each payment option are as described in the Merchant Fee Schedule under the category Fees for Payment Options.
B. Error Fees.
1) An Error occurs when any of the following events take place:
a. Return Wire;
b. ACH Pass Through;
c. ACH Return; or
d. Check Stop Payment.
2) Fees for each of these items, per occurrence, will be as described in the Merchant Fee Schedule under the category Error Fees.
3) We may change the amounts indicated herein, at our sole discretion, without prior notice to you. You agree to pay all Wire Transfer Fees in effect at the time you initiate a wire transfer.
C. Claim of Error.
In the event you believe that we have committed an error in a payment to you, you shall notify us in accordance with Section 17 of this Agreement within thirty (30) days of the delivery of a statement from us. Your failure to so notify us shall be deemed to be an acceptance of the statement.
This Agreement shall remain in effect from the Effective Date until terminated as provided herein.
8. DISCLAIMER OF WARRANTIES.
YOU UNDERSTAND AND AGREE THAT THIS IS A SERVICE AGREEMENT AND THAT WE ARE PROVIDING OUR SERVICES TO YOU “AS IS”. gorillaPay.net, ACQUIRER, AND BANK DISCLAIM ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO MERCHANT OR ANY OTHER PERSON, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR OTHERWISE OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY SERVICES OR ANY GOODS PROVIDED BY A THIRD PARTY, INCLUDING ACQUIRER OR BANK.
9. LIMITATION OF LIABILITY.
YOU ASSUME ALL LIABILITY FOR YOUR USE OF OUR SERVICES. NEITHER WE NOR MEMBER SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE, THE SERVICES, THE INABILITY TO USE THE SERVICES, OR THOSE RESULTING FROM ANY PRODUCTS PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
IN NO EVENT SHALL YOU BE ENTITLED TO RECOVER DAMAGES FROM US OR MEMBER THAT EXCEED THE SUM OF FEES FOR SERVICES RECEIVED FROM YOU BY US UNDER THIS AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES.
NEITHER WE NOR MEMBER ASSUME ANY LIABILITY FOR YOUR FAILURE TO PERFORM IN ACCORDANCE WITH THIS AGREEMENT OR ANY RESULTS CAUSED BY YOUR ACTS, OMISSIONS OR NEGLIGENCE, A SUBCONTRACTOR OR AN AGENT OF YOURS OR AN EMPLOYEE OF YOURS OR ANY OF YOUR AGENTS OR SUBCONTRACTORS, NOR SHALL WE OR MEMBER HAVE ANY LIABILITY FOR CLAIMS OF THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, CLAIMS OF THIRD PARTIES ARISING OUT OF OR RESULTING FROM, OR IN CONNECTION WITH, YOUR PRODUCTS, MESSAGES, PROGRAMS, CALLER CONTRACTS, PROMOTIONS, ADVERTISING, INFRINGEMENT, OR ANY CLAIM FOR LIBEL OR SLANDER OR FOR VIOLATION OF COPYRIGHT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHTS.
YOU ACKNOWLEDGE AND AGREE THAT THE RELATIONSHIP IN CONNECTION WITH THIS AGREEMENT IS WITH gorillaPay.net AND NOT ACQUIRER OR BANK. ACCORDINGLY, MERCHANT SHALL SEEK NO RECOURSE AGAINST ACQUIRER OR BANK, AND NEITHER ACQUIRER NOR BANK SHALL HAVE ANY LIABILITY WHATSOEVER TO MERCHANT, FOR ANY DIRECT OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO SERVICES PERFORMED HEREUNDER.
A. By You.
1) You agree to indemnify and hold us, Acquirer, Bank, and our, Acquirer, and Bank employees, officers, agents, shareholders, and directors harmless from any and all claims, losses, damages, costs, expenses (including attorneys’ fees), fines, penalties regardless of whether the same are actual, direct, indirect, special, incidental, consequential, or punitive (“Damages”) resulting from or in connection with this Agreement or incurred as a result of, or related to, the causes set forth below:
a. Your breach of any warranty or representation;
b. Your violation of any law, rule, or regulation;
c. Intellectual property infringement claims related to your website or service;
d. Reckless or willful misconduct by you and any of your agents, employees, officers, or directors; or
e. Claims of third parties arising out of or resulting from, or in connection with your products, services, messages, programs, caller contracts, promotions, advertising, infringement, or any claim for libel or slander.
2) We shall retain all funds we have that are attributable to you, including any amounts in the Reserve, until such time as a determination is made as to the amount of damages, costs, and expenses incurred by us. Upon making such determination, we may apply as much of the funds being held as is necessary to reimburse us.
B. By Us.
In no event will we be liable to indemnify any party for any Damages arising directly or indirectly from our Services, even if we are expressly advised of the possibility of such damages.
A. By You.
You may terminate this Agreement at any time upon thirty (30) days prior written notice to us.
B. By Us, Member, or Card Organization.
We may terminate this Agreement at any time for any reason, or for no reason by providing you with a notice that the Agreement is terminated as of the date of the notice. We may also terminate this Agreement without notice or penalty, if in our sole discretion, such termination is necessary for us to comply with our obligations under any Applicable Law, rule or regulation including, but not limited to, anti-money laundering regulations, the Office of Foreign Assets Control Regulations, or Card Organizations Operating Rules. Our termination of this Agreement pursuant to this Subsection shall not be deemed a breach of contract.
You acknowledge that Member or Card Organizations may terminate or suspend, at their option and without notice or penalty, your participation in the program contemplated hereunder.
If this Agreement is terminated for cause and/or for an Event of Default, you acknowledge that your business name and the names and other identification of your principals may be reported to the terminated merchant files maintained by the Card Organizations. You expressly agree and consent to such reporting in the event you are terminated as a result of the occurrence of an event of default or for any reason specified as cause by a Card Organization. Furthermore, you agree to waive and hold us and Member harmless from and against, any and all claims which you may have as a result of such reporting.
C. EVENTS OF DEFAULT.
1) In addition to its other rights set forth in the Agreement, gorillaPay.net may terminate this Agreement immediately without notice if any of the following events shall occur (each an “Event of Default”):
a. Irregular Card sales by Merchant, excessive Chargebacks, noncompliance with any applicable data security standards, as determined by gorillaPay.net, any Card Organization, Acquirer, or Bank, or an actual or suspected data security breach, or any other circumstances which, in the discretion of gorillaPay.net, Acquirer, or Bank, may increase the risk exposure of such parties or otherwise present a direct or indirect financial or security risk to such parties; or
b. A violation by Merchant of any Applicable Law or Card Organization Rule or gorillaPay.net’s, Acquirer’s, or Bank’s reasonable belief that termination of this Agreement or suspension of Services is necessary to comply with any law including without limitation the rules and regulations promulgated by the Office of Foreign Assets Control of the U.S. Department of the Treasury.
2) Notwithstanding any other provisions of this Agreement, gorillaPay.net may terminate this Agreement at any time at the instruction of Acquirer, Bank, or any Card Organization. Further, this Agreement will automatically and immediately terminate upon the termination of gorillaPay.net’s agreement with Acquirer and Bank, and will automatically and immediately terminate with respect to a particular Card Organization if gorillaPay.net is de-registered by such Card Organization, Bank ceases to be a member of such Card Organization, or if Acquirer fails to have a valid license to use such Card Organization’s Marks.
3) Payments/Obligations to be Completed After Termination.
Upon termination of this Agreement, any outstanding and unpaid fees and charges of yours owed to us shall become immediately due and payable.
In the event that you fail to perform any duty, obligation, or provision contained in this Agreement (“Default”), you agree to pay to us any damages, expenses, and costs, whether directly or indirectly caused, including reasonable attorney’s fees incurred by us due to your Default.
Neither the expiration nor termination of this Agreement shall terminate the obligations and rights of the parties pursuant to provisions of this Agreement which by their terms are intended to survive or be perpetual or irrevocable. Such provisions shall survive the expiration or termination of this Agreement.
A. Obligation to Pay Own Taxes.
You are responsible for the payment of all taxes applicable to the conduct of your business, including, without limitation, state sales tax.
B. Your Obligation to Pay Taxes Resulting from Our Services.
You agree that if additional taxes in the nature of an excise, sales, or use tax are imposed in connection with our Services and paid by us on your behalf, you shall be liable to us in an amount equal to the amount of such tax payment made by us. You authorize us to collect and pay over taxes in the nature of an excise, sales, or use tax on your behalf, if reasonably required to do so by any jurisdiction’s taxing authority. We shall have the right to recover from you the amount of any such taxes, related penalties, and interest paid by us with our own funds. You shall also pay us for any related expenses incurred by us, including reasonable attorney’s fees, in our collection of any amounts due from you. You acknowledge that gorillaPay.net will report to the Internal Revenue Service the total number of transactions and gross amount processed for you by gorillaPay.net, per month, for each calendar year, for all the Accounts you own if, during any one calendar year, gorillaPay.net processes on your behalf: (i) $20,000 or more; and (ii) 200 transactions or more.
13. FORCE MAJEURE.
Notwithstanding anything to the contrary contained herein, neither we nor a processor we engage nor Member shall be liable to you for any failure or delay on our part to perform, and we shall be excused from performing, any of our obligations hereunder if such failure, delay or nonperformance results in whole or in part from any cause beyond our reasonable control, including, without limitation, any act of God; any fire, flood, or weather condition; any earthquake or other natural disaster; any act of a public enemy, act of terrorism, war, government collapse, government restriction, civil disturbance, riot, explosion, strike or other labor dispute, labor or material shortage, energy crises, blackouts or brownouts, or Internet disruptions; any interruption or shortage of, or failure or delay in, transportation, utilities, networks, material, supplies, equipment, machinery, power, or spare parts; and any act of any military or civil authority.
14. CHOICE OF LAW, JURISDICTION, AND VENUE.
You agree that the laws of the State of Ohio, without reference to its conflict of law principles, will govern this Agreement, and that any claim or suit arising out of or related to this Agreement must be brought exclusively in the federal or state courts located in the State of Ohio, Franklin County, U.S.A. You consent to the exclusive jurisdiction of such courts.
15. ENFORCEMENT ACTIVITIES.
A. Lawful Use.
Our website and Services may be used only for lawful purposes and in a lawful manner. You may not register under a false name, mask your true identity or the Products you offer to the public, or use an invalid or unauthorized credit or debit card or invalid or unauthorized bank account information. You shall not impersonate any participant or use another participant’s information. Fraudulent conduct may be reported to law enforcement, and we may cooperate in any investigation.
We, Member, and the Card Organizations have the right, but not the obligation, to monitor any activity and content associated with your website as it relates to the Services, and may investigate any reported violation of our or their policies or complaints and take any action that we or they deem appropriate. Such action may include, but is not limited to, issuing warnings, suspension, or termination of Services. You hereby consent to allow us, Member, and the Card Organizations (or their agents or auditors) to access your website in order that we or they may conduct such monitoring and investigation.
You must at all times cooperate with Member and its representatives that handle its card processing services (“Servicers”). We and Servicers shall have the right to conduct, during normal business hours and upon reasonable advance notice to you, an onsite audit of your facilities, books, records, and documentation, in any form of media and wherever located, to ensure that such your card acceptance procedures, data security, and fraud controls meet the Card Organizations Operating Rules, our and Servicers’ standards, and Applicable Law. You must provide us and Servicers with all necessary information and assistance required by us and Servicers prior to, during, and following any such audit.
In addition to any other remedies available to Payment gorillaPay.net under this Agreement, Merchant agrees that should any termination for cause and/or Event of Default occur under the Agreement (whether or not formally declared), gorillaPay.net may, with or without notice, amend this Agreement or cause processing and/or settlement funding to be suspended, until it has had reasonable opportunity to investigate such event
C. Disclosure of Information.
gorillaPay.net may, in its sole discretion, without any liability to you or any third party, take any actions it deems necessary or appropriate to comply with any Applicable Law, order or requirement of a court, administrative agency, or other government entity.
We, Member, and any Card Organizations may report any activity that we or they suspect is a violation of any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect our systems and those of Member and the Card Organizations, all Merchants, and customers, or to ensure the integrity and operation of our and their business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
You authorize us and Member to disclose Card Transaction data and other information relating to you, any Guarantor and each of their owners, to the Card Organizations, current and prospective Card issuers, current and prospective acquirers, regulatory authorities, and other entities to whom we or Member or any such entity may be required to provide such information and to each such entity’s affiliates, agents, subcontractors and employees, for purposes we, Processor, Member or such other entities deem necessary in our, Member’s, or such other entities’ reasonable discretion, including, without limitation, in connection with the performance of their various obligations hereunder or under the Operating Rules or Applicable Law. Without limiting the generality of the foregoing, it is understood and agreed that a file for terminated merchants referred to herein as “MATCH” (whether referred to by the applicable Card Organizations as “MATCH” or by any other name) is maintained by Card Organizations containing the names of any business (and its principals) which have been terminated for certain reasons, including, without limitation, fraud, depositing excessive counterfeit paper, excessive unauthorized Transactions, depositing paper for others (laundering), bankruptcy, or breach of its agreement regarding Card processing. You acknowledge that Member is required to report you to the “MATCH” if this Agreement is terminated for any of the foregoing reasons or other reasons as may be specified by the Card Organizations. You agree and consent to such reporting in the event of such termination of this Agreement.
A. Purpose Limitation.
Unless specifically authorized by the customer, you shall use the personal information of customers solely for the purposes set forth in this Agreement. You shall not use customer personal information for purposes of unsolicited e-mail or spamming, harassment, invasion of privacy, or other objectionable conduct.
In addition to any confidentiality obligations set forth in Section 21, unless Merchant obtains consents from gorillaPay.net and each applicable Card Organization, Issuer, and Cardholder, Merchant must not use, disclose, store, sell, or disseminate any Cardholder information obtained in connection with a Card transaction (including the names, addresses and Card account numbers of Cardholders) except for purposes of authorizing, completing and settling Card transactions, and resolving any Chargebacks, Retrieval Requests, or similar issues involving Card transactions, other than pursuant to a court or governmental agency request, subpoena or order. Merchant shall use proper controls for and limit access to, and render unreadable prior to discarding, all records containing Cardholder account numbers, and Card imprints. Merchant may not retain or store Magnetic Stripe data or Card Validation Codes after a transaction has been authorized. If Merchant stores any electronically captured signature of a Cardholder, Merchant may not reproduce such signature except upon gorillaPay.net’s specific request.
You shall hold personal information of customers in confidence and shall not disclose such information to third parties. You shall take adequate technical and organizational security measures to protect personal information of customers against unlawful forms of use, disclosure, or other forms of processing. These obligations shall be in addition to, and not in limitation of, your obligations set forth or referenced elsewhere herein with respect to the privacy, confidentiality, security, and retention/non-retention of Cardholder and Card Transaction information.
You shall cooperate with gorillaPay.net’s efforts to monitor your compliance with your obligations under this Agreement. gorillaPay.net shall have the right to make reasonable requests to conduct any audits, tests, or reports related to your obligations under this Agreement or to review and obtain copies of such activities.
You shall retain the personal information of customers only for as long as necessary to perform your obligations under this Agreement, and shall comply with Applicable Law and all Operating Rules pertaining to the non-retention of Card Transaction and Cardholder data.
During the Term of this Agreement, You shall not assign, sell, or exchange, this Agreement without the prior written consent of gorillaPay.net, Acquirer, and Bank.
Upon our request, you agree to give us access to any personal information supplied to you by us, for us, or on our behalf.
F. Privacy Statement.
Notwithstanding any other provisions of this Agreement, within ninety (90) days following termination of this Agreement, you shall, at our direction: (a) comply with any other agreement made between the parties concerning the return or destruction of data; (b) return all personal data passed to you by us for processing; or (c) on receipt of instructions from us, erase the data using commercially reasonable methods and indemnify us for any harm resulting from such failure, unless prohibited from erasing by any Applicable Law or order.
A. Addressed to:
Gorilla Pay, Inc.
495 NE 4th Street
Delray Beach, FL 33483
Attn: Chief Operations Officer
To the last address you provided to us.
To the last e-mail address you provided to us.
B. Method of Delivery and Date of Receipt.
Any written notice under this Agreement, which shall include e-mail to you from us, shall be deemed given and delivered upon the earlier of: (a) actual receipt; or (b) five (5) days after being deposited in the United States mail, postage prepaid, and addressed to the party to whom the notice is being sent as set forth in Section 17.A.; or (c) one (1) business day after being sent by e-mail or other electronic communication from us to you at the e-mail address described in Section 17.A.
C. Notice of New Address.
Either party may communicate a change in its mailing address by notifying the other party in accordance with Sections 17.A and/or 17.B. in writing, including an electronic communication from us to you, which sets forth the old mailing address and provides the new mailing address.
The headings herein are inserted as a matter of convenience only and do not define, limit, or describe the scope of this Agreement or the intent of the provisions hereof.
19. SEVERABILITY OF PROVISIONS.
Each provision of this Agreement shall be considered severable; and if, for any reason, any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid.
20. INTELLECTUAL PROPERTY.
Except for the rights expressly granted herein, this Agreement does not transfer any intellectual property or technology of ours to you and all rights, title and interest in such intellectual property and technology, whether developed, licensed or owned by us shall remain with us. You agree that you will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets of ours.
In addition to the obligations you have under Section 16 with respect to the protection of the privacy of customer information, both parties shall protect the confidentiality of the confidential information of the other as described in this Section 21.
A. Definition of Confidential Information.
Confidential Information shall include, without limitation: (i) matters of a technical nature such as trade secret processes or devices, data formulas, inventions and specifications; (ii) matters of a business nature such as information about costs, profits, pricing policies, markets, sales, suppliers, employees, product plans and marketing plans or strategies; (iii) other information of a similar nature not generally disclosed by a party to the public; (iv) information containing confidential or proprietary notices; and (v) confidential or proprietary information of third parties disclosed to a party under a non-disclosure agreement and appropriately identified as confidential or proprietary.
B. Protection of Confidential Information.
Each party shall maintain the confidentiality of the other’s Confidential Information and will not disclose such Confidential Information without the prior written consent of the other party. In addition, neither party shall use the other party’s Confidential Information except has contemplated herein. Neither party shall use the name, logo, or trademarks of the other without prior written approval of the other.
C. Ownership Rights.
Merchant acknowledges that it will not obtain ownership rights in any information relating to and derived from Card transactions. Cardholder account numbers, personal information and other Card transaction information, including any databases containing such information, may not be sold or disclosed to a Person as an asset upon a bankruptcy, insolvency or failure of Merchant’s business. Upon a bankruptcy, insolvency, or failure of Merchant’s business, if requested, all Card transaction information must be returned to gorillaPay.net or acceptable proof of the destruction of all Card transaction information must be provided to gorillaPay.net.
Merchant agrees that gorillaPay.net, Acquirer, or Bank may obtain relevant information from any applicable telecommunications provider utilized by Merchant, as necessary to investigate any allegation of fraud, suspected fraud, or other actual or alleged wrongful act by Merchant in connection with the Services.
E. Assignment of Card Organization Marks.
Merchant shall not assign to any Person, the rights to use the Marks of the Card Organizations or the Marks of Acquirer or Bank.
F. Equitable Remedy.
Merchant acknowledges that breach of the restrictions on use or disclosure of any of gorillaPay.net’s confidential information would result in immediate and irreparable harm to gorillaPay.net, and money damages would be inadequate to compensate for that harm. gorillaPay.net shall be entitled to equitable relief, in addition to all other available remedies, to redress any breach.
gorillaPay.net acknowledges that the disclosure of the other Merchant’s Confidential Information would cause substantial harm to Merchant that could not be remedied by the payment of damages alone. Accordingly, Merchant will be entitled to preliminary and permanent injunctive relief for any breach or threatened breach of this Section 21 by gorillaPay.net.
22. THIRD PARTY BENEFICIARIES.
MERCHANT AND gorillaPay.net AGREE THAT ACQUIRER AND BANK ARE INTENDED THIRD PARTY BENEFICIARIES OF THIS AGREEMENT AND MAY ENFORCE IT AGAINST MERCHANT AS IF THEY WERE PARTIES TO THIS AGREEMENT.
You agree to be bound by any electronic affirmation, assent, or agreement transmitted through our website. You represent that you have the authority to agree to this Agreement. You agree that any decision or action to click on an “I agree”, “I consent”, or other similarly worded “button” or entry field using a mouse, keystroke or other computer device, will indicate your agreement and will be legally binding and enforceable and the legal equivalent of your handwritten signature.
You acknowledge: (a) that you have read and understood this Agreement; (b) that this Agreement has the same force and effect as a signed agreement; and (c) that this Agreement constitutes the entire agreement between us and you and governs your use of the Services, superseding any prior agreements between you and us pertaining to the Services.
The relationship between us and you shall be that of independent contractors. Neither party will be considered an agent, employee, joint venturer, or partner of the other, unless otherwise specifically provided herein and shall have no authority to act on behalf of the other except as specifically set forth in this Agreement.
As used in this Agreement, the following terms mean as follows:
Acquirer: An entity contracted by Payment Facilitator to submit Sales Drafts and transaction information to the Card Organizations on behalf of Payment Facilitator and to receive and pay to Payment Facilitator settlement funding for such sales transactions.
Affiliate: An “Affiliate” of a party is a Person that, directly or indirectly: (i) owns or controls such party; or (ii) is under common ownership or control with such party.
Applicable Law: All federal, state and local statutes, ordinances, laws, regulations, and executive, administrative, and judicial orders applicable to the Agreement, the transactions, or other matters contemplated under the Agreement (including, without limitation, the rules and regulations promulgated by the Office of Foreign Assets Control of the U.S. Department of the Treasury), and all amendments thereto; and with respect to Bank, also guidance by its financial institution regulators.
Bank: A financial institution that is a member of the Card Organizations and provides Card Organization sponsorship for Card transactions submitted by Payment Facilitator for processing hereunder, also referred to as “Member.”
Card: See either Credit Card or Debit Card.
Cardholder: The Person whose name is embossed on a Card (or Debit Card, as applicable) and any authorized user of such Card.
Card Organization: Any entity formed to administer and promote Cards, including without limitation MasterCard Worldwide (“MasterCard”), Visa U.S.A., Inc. (“Visa”), DFS Services LLC (“Discover Network”) and any applicable debit networks.
Card Organization Rules: The rules, regulations, releases, interpretations, and other requirements (whether contractual or otherwise) imposed or adopted by any Card Organization and related authorities, including without limitation, those of the PCI Security Standards Council, LLC, and the National Automated Clearing House Association (including, with respect to EBTs, the Quest Operating Rules).
Chargeback: A Card transaction (or disputed portion) that is returned to Acquirer by the Issuer.
Credit: A refund or price adjustment given for a previous purchase transaction.
Credit Card: A device bearing a valid Card Organization Mark and authorizing the Cardholder to buy goods or services on credit.
Debit Card: See either PIN Debit Card or Non-PIN Debit Card.
Issuer: The financial institution or Card Organization which has issued a Card to a Person.
Merchant Provider: Any Person engaged to provide services involving or relating to: (i) access to Cardholder data transaction data or information related to either Cardholder data or transaction data; or (ii) PIN encryption, including without limitation, Encryption Service Organizations (ESOs), also referred to as “Third Party Service Provider.”
Marks: Names, logos, emblems, brands, service marks, trademarks, trade names, tag lines, or other proprietary designations.
Member: A financial institution that is a member of the Card Organizations and provides Card Organization sponsorship for Card transactions submitted by Payment Facilitator for processing hereunder, also referred to as “Bank.”
Non-PIN Debit Card: A device with a Card Organization Mark that is tied to a Cardholder’s account or a prepaid account and which is processed without the use of a PIN.
Payment Facilitator: An entity registered by an Acquirer to facilitate Transactions on behalf of Merchants, in this case, gorillaPay.net.
Person: A third party individual or entity, other than the Merchant.
PIN: A Personal Identification Number entered by the Cardholder to submit a PIN Debit Card transaction.
PIN Debit Card: A device bearing the Marks of ATM networks (such as NYCE or Star) used at a Merchant location by means of a Cardholder-entered PIN in the Merchant PIN Pad.
Reserve Account: An account established and funded pursuant to terms set forth in this Agreement to serve as security for amounts owed by Merchant to Payment Facilitator under this Agreement.
Retrieval Request/Transaction Documentation Request: A request for documentation related to a Card transaction such as a copy of a Sales Draft or other transaction source documents.
Sales Draft: Evidence of a purchase, rental or lease of goods or services by a Cardholder from, and other payments to, Merchant using a Card, regardless of whether the form of such evidence is in paper or electronic form or otherwise, all of which must conform to Card Organization Rules and Applicable Law.
Services: The authorization, processing, and settlement services provided by Payment Facilitator to Merchant pursuant to the terms and conditions set forth in this Agreement.
Settlement Account: An account or account(s) at a financial institution designated by Merchant as the account to be debited and credited by Payment Facilitator for Card transactions, fees, Chargebacks, and other amounts due under or in connection with this Agreement.
Third Party Service Provider: Any Person engaged to provide services involving or relating to (i) access to Cardholder data, transaction data or information related to either Cardholder data or transaction data or (ii) PIN encryption, including without limitation, Encryption Service Organizations (ESOs), also referred to as “Merchant Provider.”
Rev: February 14, 2013