AffiniPay Services Agreement
Effective Date: Jan 1, 2020
This AffiniPay Services Agreement is a legal agreement (this “Agreement”) between you (“Customer,” “you” or “your”) and AffiniPay, LLC (d/b/a LawPay, CPACharge, and MedPay) (“AffiniPay,” “we,” “our” or “us”). As used in this Agreement, the “Service” and the “Services” refers to AffiniPay’s payment processing services, as well as our website, any software, programs, documentation, tools, hardware, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you by AffiniPay, directly or indirectly. To use the Service, you must agree to all the terms of this Agreement.
This Agreement incorporates by reference all policies, notices, and other content that appear on our website at www.affinipay.com (collectively, the “Website”). You should specifically review the User Guide posted on our website (the “User Guide”), which is hereby incorporated by reference and is made a part of this Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings set forth in Appendix A.
1. Customer Relationship with AffiniPay and with Others
AffiniPay provides the Service to users (“Customers”) to facilitate receipt by Customers of payments by card and bank transfer. These transactions are between Customers and persons who pay them (“Purchasers” or “Cardholders”). Neither AffiniPay, nor any bank, is a party to these transactions.
For payments by card, AffiniPay initiates the payment process by providing information to a processor that sends it to a bank that is a member of Visa U.S.A., Inc., Visa International (“Visa”), MasterCard International Incorporated (“MasterCard”), American Express Travel Related Services Company Inc. (“American Express”), or other payment card networks, association, or companies. The Bank is obligated to pay Customers under both (a) the provisions of its agreement with AffiniPay, and (b) the by-laws, operating regulations and all other rules, policies and procedures of the Networks as in effect from time to time (the “Network Rules”), that make the Bank responsible for settling with you as a merchant. For payments by bank transfer, AffiniPay initiates the payment process by providing information to the Bank through the National Automated Clearing House (“ACH”).
2. Limitations on AffiniPay’s and Others’ Responsibility
Neither AffiniPay nor any other third party makes any representations or guarantees regarding Customers or Purchasers utilizing the Service. Use of our Service in no way represents any endorsement by AffiniPay or any Network, of a user's existence, legitimacy, ability, policies, practices, or beliefs. AffiniPay does not have control of, or liability for, goods or services that are paid for with the Service.
3. Our Fees
AffiniPay charges transaction processing fees to Merchants using the Service, as well as certain other fees, as set forth on the Pricing Addendum attached hereto as Appendix B (the “Pricing Addendum”), which is a part of the Agreement. These AffiniPay fees are debited from Customer’s bank account(s) or netted against other funds due to Customer. The Customer agrees to pay the fees for the Service that are set forth in the Pricing Addendum, as modified by AffiniPay from time to time upon notice to Customer (the “Fees”). Subject to the terms of this Agreement, we reserve the right to change our Fees at any time upon notice to you. By continuing to use the Service, you consent to the change in Fees. To withdraw your consent, you must close your Account.
4. E-Sign Disclosure and Consent
a. Consent to Electronic Disclosures and Notices . By accepting this Agreement, you agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, “Communications”) that we provide in connection with your AffiniPay Account and your use of the Service.
b. Methods of Delivery . You agree that AffiniPay can provide Communications regarding the Service to you through our website, or by mailing Communications to the email or physical addresses identified in your Account. Communications may include notifications about your Account, changes to the Service, or other information we are required to provide to you. You also agree that electronic delivery of a Communication has the same legal effect as if we provided you with a physical copy. We will consider a Communication to have been received by you within 24 hours of the time a Communication is either posted to our website or emailed to you.
c. Requirements for Delivery. You will need a computer or mobile device, Internet connectivity, and an updated browser to access the Webstite and review the Communications provided to you. If you are having problems viewing or accessing any Communications, please contact us and we can find another means of delivery.
5. Service Requirements, Limitations and Restrictions
Compliance with Applicable Laws; Prohibited Businesses and Activities . You must use the Services in a lawful manner, and must obey all laws, rules, and regulations (“Laws”) applicable to your use of the Services and to transactions, and in compliance in all respects with the Network Rules. You may not use the Services to enable any person (including you) to benefit any activities AffiniPay has identified as a prohibited business or activity (collectively, “Prohibited Businesses”), as posted on our Website from time to time. Prohibited Businesses include use of the Services for personal, family or household purposes or in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC). Please review the list of Prohibited Businesses thoroughly before registering for and opening an Account. If you are uncertain whether a category of business or activity is prohibited or have questions about how these restrictions apply to you, please contact us. We may add to or update the Prohibited Business List at any time. In addition, you may not allow, and may not allow others to: (i) access or attempt to access non-public AffiniPay systems, programs, data, or services; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the Services or our website except as expressly permitted by applicable Laws; (iii) act as service bureau or pass-through agent for the Services with no added value to your clients; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited; (vi) reverse engineer or attempt to reverse engineer the Services except as expressly permitted by Laws; (vii) perform or attempt to perform any actions that would interfere with the normal operation of the Services or affect use of the Services by our other users; or (ix) impose an unreasonable or disproportionately large load on the Service.
6. Your License
AffiniPay grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Services and API solely to for the purposes contemplated by this Agreement.
You may not, nor may you permit any third party to, do any of the following: (i) access or monitor any material or information on any AffiniPay system using any manual process or robot, spider, scraper, or other automated means unless you have separately executed a written agreement with AffiniPay referencing this section that expressly grants you an exception to this prohibition; (ii) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material or information from AffiniPay; (iii) permit any third party to use and benefit from the Service via a rental, lease, timesharing, service bureau or other arrangement; (iv) perform or attempt to perform any actions that would interfere with the proper working of the Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (v) otherwise use the Service except as expressly allowed under this section.
7. Our Intellectual Property Rights
The Service is licensed and not sold. We reserves all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. AffiniPay owns the title, copyright and other worldwide intellectual property rights in the Service and all copies of the Service. This Agreement does not grant you any rights to AffiniPay’s trademarks or service marks, nor may you remove, obscure, or alter any of AffiniPay’s trademarks or service marks included in the Service.
You may choose to, or we may invite you to, submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Feedback”). By submitting Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place AffiniPay under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, AffiniPay does not waive any rights to use similar or related ideas previously known to AffiniPay, or developed by its employees, or obtained from sources other than you.
a. PCI Compliance . AffiniPay represents and warrants that it is a PCI Level 1 Certified Payment Service Provider and will comply with the applicable provisions of the Payment Card Industry Data Security Standards (“PCI-DSS”), and AffiniPay will provide its Attestation of Compliance upon request. If you use Payment Processing Services to accept payment card transactions, you must also comply with PCI-DSS and all other applicable Security Standards. You will promptly provide us with documentation demonstrating your compliance with PCI-DSS upon our request. If you elect to store or hold “Account Data”, as defined by PCI-DSS (including Customer card account number or expiration date), you must maintain a system that is compliant with the PCI-DSS and, if applicable, the Payment Application Data Security Standards (PA-DSS).
b. AffiniPay Security . You acknowledge and agree that the information you provide to AffiniPay about your business, operations, and customers (your “Customer Data”) and any information that specifies a living person (“Personal Data”) is transmitted with the understanding that any security measures we provide may not be appropriate or adequate for your specific business, and you agree to implement security controls that meet your specific requirements. In our sole discretion, we may take any action, including suspension of your Account, to maintain the integrity and security of the Services, or to prevent harm to you, us, Customers, or others. You waive any right to make a claim against us for losses you incur that may result from such actions we may take to prevent such harm.
c. Customer Security . You are solely responsible for the security of any data on your website, your servers, in your possession, or that you are otherwise authorized to access or handle. You will comply with applicable Laws, Security Requirements and Network Rules when handling or maintaining Customer Data and Personal Data, and will provide evidence of your compliance to us upon our request. If you do not provide evidence of such compliance to our satisfaction, we may suspend your Account or terminate this Agreement. You will promptly notify us in the event that there is any compromise or suspected compromise of Payment Account Details related to Transactions that you submit to us.
d. Confidentiality . AffiniPay will only use User Data as permitted by this Agreement, by other agreements between you and us, or as otherwise directed or authorized by you. You will protect all Data you receive through the Services, and you may not disclose or distribute any such Data, and you will only use such Data in conjunction with the Services and as permitted by this Agreement or by other agreements between you and us. Neither party may use any Personal Data to market to Customers unless it has received the express consent from a specific Customer to do so. You may not disclose Payment Data to others except in connection with processing Transactions requested by Customers and consistent with applicable Laws and Network Rules.
10. Registering for Use of Payment Processing Services
Customers must register with AffiniPay. To register, a Customer provides information, including email address and a self-selected password, in order to create an account (“Account”). You are responsible for maintaining the secrecy and security of your Account access credentials and for any use of or action taken under them. We also offer an application programming interface (the “API”) that allows you to retrieve information from or submit requests to AffiniPay. When you register for an Account, you may be asked for financial information, or information we use to identify you, your representatives, principals, beneficial owners, and other individuals associated with your Account. Throughout the term of this Agreement, we may share information about your AffiniPay Account with Networks and Banks in order to verify your eligibility to use the Payment Processing Services, establish any necessary accounts or credit with Networks and Banks, monitor Charges and other activity, and conduct risk management and compliance reviews. We will review and may conduct further intermittent reviews of your Account information to determine that you are eligible to use the Payment Processing Services. You authorize us and our Affiliates to obtain from third parties financial and credit information relating to you in connection with our determination whether to accept this Agreement and our continuing evaluation of your financial and credit status.
11. Additional Terms
Your use of the Payment Processing Services is subject to additional terms that apply between you and one or more of AffiniPay, an AffiniPay affiliate, and a Bank (the “Additional Terms”). The current Additional Terms are provided in Appendix C. By using the Payment Processing Services, you agree to the applicable Additional Terms, including those that separately bind you with our affiliates, Networks and/or Banks. Additionally, a Bank or Network may enforce the terms of this Agreement directly against you.
We may add or remove Banks and Networks at any time. The Additional Terms may also be amended from time to time. Your continuing use of the Payment Processing Services constitutes your consent and agreement to such additions, removals and amendments.
If your American Express Transaction volume exceeds a threshold amount set by a American Express, American Express may convert you to a direct American Express merchant, which means that your acceptance of American Express Transactions will be governed by American Express’ then-current Card Acceptance Agreement, and your pricing and other fees for the acceptance of American Express Transactions will be directly agreed between you and American Express. In the event of such conversion, your relationship with AffiniPay will not be otherwise affected, and AffiniPay will continue to process your American Express Transactions in accordance with this Agreement.
12. Security Interest
a. Clearing Funds . All funds resulting from Charges are held in pooled clearing accounts (the “Clearing Accounts”) with our banking partners. We will settle funds to and from the Clearing Accounts in the manner described in this Agreement; however, you have no rights to the Clearing Accounts or to any funds held in the Clearing Accounts, you are not entitled to draw funds from the Clearing Accounts, and you will not receive interest from funds maintained in the Clearing Accounts.
b. Reserves. In certain circumstances, we may require you to place funds in reserve or to impose conditions on the release of funds (each a “Reserve”). We may impose a Reserve on you for any reason if we determine that the risk of loss to AffiniPay, Purchasers, or others associated with your Account is higher than normal.
c. Security Interests. You grant us a lien and security interest in all funds for transactions that we process for you, including funds that we deposit into your Settlement Accounts, as well as funds held in any other bank accounts to which such transaction funds are deposited or transferred. This means that if you have not paid funds that you owe to us, your Purchasers, or to any of our affiliates, we have a right superior to the rights of any of your other creditors to seize or withhold funds owed to you for transactions that we process through the Services, and to debit or withdraw funds from any bank account associated with your Account (including your Settlement Accounts). Upon our request, you will execute and deliver any documents and pay any associated fees we consider necessary to create, perfect, and maintain a security interest in such funds (such as the filing of a form UCC-1). Notwithstanding the foregoing, AffiniPay does not, and will not, take any lien or security interest in any Trust Accounts in which you are prohibited by law or ethical codes of conduct enforced by your state bar association (if applicable) from granting any security interest .
d. Collection and Set-Off Rights. You agree to pay all amounts owed to us on demand. Your failure to pay amounts owed to us under this Agreement is a breach and you will be liable for any costs we incur during collection in addition to the amount you owe. Collection costs may include, attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, any applicable interest, and any other related cost. Where possible, we will first attempt to collect or set-off amounts owed to us from balances in your Accounts from your use of the Payment Processing Services or from funds that we hold in Reserve. However, we may collect any amounts you owe us under this Agreement by deducting or setting-off amounts that you owe from the AffiniPay account balance (or debiting the Settlement Account for such AffiniPay account) for any AffiniPay account that we determine, acting reasonably, is associated with your Account. Similarly, we may deduct or set-off amounts from your Account balance (or debit your Settlement Accounts) in order to collect amounts owed to us in relation to such associated AffiniPay accounts. Notwithstanding the foregoing, we shall not, in any event, debit a Trust Account.
e. Guarantees . We require a personal, parent or other guarantee (a “Guarantee”) from a Customer’s principal, owner, or other guarantor, in the form attached hereto as Appendix D. A Guarantee consists of a legally binding promise by an individual or an entity to pay any amounts the user owes in the event that the Customer is unable to pay. We will notify you of the amount of the required Guarantee. Unless we choose in our sole discretion to waive the Guarantee requirement, if you are unable to provide a Guarantee, then you will not be permitted to use the Services.
a. Termination by AffiniPay . We may terminate this Agreement and close your Account for any reason or no reason at any time upon notice to you. We may also suspend the Service and instruct the Bank to suspend access to your Account (including the funds in your Account) if you (a) have violated the terms of the AffiniPay’s policies or this Agreement, (b) pose an unacceptable credit or fraud risk to us, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.
b. Termination by Customer . You may terminate this Agreement by closing your Account at any time upon thirty days’ notice to us. When you close your Account, any pending transactions will be cancelled. Any funds that the Bank holding in custody for you at the time of closure, less any applicable Fees, will be paid out to you according to your payout schedule, assuming all payout-related authentication requirements have been fulfilled (for example, you may not close your Account as a means of evading your payout schedule). If an investigation is pending at the time you close your Account, the Bank may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds in dispute, the Bank will release those funds to you.
c. Effect of Termination . If your Account is terminated for any reason or no reason, you agree: (i) to continue to be bound by this Agreement, (ii) to immediately stop using the Service and to remove all card logos from your website and wherever else they are displayed, (iii) that the license provided under this Agreement shall end, (iv) that we reserve the right (but have no obligation) to delete all of your information and Account data stored on our servers, and (v) that we shall not be liable to you or any third party for termination of access to the Service, deletion of your information or Account data, or export of your information or Account data. We will not be liable to you for compensation, reimbursement, or damages in connection with any termination or suspension of the Service. Any termination of this Agreement does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement.
14. Right to Audit
If we believe that a security breach, leak, loss, or compromise of Data has occurred on your systems, website, or app affecting your compliance with this Agreement, we may require you to permit a third-party auditor approved by us to conduct a security audit of your systems and facilities, and you must fully cooperate with any requests for information or assistance that the auditor makes to you as part of the security audit. The auditor will issue a report to us which we may share with our Networks and Payment Methods Acquirers.
You will indemnify, defend and hold us and our processors and partners harmless (and our and their respective employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys' fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a third party person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our policies or the Network Rules; (b) your wrongful or improper use of the Service; (c) any transaction submitted by you through the Service (including without limitation the accuracy of any product information that you provide or any claim or dispute arising out of products or services offered or sold by you); (d) any Fees, Fines, Disputes, Refunds, Reversals, Returns, or any other liability we incur that results from your use of the Payment Processing Services, (e) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (f) your violation of any law, rule or regulation of the United States or any other country; (g) any other party's access and/or use of the Service with your unique username, password or other appropriate security code.
16. Representations and Warranties
By accepting the terms of this Agreement, you represent and warrant that: (a) you are eligible to register and use the Services and have the authority to execute and perform the obligations required by this Agreement; (b) any information you provide us about your business, products, or services is accurate and complete; (c) any Charges represent a transaction for permitted products, services, or donations, and any related information accurately describes the transaction; (d) you will fulfill all of your obligations to your Purchasers and will resolve all Disputes with them; (e) you will comply with all Laws applicable to your business and use of the Services; (f) your employees, contractors and agents will at all times act consistently with the terms of this Agreement; (g) you will not use Payment Processing Services for personal, family or household purposes, for peer-to-peer money transmission, or (except in the normal course of business) intercompany Transactions; and (h) you will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner that interferes with the normal operation of the Services.
17. Disclaimer of Warranties by AffiniPay
WE PROVIDE THE SERVICES AND AFFINIPAY IP “AS IS” AND “AS AVAILABLE”, WITHOUT ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY OTHER TYPE OF WARRANTY OR GUARANTEE. NO DATA, DOCUMENTATION OR ANY OTHER INFORMATION PROVIDED BY AFFINIPAY OR OBTAINED BY YOU FROM OR THROUGH THE SERVICES –WHETHER ORAL OR WRITTEN – CREATES OR IMPLIES ANY WARRANTY FROM AFFINIPAY TO YOU.
AFFINIPAY DISCLAIMS ANY KNOWLEDGE OF, AND DOES NOT GUARANTEE: (a) THE ACCURACY, RELIABILITY, OR CORRECTNESS OF ANY DATA PROVIDED THROUGH THE SERVICES; (b) THAT THE SERVICES WILL MEET YOUR SPECIFIC BUSINESS NEEDS OR REQUIREMENTS; (c) THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; (d) THAT AFFINIPAY WILL CORRECT ANY DEFECTS OR ERRORS IN THE SERVICE, API, DOCUMENTATION, OR DATA; OR (e) THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL CODE. USE OF DATA YOU ACCESS OR DOWNLOAD THROUGH THE SERVICES IS DONE AT YOUR OWN RISK – YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM SUCH ACCESS OR DOWNLOAD. YOU UNDERSTAND THAT AFFINIPAY MAKES NO GUARANTEES TO YOU REGARDING TRANSACTION PROCESSING TIMES OR PAYOUT SCHEDULES.
NOTHING IN THIS AGREEMENT OPERATES TO EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF ANY IMPLIED CONDITION, WARRANTY OR GUARANTEE, OR THE EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER LAW WHERE TO DO SO WOULD: (A) CONTRAVENE THAT LAW; OR (B) CAUSE ANY TERM OF THIS AGREEMENT TO BE VOID.
18. Limitation of Liabilities and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AFFINIPAY, ITS PROCESSORS, SUPPLIERS, LICENSORS, NETWORKS, ANY NETWORK, ANY BANK OR THE BANK (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL AFFINIPAY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. IN NO EVENT WILL AFFINIPAY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AFFINIPAY, ITS PROCESSORS, THE NETWORKS, ANY NETWORK, ANY BANK AND THE BANK (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, OR ANY DELAY IN PERFORMING OUR OBLIGATIONS UNDER THIS AGREEMENT, REGARDLESS OF WHETHER THE FAILURE OR DELAY IS CAUSED BY AN EVENT OR CONDITION BEYOND OUR CONTROL; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL AFFINIPAY, ITS PROCESSORS, AGENTS, SUPPLIERS, LICENSORS, NETWORKS, ANY NETWORK, ANY BANK ,OR THE BANK (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF AFFINIPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
19. Disputes; Arbitration
If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact AffiniPay support with any dispute. If we cannot resolve your concerns, we agree to an informal dispute resolution process requiring individual arbitration.
You and AffiniPay agree to arbitrate all “Disputes,” defined as any claim, controversy or dispute (whether involving contract, tort, equitable, statutory or any other legal theory) between you and AffiniPay, including but not limited to any claims relating in any way to this Agreement (including its breach, termination and interpretation), any other aspect of our relationship, AffiniPay advertising, and any use of AffiniPay software or services. “Disputes” also include any claims that arose before this Agreement and that may arise after termination of this Agreement. Notwithstanding the foregoing, you or AffiniPay may choose to pursue a claim in court and not by arbitration if you fail to timely pay amounts due. AffiniPay may assign your account for collection, and the collection agency may pursue in any court of competent jurisdiction any claim that is strictly limited to the collection of past due amounts and any interest or cost of collection permitted by law or this Agreement.
ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON A INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST AFFINIPAY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) (“AAA”) according to this provision and the applicable arbitration rules. A form for initiating arbitration proceedings is available on the AAA's website at www.adr.org. Consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in their local small-claims court rather than through arbitration. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. If you are a consumer bringing a claim relating to personal, household, or family use, any arbitration hearing will occur within the county or parish where you reside or at another mutually agreed location. Otherwise, any arbitration hearing will occur in Austin, Texas. You or AffiniPay may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and AffiniPay subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you or by AffiniPay, unless the arbitrator requires otherwise. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules, but if you are unable to pay any of them, AffiniPay will pay them for you. In addition, AffiniPay will reimburse all such fees and costs for claims totaling less than $75,000 unless the arbitrator determines the claims are frivolous. Likewise, AffiniPay will not seek its attorneys' fees or costs in arbitration unless the arbitrator determines your claims or defenses are frivolous. In the event the arbitrator determines the claims you assert in the arbitration are frivolous, you agree to reimburse AffiiniPay for all fees associated with the arbitration paid by AffiniPay on your behalf that you otherwise would be obligated to pay under the AAA's rules. For purposes of this arbitration provision, references to you and AffiniPay also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Service. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in Travis County, Texas, or federal court for the Western District of Texas.
20. Governing Law
This Agreement and any Dispute will be governed by Texas law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within Texas, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction.
21. Limitation on Time to Initiate a Dispute.
Unless otherwise required by Law, you must commence any action or proceeding relating to any Dispute within one year after the occurrence of the event giving rise to such Dispute.
You may not assign this Agreement, any rights or licenses granted in this Agreement, or operation of your Account to others without our prior written consent, which may be granted or withheld at our sole discretion. If you wish to make such an assignment, please contact us. If we consent to the assignment, the assignee must agree to assume all of your rights and obligations owed by you related to the assignment, and must agree to comply with the terms of this Agreement. AffiniPay may assign this Agreement without your consent or any other restriction. If we make an assignment, we will provide reasonable notice to you.
23. No Agency; Third Party Services
Except as expressly stated in this Agreement, nothing in this Agreement serves to establish a partnership, joint venture, or other agency relationship between you and us, or with any Network. Each party to this Agreement, and each Network, is an independent contractor. Unless a Network expressly agrees, neither you nor we have the ability to bind a Network to any contract or obligation, and neither party will represent that you or we have such an ability.
24. Amendment of Agreement
AffiniPay may modify or amend the terms of this Agreement at any time, and may change, delete, discontinue, or impose conditions on use of the Services by posting such changes on the Website or any other website we maintain or own. We may notify you of any changes on the Website, via email, or through other means. Your use of the Services or API after we publish any such changes on our website, constitutes your acceptance of the terms of the modified Agreement. You can access a copy of the current terms of this Agreement on our website at any time.
25. Other Provisions
This Agreement and all policies and procedures that are incorporated by reference constitute the entire agreement between you and AffiniPay for provision and use of the Services. Except where expressly stated otherwise in a writing executed between you and AffiniPay, this Agreement will prevail over any conflicting policy or agreement for the provision or use of the Services. This Agreement sets forth your exclusive remedies with respect to the Services. If any provision or portion of this Agreement is held to be invalid or unenforceable under Law, then it will be reformed and interpreted to accomplish the objectives of such provision to the greatest extent possible, and all remaining provisions will continue in full force and effect.
The rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement, along with all other rights and remedies available to it at Law, in equity or under the Network Rules. No provision of this Agreement will be construed against any party on the basis of that party being the drafter. Unless expressly stated otherwise, the use of the term “including” or “such as” is not to be interpreted as limiting the generality of the text preceding the term. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of that party’s rights to subsequently enforce the provision.
Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement shall survive and remain in effect in accordance with its terms upon the termination of this Agreement.
By signing below, you acknowledge that you have reviewed and agree to be bound to this Agreement and comply with all terms set forth therein. You hereby represents and warrants that (i) all information provided in to AffiniPay with respect to Customer’s business is true and complete and properly reflects the business, financial condition, and principal partners, owners, or officers of Customer; and (ii) the persons signing this Agreement are duly authorized to bind Customer to all provisions of the Agreement.
Acknowledged and Agreed:
(Printed Name of Signatory)
“AffiniPay Data” means details of the transactions that are transmitted through the AffiniPay systems and infrastructure, information used in fraud detection and analysis, aggregated or anonymized information generated from Data, and any other information created by or originating from AffiniPay or the Services.
“Bank” means a financial institution that is authorized by a Network to enable the use of a Payment Method by accepting Charges from Customers on behalf of the Networks, and routing these Charges to the Networks, including any entity acting on behalf of, or sponsored by, such a financial institution for the purposes of routing such Charges to the Networks.
“Charge” means a credit or debit instruction to capture funds from an account that a Purchaser maintains with a bank or other financial institution in connection with a Transaction.
“Data” used without a modifier means all Personal Data, User Data, Payment Data, and AffiniPay Data.
“Dispute” means an instruction initiated by a Purchaser for the return of funds for an existing Charge (including a chargeback or dispute on a payment card network; and disputes on the Automated Clearinghouse (ACH) network).
“Fine” means any fines, levies, or other charges imposed by us, a Network or a Bank, caused by your violation of Laws or this Agreement, or as permitted by the applicable Network Rules.
“Network” means the provider of a Payment Method, such as Visa, Mastercard, Discover, and American Express.
“Network Rules” means the guidelines, bylaws, rules, and regulations imposed by the Networks and Banks that operate Payment Methods supported by AffiniPay (including the Network Rules for the Visa, Mastercard, Discover and American Express networks; and the NACHA operating rules that apply to the ACH network).
“Payment Account Details” means the Payment Method account details for a Purchaser, and includes, with respect to credit and debit cards, the cardholder’s account number, card expiration date, and CVV2.
“Payment Data” means Payment Account Details, information communicated to or by Network or Bank, financial information specifically regulated by Laws and Network Rules, and any other information used with the Payment Processing Services to complete a transaction.
“Payment Method” means a type of payment method that AffiniPay accepts as part of the Payment Processing Services, such as credit card, debit card, and ACH.
“Payment Processing Services” are Services that you may use to accept payments from your Purchasers for transactions, perform other financial transactions, manage subscriptions, and perform transaction reporting.
“Personal Data” means information that identifies a specific living person and is transmitted to or accessible through the Services.
“Refund” means an instruction initiated by you to return funds to a Purchaser for an existing Charge.
“Return” means an instruction initiated by you, a Purchaser, a Network or a Bank to return funds unrelated to an existing Charge.
“Reversal” means an instruction initiated by a Network, a Bank or us to return funds for an existing Charge. Reversals may result from (i) invalidation of a charge by a Network or a Bank; (ii) funds settled to you in error or without authorization; and (iii) submission of a Charge in violation of the applicable Network Rules, or where submission of the Charge or your use of Payment Processing Services violates this Agreement.
“Security Standards” means, collectively, all rules, regulations, standards or guidelines adopted or required by the Networks or the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Payment Data, including but not limited to PCI DSS, Visa’s Cardholder Information Security Program (“CISP”), Discover’s Information Security & Compliance Program, American Express’s Data Security Operating Policy, MasterCard’s Site Data Protection Program (“SDP”), Visa’s Payment Application Best Practices (“PABP”), the Payment Card Industry’s Payment Application Data Security Standard (“PA DSS”), and American Express’s American Express Data Security Requirements (“DSR”) in each case as they may be amended from time to time.
“Settlement Account” means, collectively, the bank or other financial institution accounts that you designate as the accounts into which you transactions should be settled. In the event that you designate a Trust Account as a Settlement Account, you must have at least one Settlement Account that is not designated as a Trust Account.
“Trust Account” means a Settlement Account that both (i) is held in trust by a Customer who is a law firm for the benefit of a client, such as an attorney escrow, retainer or similar account, and (ii) is designated as a “Trust Account” by Customer in the manner proscribed by AffiniPay in the User Guide.
“User Data” means information that describes your business and its operations, your products or services, and orders placed by Purchasers.
See your account information or Contact AffiniPay
Wells Fargo Financial Services Terms
If you use the Payment Processing Services, as that term is defined in the AffiniPay Terms of Service (the “Agreement”), you are also required to accept these Wells Fargo Financial Services Terms. Any terms used but not defined in these Wells Fargo Financial Services Terms will have the meaning provided in the Agreement.
These Wells Fargo Financial Services Terms constitute a legal agreement between you, AffiniPay, and Wells Fargo Bank, N.A. and Wells Fargo Merchant Services, L.L.C. (collectively, “Wells Fargo”), which is formed by Wells Fargo’s and AffiniPay’s offer of these terms to you, your acceptance of these terms, and Wells Fargo’s and AffiniPay’s subsequent provision of services to you in accordance with these terms. In order to use the Payment Processing Services provided through your Agreement with AffiniPay, you understand that AffiniPay or Wells Fargo may enforce any provisions of the Agreement that relate to your use of Payment Processing Services provided in conjunction with Wells Fargo. AffiniPay or Wells Fargo may also terminate these Wells Fargo Financial Services Terms at any time, which may limit or terminate your ability to use Payment Processing Services.
You must accept all of the terms and conditions of these Wells Fargo Financial Services Terms. If you do not accept them, you may not use the Payment Processing Services.
Card Network Compliance and Disclosure
a. Important Member Bank Disclosures. Wells Fargo discloses that:
- it is the only entity approved to extend acceptance of Visa, Mastercard and Discover products directly to you under these Wells Fargo Financial Services Terms;
- it must be a principal (signer) to these Wells Fargo Financial Services Terms;
- it is responsible for educating you on pertinent Visa, Mastercard and Discover rules with which you must comply, but this information may be provided to you by AffiniPay;
- it is responsible for and must provide settlement funds to you; and
- it is responsible for all funds held in reserve that are derived from settlement prior to funding you.
b. Your Responsibilities: You agree that, at all times throughout the term of these Wells Fargo Financial Services Terms, you will:
- comply with cardholder data security and storage requirements;
- maintain fraud and chargebacks rates acceptable under the Network Rules;
- review and understand the terms of these Wells Fargo Financial Services Terms; and
- comply with the Network Rules
You may contact Wells Fargo by mailing 1655 Grant Street, 3rd Floor, Concord, CA 94520 or by calling 1-800-451-5817.
1. Purpose of these Wells Fargo Financial Services Terms
Because you may be the recipient of a credit or debit card funded payment through the AffiniPay Services, the Networks require that you enter into a direct contractual relationship with a bank that is a member of the Networks. However, by using Payment Processing Services you are not establishing a depository or other account with Wells Fargo.
Wells Fargo is not responsible for the provision of any Services by AffiniPay or your use of the Services for your business. Wells Fargo is also not responsible for providing customer service to you to resolve any issues you may have related to your use of the Services; however, you may contact Wells Fargo using the contact details set out above in the event that you are unable to resolve any complaints directly with AffiniPay. You are solely responsible for providing support to your Purchasers for all issues related to your products and services.
2. Compliance with Network Rules
Where you use the Payment Processing Services to accept Charges from payment cards, you will comply with the Network Rules and limitations on use identified in Agreement, including the Network Rules applicable to acceptance of Mastercard, Discover and Visa branded payment cards. These include guidelines, monitoring programs, and activity reporting (including excessive credits, chargebacks, or deposit). Under the Network Rules, certain activity may subject you to chargebacks, fees, fines, settlement delays, withholdings, audits of your processing activity, or termination of these Wells Fargo Financial Services Terms. Without limiting the foregoing, you specifically agree to:
a. Only submit transactions authorized by the cardholder;
b. Only accept payment for the sale of products or services, and receipt of bona fide donations, and not for any Prohibited Business;
c. Submit a transaction for the full amount of owed by the Purchaser for the transaction except where you and the Purchaser agree on a partial shipment (such as receiving a portion of an order), or where the transaction qualifies for delayed delivery or special order deposits (such as paying for a deposit on a custom-built product);
d. Not establish minimum or maximum amounts (except as permitted by the Network Rules), or condition Charges for use of payment cards, and not discourage the use of one payment card brand over another;
e. Not impose surcharges or taxes (except where permitted by Law) and, where so done, you will only collect such amounts as part of the submitted Charge;
f. Use Networks’ logos or marks in a manner permitted by the Network Rules;
g. Prohibit use of payment cards for disbursement of cash (except as permitted by the Network Rules);
h. Comply with the security obligations identified in the Agreement, including compliance with PCI-DSS and only using cardholder data as permitted, and will certify such compliance upon request, and not permit or promote fraudulent use of payment cards or cardholder data;
i. Make clear to Purchasers that they are transacting with you prior to, during, and after the transaction, including providing clear statement descriptors;
j. Use all reasonable methods to resolve disputes with your Purchasers, including those resulting a chargeback, and not attempt to recharge a customer for the transaction unless authorized by the Customer; and
k. Provide clear refund and exchange language that is consistent with Laws and the Network Rules, including, but not limited to, disclosing refund policies at the point of sale and refraining from implementing refund policies that differ among Payment Methods.
3. Authorization and Handling of Funds
You authorize AffiniPay to initiate holds, receipts, and disbursements of funds on your behalf upon settlement of Charges from the Networks. You also authorize AffiniPay to instruct Wells Fargo on how and when such Transfers should be made. Settlement funds will be held in comingled accounts pending disbursement of the funds to you in accordance with the terms of the Agreement, including these Wells Fargo Financial Services Terms. You agree that you are not entitled to any interest or other compensation associated with the settlement funds held by Wells Fargo pending prior to distribution to the account you designated in your AffiniPay Account, that you have no right to direct Wells Fargo to distribute settlement funds, and that you may not assign any interest in any funds held at Wells Fargo. Wells Fargo may periodically make information available to you through AffiniPay regarding anticipated funds settlement from the other Financial Services Providers (such as the payment card networks). This settlement information does not constitute a deposit or other obligation by AffiniPay or Wells Fargo to you. Any settlement information communicated to you is for reporting and informational purposes only. You are not entitled to and have no ownership or other rights in such funds until they are credited to the account you identified to AffiniPay. Any authorizations set forth in these Wells Fargo Financial Services Terms will remain in full force and effect until your Account is closed or terminated.
4. Sharing of Data
a. You authorize AffiniPay to provide any Data, including User Data or Payment Data, to Wells Fargo to (i) provide the services described in these Wells Fargo Financial Services Terms to you, (ii) comply with its legal and regulatory obligations, and (iii) perform underwriting and risk review, including verification that you are legally permitted to transact and receive funds. Where required to comply with our legal, payment network, or regulatory obligations, Wells Fargo may provide any Data to law enforcement, payment networks or regulators (as the case may be). You further authorize AffiniPay to provide Data to the Networks in accordance with the Network Rules, and permit the Networks to use such Data in accordance with the Network Rules, including for promotional, analytical, and other business purposes.
b. You agree that you will not (i) use the Payment Data for any purpose other than to support Payment Processing Services, (ii) use the Payment Data for any purpose that you know or should know to be fraudulent or in violation of any Network Rules, (iii) sell, purchase, provide or exchange in any manner or disclose Payment Data to anyone other than Wells Fargo, American Express, Visa, Discover or Mastercard (as applicable); or in response to a government request. Further, you agree that you will at all times comply with the Payment Card Industry Standards (“PCI Standards” including, without limitation, PCI-DSS) with respect to Payment Data and will indemnify and hold Wells Fargo harmless for any violation or breach of the PCI Standards, including but not limited to, any fines, fees or assessments by any Networks imposed upon you, Wells Fargo, or AffiniPay.
5. Term and Termination
These Wells Fargo Financial Services Terms shall have the same effective date as the Agreement and shall continue so long as you use the Payment Processing Services. These Wells Fargo Financial Services Terms will terminate automatically upon termination of the Agreement, except for those terms which are intended to survive termination. In addition, the Payment Processing Services and/or these Wells Fargo Financial Services Terms may be terminated at any time by Wells Fargo upon notice to you.
6. Representations and Warranties
In addition to the representations and warranties made in the Agreement, you represent and warrant to Wells Fargo and AffiniPay that you (a) are legally able to enter into these Wells Fargo Financial Services Terms, (b) you will not use the Payment Processing Services, directly or indirectly, for any fraudulent or illegal undertaking; and (c) you will only use the Payment Processing Services in a manner consistent with the Agreement, including these Wells Fargo Financial Services Terms, the Documentation, and the Network Rules.
Notwithstanding the foregoing or anything to the contrary in the Agreement, you agree to defend, indemnify, and hold harmless Wells Fargo, and their respective employees, directors, agents, and affiliates (collectively “Wells Fargo Entities”) from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to (a) your breach of any provision of the Agreement or these Wells Fargo Financial Services Terms; (b) your use of the Payment Processing Services; (c) your obligations to pay fees or fines to AffiniPay, your Purchasers, Financial Services Providers, or third parties; (d) negligence or willful misconduct of your employees, contractors, or agents; and (e) all third-party indemnity obligations Wells Fargo incurs as a direct or indirect result of your acts or omissions (including indemnification of any payment card network, card issuer, or intermediary bank).
8. Disclaimer of Warranties
ANY SERVICES DESCRIBED IN THESE WELLS FARGO FINANCIAL SERVICES TERMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ALL DISCLAIMERS OF WARRANTIES PROVIDED IN THE AGREEMENT WILL APPLY EQUALLY TO WELLS FARGO ENTITIES AS THEY DO TO AFFINIPAY. WELLS FARGO ENTITIES (a) ARE NOT RESPONSIBLE FOR YOUR OR AFFINIPAY’S FAILURE TO PERFORM OBLIGATIONS UNDER THE AGREEMENT AND (b) DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY YOU, AFFINIPAY, OR ANY THIRD PARTY.
9. Limitations on Liability
In no event will Wells Fargo Entities be liable for any lost profits, lost revenue, lost business opportunity, loss of data, or any indirect, punitive, incidental, special, consequential, or exemplary damages arising out of, in connection with, or relating to the Agreement, including these Wells Fargo Financial Services Terms, or the services described in either, including without limitation the use of, inability to use, or unavailability of services provided by AffiniPay. Under no circumstances will any of the Wells Fargo Entities be responsible for any damage, loss or injury resulting from hacking, tampering, or other unauthorized access or use of the service or your Account or the Data contained therein, or your failure to use or implement security, controls, or processes that are appropriate for your business.
Wells Fargo Entities assume no liability or responsibility for any (a) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of the Services; (b) any misuse of Services or Data; (c) any interruption or cessation of transmission to or from the Services; (d) any software bugs, viruses, or other harmful code that may be transmitted to or through the Services; (e) any errors, inaccuracies, or omissions in services or Data, or any loss or damage resulting therefrom, regardless of the manner of transmission; or (f) defamatory, offensive, or illegal conduct of any third party.
Without limiting anything to the contrary, the Wells Fargo Entities’ cumulative liability to you is limited to direct damages and in all events will not exceed in the aggregate amounts actually received by Wells Fargo (including any fees paid to Wells Fargo) for providing services to you during the three (3) month period immediately preceding the event that gives rise to the claim for liability.
This limitation of liability section applies regardless of the legal theory that the claim is based, including without limitation contract, tort (including negligence), strict liability, or any other basis. The limitations apply even if AffiniPay or Wells Fargo has been advised of the possibility of such damage.
The foregoing will apply to the fullest extent permitted by law in the applicable jurisdiction.
10. United States Only Services
You may not use any services offered by Wells Fargo from, or on behalf of persons or entities (a) in a country embargoed by the United States or (b) blocked or denied by the United States government. You further acknowledge and agree that you will not use your merchant account and/or the Services for illegal transactions, for example, those prohibited by the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq., as may be amended from time to time, or those involving any Person listed on the U.S. Department of Treasury, Office of Foreign Assets Control, Specially Designated Nationals and Blocked Persons List (available at www.treas.gov/ofac) or the U.S. Department of State’s Terrorist Exclusion List (available at www.state.gov) or the processing and acceptance of transactions in certain jurisdictions pursuant to 31 CFR Part 500 et seq. and other laws enforced by the Office of Foreign Assets Control (“OFAC”) or in connection with illegal activity of any kind. Unless otherwise explicitly stated, Services are solely for use by individuals, companies, or other entities located (as defined under applicable law and Network rules) in the United States.
11. Dispute Resolution
All disputes under these Wells Fargo Financial Services Terms are subject to the applicable provisions of the Agreement.
The failure of Wells Fargo to assert any of its rights under these Wells Fargo Financial Services Terms, shall not be deemed to constitute a waiver by Wells Fargo of its rights to enforce each and every provision of these Wells Fargo Financial Services Terms in accordance with its terms.
13. Bank Disclosure
Merchant Services Provider Contact Information
Name: AffiniPay, LLC (d/b/a LawPay, CPACharge, DesignPay, and MedPay)
Address: 3700 N. Capital of Texas Hwy, Suite 300, Austin, TX 78746
Phone Number: 855.656.4684
Member Bank Information: Wells Fargo Bank
The Bank’s mailing address is Wells Fargo Bank, N.A., PO Box 6079, Concord, CA 94524 and its phone number is (800) 451-5817.
Important Member Bank Responsibilities
- The Bank is the only entity approved to extend acceptance of Card Organization products directly to a Merchant.
- The Bank must be a principal (signer) to the Merchant Agreement.
- The Bank is responsible for educating Merchants on pertinent Visa and MasterCard Rules with which Merchants must comply; but this information may be provided to you by Processor.
- The Bank is responsible for and must provide settlement funds to the Merchant.
- The Bank is responsible for all funds held in reserve.
Important Merchant Responsibilities
- Ensure compliance with cardholder data security and storage requirements.
- Maintain fraud and chargebacks below Card Organization thresholds.
- Review and understand the terms of the Merchant Agreement.
- Comply with Card Organization rules.
- Retain a signed copy of this Disclosure Page.
- You may download “Visa Regulations” from Visa’s website at: https://usa.visa.com/support/small-business/regulations-fees.html#3
- You may download “MasterCard Rules” from MasterCard’s website at: https://www.mastercard.com/us/merchant/support/rules.html
The responsibilities above do not replace the terms of the Merchant Agreement and are provided to ensure the Merchant understands some important obligations of each party and that the Bank is the ultimate authority should the Merchant experience any problems.
Form of Guarantee
This Personal Guarantee is delivered and executed by the undersigned in connection with that certain AffiniPay Services Agreement (the “Agreement”) between customer of AffiniPay names below as “Customer” (“Customer”) and AffiniPay, LLC (“AffiniPay”). Capitalized terms used but not defined in this Personal Guarantee shall have the meanings set forth in the Agreement.
In exchange for AffiniPay’s acceptance of the Agreement, the undersigned unconditionally and irrevocably guarantees the full payment and performance of the obligations of Customer under the Agreement, as it now exist or as modified from time to time, whether before or after termination or expiration of the Agreement and whether or not the Customer has received notice of any amendment of the Agreement. The undersigned waives notice of default by Customer and agrees to indemnify the AffiniPay for any and all amounts due from Customer under the Agreement. AffiniPay shall not be required to first proceed against Customer to enforce any remedy before proceeding against the undersigned. This is a continuing personal guaranty and shall not be discharged or affected for any reason. The undersigned understands that this is a Personal Guaranty of payment and not of collection and that AffiniPay is relying upon this Personal Guaranty in entering into the Agreement.
Acknowledged and Agreed: