THE SERVICE
1. Our Role. The SMARTPAYMENTS service (“SMARTPAYMENTS Payments” or the “Payments Services”) is
a: (i) merchant/payment account boarding; (ii) merchant/payment underwriting; and, (iii)
merchant/payment data transmission service that helps you integrate with a payment processor
(the “Processor”), as described more fully in this Agreement. You hereby appoint us as your
agent to deliver information and instructions on your behalf to the Processor.
Under these Terms SMARTPAYMENTS provides you with its payment assistance services, marketing,
and other services (collectively, the “SMARTPAYMENTS Services”).
Neither SMARTPAYMENTS nor its subsidiaries shall be considered as a bank, payment institution,
or money services business, but are instead, respectively, a supplier of the SMARTPAYMENTS
Services supplied under the SMARTPAYMENTS Terms and under this Agreement.
2. The Processor. The Processor is a bank, payment institution, or money services business
SMARTPAYMENTS has partnership agreement with, which is a technical services provider and may
offer the services as an agent of one or more financial institutions (each, a “Financial
Services Provider”). The processing and settlement of Transactions (as defined below) (“Payment
Processing”) is carried out by the Processor and any of the Financial Services Providers under a
separate Agreement. By accepting these Terms, you are also accepting and agreeing to be bound by
the Processor Terms, which is the legal agreement between you and the Processor.
SMARTPAYMENTS is not a party to the Processor Terms and is not liable to you in respect thereof.
By accepting this Agreement and the Processor Terms you are agreeing to the creation of an
account with the Processor for Payment Processing (the “Processor Account”). We reserve the
right to change the Processor, subject to the terms of our agreement with the Processor. In the
event of any inconsistency between this Agreement and the Processor Terms, this Agreement shall
prevail, except in the event of any inconsistency between this Agreement and the Processor Terms
concerning Payment Processing or the Processor Account, in which case the Processor Terms shall
prevail.
The Processor’s role is to accept and process credit card, debit card and other types of
payments (collectively “Cards”) with respect to sales of your products and services through
internet-based transactions (“Card Not Present Transactions” or “CNP Transactions”). If
applicable, POS Equipment permits transmission of data to the Processor from in-person,
point-of-sale transactions (“Card Present Transactions” or “CP Transactions”), as well as
manually entered transactions (“Keyed Transactions”). CNP Transactions, CP Transactions and
Keyed Transactions shall be referred to herein, collectively, as “Transactions”.
3. Your Role. To utilize the Services, you must be a legally incorporated business.
4. The Payments Services. SMARTPAYMENTS hereby grants you a non-exclusive, non-transferable,
non-sublicensable, limited, revocable right to use the Payments Services (the “License”)
provided by the Processor. The License shall be for the term of this Agreement only. Neither the
License nor any other provision hereof shall grant any rights in the Payments Services or other
intellectual property rights except the limited License of use set out above.
You shall not: (i) permit any third party to access the Payments Services; (ii) create derivate
works based on the Payments Services; (iii) copy, frame or mirror any part of the content of the
Payments Services, other than copying or framing for your internal business purposes; (iv)
reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code or
trade secrets for any of the Payments Services; or, (v) access the Payments Services in order to
build a competitive product or service.
It is your responsibility to obtain your customers’ consent to be billed for each Transaction
or, as the case may be, on a recurring basis, in compliance with applicable legal requirements
of various Payment Networks.
5. Web POS Equipment. If applicable, you may elect to purchase Web POS Equipment from
SMARTPAYMENTS that will allow you to accept CP Transactions and Keyed Transactions.
6. Payment Methods. The Payments Services support most Payment Network Cards, including credit,
debit, pre-paid, or gift cards. You assume sole and exclusive responsibility for the use of the
Payments Services. You also assume sole and exclusive responsibility for Transactions under the
Processor Terms. You are solely responsible for verifying the identity of customers and of the
eligibility of a presented Card used to purchase your products and services, and SMARTPAYMENTS
does not guarantee or assume any liability for Transactions authorized and completed that may
later be reversed or charged back. You are solely responsible for all reversed or charged back
transactions regardless of the reason for, or timing of the reversal or chargeback.
SMARTPAYMENTS or the Processor may add or remove one or more types of Payment Networks or Cards,
in their sole discretion, at any time, without prior notice to you.
7. Customer Service. SMARTPAYMENTS will use its commercially reasonable efforts to provide you
with customer support to help resolve issues relating to the Payments Services. The Processor
retains sole and exclusive responsibility for Payment Processing of Transactions, including the
settlement of funds, but SMARTPAYMENTS will provide reasonable assistance in liaising between
you and the Processor concerning the Payment Processing services. You assume sole and exclusive
responsibility for providing customer service or support to your customers for any and all
issues related to your products and services, including, but not limited to, issues arising from
the processing of Cards through the Payments Services.
8. Taxes. You have sole and exclusive responsibility to determine what, if any, taxes apply to
the sale of your goods and services and/or the payments you receive in connection with your use
of the Payments Services (“Taxes”). It is solely your responsibility to assess, collect, report,
or remit the correct Taxes to the proper tax authority, whether in customers’ jurisdictions,
your jurisdiction or elsewhere. We are not obligated to, nor will we, determine whether Taxes
apply, or calculate, collect, report, or remit any Taxes to any tax authority, arising from any
Transaction. SMARTPAYMENTS and/or Processor retains the right, but not the obligation, at its
sole discretion, to complete and file tax or related reports with tax authorities regarding
Transactions in those jurisdictions where SMARTPAYMENTS and/or Processor deems such reporting
necessary. You hereby indemnify and hold SMARTPAYMENTS and/or Processor harmless from and
against any and all liability related to Taxes and filings made by SMARTPAYMENTS and/or
Processor in respect thereof. You agree that we may send you any tax-related information
electronically.
9. Your Customers. If prohibited by law, you will not impose any fee or surcharge on a customer
that seeks to use an eligible Card. You will provide an informational slip or receipt to your
customer at the conclusion of the Transaction that includes all information required under
Payment Network Rules and applicable law.
10. Security. We maintain commercially reasonable administrative, technical and physical
procedures to protect all the personal information regarding you and your customers that is
stored in our servers from unauthorized access, accidental loss, or modification. SMARTPAYMENTS
cannot, however, guarantee that unauthorized third parties will never be able to defeat those
measures or use such personal information for improper purposes.
11. Data Security. You assume full responsibility for the security of data on your website or
otherwise in your possession or control. You agree to comply with all applicable laws and rules
in connection with your collection, security, and dissemination of any personal, financial,
Card, or Transaction information (collectively, “Data”, and as pertains to your customers,
“Cardholder Data”). You agree that at all times you shall be compliant with applicable Payment
Card Industry Data Security Standards (“PCI-DSS”) and, as applicable, the Payment Application
Data Security Standards (“PA-DSS”). You agree to promptly provide SMARTPAYMENTS and/or Processor
with documentation evidencing your compliance with PCI-DSS and/or PA-DSS upon request. You also
agree that you will use only PCI-DSS and PA-DSS compliant service providers in connection with
the storage or transmission of Card information, including a cardholder’s account number,
expiration date, and CVV2. You must not store CVV2 data at any time. Information on PCI-DSS can
be found on the PCI Council’s website. It is your responsibility to comply with these standards
and all the Payment Network Rules.
12. Audit Right. If SMARTPAYMENTS believes that a security breach, personal data breach, or
other compromise of data may have occurred, SMARTPAYMENTS may require you to have a third-party
auditor that is approved by SMARTPAYMENTS conduct a security audit of your systems and
facilities and issue a report to be provided to SMARTPAYMENTS and, at SMARTPAYMENTS’s
discretion, to the Processor, its Financial Services Provider, Payment Networks, and law
enforcement, at your sole cost and expense.
13. Privacy. Your privacy and the protection of your data are very important to us. You
acknowledge that you have received, read in full, and agree with the terms of our Privacy Policy
and the Processor’s Privacy Policy. Our Privacy Policy is hereby incorporated into this
Agreement. SMARTPAYMENTS’s Privacy Policy and the Processor’s Privacy Policy contain important
information about the collection, use, retention, and disclosure of personal information, as
well as other important matters, and explains how and for what purposes we and the Processor
collect, use, retain, disclose and safeguard the information you provide to us. You agree that
SMARTPAYMENTS’s Privacy Policy and the Processor’s Privacy Policy may be modified at
SMARTPAYMENTS’s or the Processor’s option, if necessary, and you will check each Privacy Policy
on a regular basis. Additionally, you agree that SMARTPAYMENTS’s collection, use, retention, and
disclosure of personal information is subject to our Privacy Policy.
We will at all times comply with the provisions of applicable data protection law, including the
EU General Data Protection Regulation (“GDPR”), as applicable. If we process any of your
personal data when performing our obligations under this Agreement, we will do so as a “data
controller”, as defined by the GDPR. If we process any Cardholder Data on your behalf, we and
you both agree that it is our intention that you shall be the “data controller” and we shall be
the “data processor” in relation to that data, as those terms are defined in the GDPR. We shall
process the personal data only in accordance with the terms of this Agreement and any lawful
instructions reasonably given by you to us from time to time. Additionally, you acknowledge that
the Processor and a fraud detection service, each independently serve as “data controllers” with
regards to any personal data that they may processes under this Agreement and that we are not
responsible for how they process such data.
We will notify you (within a reasonable time frame) if we receive a request from a person to
have access to, or to erase that person’s personal data, a complaint or request relating to your
obligations under applicable data protection legislation, or any other communication relating
directly to the processing of any personal data in connection with this Agreement. You
acknowledge that such requests may be subject to independent legal retention or confidentiality
requirements, as permitted by the GDPR.
We will provide you with reasonable co-operation and assistance in relation to any complaint or
request made in respect of any personal data processed by us on your behalf, including by
providing you with details of the complaint or request, helping you to comply with any data
subject access requests (within the relevant timescales set out in applicable data protection
legislation), and providing you with any personal data we hold in relation to a person making a
complaint or request (again, within a reasonable timescale).
You acknowledge that we are relying on you for direction as to the extent to which we are
entitled to use and process the personal data in the Cardholder Data that you provide us with.
Consequently, we will not be liable for any claim brought by a data subject arising from any
action or omission by us, to the extent that such action or omission resulted from your
instruction.
You consent to the exchange of your information between the account you have established at
Processor and the Payments Services established under this Agreement. SMARTPAYMENTS will
commingle such accounts and refers to them together in this Agreement as the “Payments Account”.
Where a data subject is located in the European Economic Area, that data subject’s personal data
will be processed by SMARTPAYMENTS, in accordance with our Privacy Policy. As part of providing
the Payments Services, this personal data may be transferred to other regions. Additionally, in
order to process, use, record, and disclose your personal information, information related to
your business, and Data, we or our agents may transfer such information to and receive it from
the Processor, its Financial Services Provider, or their respective agents and, in so doing, we
may transmit or possess it outside of your jurisdiction.
Additionally, in order to provide the Payments Services, we use a variety of third party
“sub-processors” that fall into many broad categories – for example, we use sub-processors to
help us: (i) protect you and SMARTPAYMENTS from potentially risky transactions, security
threats, or fraud; (ii) perform administrative tasks; (iii) deliver portions of the Payments
Services (e.g., third parties that work with us to actually process credit card payments or
conduct any shipping); (iv) develop and improve our products and the Payments Services; (v)
generate analytics or other information relating to the Payments Services; and, (vi) build our
technical infrastructure (e.g., using cloud storage providers or information security vendors).
By using the Payments Services, you consent to our use of sub-processors, which is described in
more detail in our Privacy Policy.
14. Privacy of Others. You represent to us that you are in compliance with all applicable
privacy laws and that you maintain a publicly accessible privacy policy that accurately
discloses how you collect, use, and disclose personal data, including through the Payments
Services. Additionally, you represent to us that you have obtained all necessary rights and
consents under applicable law to allow us and the Processor to collect, use, retain, and
disclose any Cardholder Data that you provide to, or authorise us to collect, including
information that we may collect directly from you of your customers via cookies or other means
and to use that data to provide the Payments Services (e.g., to process Transactions and to
screen for fraud or compliance purposes).
Further, you represent that we will not be in breach of any such laws by collecting, receiving,
using, and disclosing such information in connection with the Payments Services as described in
our Privacy Policy. As between the parties to this Agreement, you are solely responsible for
disclosing to your customers that we will collect and process their Cardholder Data in our
supply of the Payments Services to you, and that in so doing we may transmit or possess it
outside of your or their jurisdiction, and that it may be subject to disclosure as required by
applicable law.
If you receive information about others, including cardholders and other customers, through the
use of the Payments Services, you must keep such information confidential and only use it in
connection with the Payments Services or as otherwise permitted by the subject of such
information.
You may not disclose or distribute any such information to a third party or use any such
information for marketing purposes unless you receive the express consent of the subject thereof
to do so. You may not disclose Cardholder Data to any third party other than in connection with
processing a Transaction requested by your customer.
15. Restricted Use. You are required to obey all laws, rules, and regulations applicable to your
use of the Payments Services (e.g., including those governing financial services, consumer
protections, unfair competition, anti-discrimination, or false advertising). In addition to any
other requirements or restrictions set forth in this Agreement, you shall not: (i) utilize the
credit available on any Card to provide cash advances to cardholders; (ii) submit any
Transaction for processing that does not arise from your sale of goods or service to a customer;
(iii) act as a payment intermediary or aggregator or otherwise resell the Payments Services on
behalf of any third party; (iv) send what you believe to be potentially fraudulent
authorizations or fraudulent Transactions; or, (v) use the Payments Services or the Payment
Processing services in a manner that a Payment Network reasonably believes to be an abuse of the
Payment Network or a violation of the Payment Network Rules.
You further agree not to permit any third party to do any of the following: (i) access or
attempt to access our systems, programs, or data that are not made available for public use;
(ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute, in any way,
material from us; (iii) permit any third party to use and benefit from the Payments Services via
a rental, lease, timesharing, service bureau, or other arrangement; (iv) transfer any rights
granted to you under this Agreement; (v) work around any of the technical limitations of the
Payments Services, use any tool to enable features or functionalities that are otherwise
disabled in the Payments Services, or decompile, disassemble, or otherwise reverse engineer the
Payments Services, except to the extent that such restriction is expressly prohibited by law;
(vi) perform or attempt to perform any actions that would interfere with the proper working of
the Payments Services, prevent access to or use of the Payments Services by our other users, or
impose an unreasonable or disproportionately large load on our infrastructure; or, (vii)
otherwise use the Payments Services except as expressly allowed under this section.
16. Suspicion of Unauthorized or Illegal Use. We reserve the right to not provide the Payments
Services in respect of any Transaction you submit that we believe, in our sole discretion, is in
violation of this Agreement, any other SMARTPAYMENTS or Processor agreement, or exposes you,
SMARTPAYMENTS, the Processor, or any other third party to actual or potential risk or harm,
including, but not limited to, fraud and other criminal acts. You are hereby granting us
authorization to share information with law enforcement about you, your Transactions, or your
Payments Account.
17. Payment Network Rules. The Payment Networks have established guidelines, bylaws, rules, and
regulations in the form of the Payment Network Rules. You are required to comply with all
applicable Payment Network Rules. The Payment Networks may amend the Payment Network Rules at
any time and without notice to us or to you. Insofar as the terms of this Agreement and/or the
Processor Terms are inconsistent with the Payment Network Rules, the Payment Network Rules shall
prevail. We reserve the right to amend this Agreement at any time, without notice to you, as may
be necessary to comply with the Payment Network Rules.
18. Disclosures and Notices. You agree that SMARTPAYMENTS can provide disclosures and notices,
including tax forms, that we deem appropriate regarding the Payments Services to you. You also
agree that electronic disclosures and notices have the same meaning and effect as if we had
provided you with a paper copy. Such disclosures and notices shall be considered to be received
by you within twenty-four (24) hours of the time it is emailed to you, unless we receive notice
that the email was not delivered.
19. Automatic Reminders. We may use automated telephone dialing, text messaging systems, and
email to provide messages to you about your Payments Account. The telephone messages may be
played by a machine automatically when the telephone is answered, whether answered by you or
another party. These messages may also be recorded by your answering machine or voicemail. You
give us permission to call or send a text message to any telephone number that you have given us
and to play pre-recorded messages or send text messages with information about this Agreement or
your account over the phone. You agree that we will not be liable to you for any such calls or
electronic communications even if information is communicated to an unintended recipient. You
understand that when you receive such calls or electronic communications you may incur a charge
from the company that provides you with telecommunications, wireless and/or Internet services.
You agree that we have no liability for such charges. You agree to immediately notify us if you
change telephone numbers or are otherwise no longer the subscriber or customary user of a
telephone number or email address you have previously provided to us.
GETTING A PAYMENTS SERVICES ACCOUNT
20. Registration. The Payments Services are only made available to persons worldwide that
operate a business selling goods and services. You may not use the Payments Services for
non-commercial, personal, family, or household purposes. To use Payments Services for your
business, you are required to register for a Payments Account. When you register for a Payments
Account, we will collect information such as your name (if you are a sole proprietor), your
business or trade name, your address, email, phone number, business identification or
registration number, and certain other information that we require. We may also collect personal
information (including name, birthdate, and government-issued identification number) about your
beneficial owners or principals.
You may register as an individual (sole proprietor) or as a corporation or other legal entity.
If you register as a corporation or other legal entity, you must be authorized to act on behalf
of such entity, have the authority to bind the entity to this Agreement, and you must agree to
this Agreement on behalf of such entity. If you have so agreed, the term “Merchant”, “you” or
“your” will mean you, the natural person acting as a business, if you are a sole proprietor, or
if you have registered as a corporation or other legal entity, it will mean that entity. You
understand that by registering for a Payments Account, you are also registering for a Processor
Account under the Processor Terms and that you are simultaneously providing your information to
SMARTPAYMENTS for the purpose of opening a Payments Account, and to the Processor for the
purpose of establishing your Processor Account.
21. Company Descriptions and Site URL. As part of your registration, you must provide the name
under which you do business (which may be the business’ legal name or a “doing business name”)
and a billing descriptor. These two fields and your site URL may appear in your customers’
credit or debit card statements. To avoid customer confusion and Transaction disputes it is
important that you enter a description that clearly identifies your business. You hereby agree
to indemnify us from any costs, liabilities, losses, or expenses from disputes due to your
failure to do so.
22. Verification and Underwriting. To verify your identity, we may require additional
information, including your company registration number or business number, your tax number,
and, if applicable, your date of birth. We may also ask for additional information to help
verify your identity and assess your business risk, including, but not limited, to business
invoices, reseller authorization or distributor information, a driver’s license or other
government issued identification, or business license, for you or for any of the owners or
principals of your business. We may ask you for your financial statements. We may request your
permission to do a physical inspection at your place of business and to examine books and
records that pertain to your compliance with this Agreement. Your failure to comply with any of
these requests within five (5) days may result in suspension or termination of your Payments
Account. You authorize us to retrieve additional information about you from third parties and
other identification services. We reserve the right to hold funds in your Payments Account while
awaiting the information requested above. SMARTPAYMENTS may use your information to apply for
card merchant acquiring accounts on your behalf with certain Payment Networks.
After we have collected and verified all your information, we will review your account and
determine if you are eligible to use the Payments Services. We will notify you once your
Payments Account has been either approved or deemed ineligible for use of the Payments Services.
By accepting the terms of this Agreement, you are providing us with authorization to retrieve
information about you by using third parties, including credit bureaus and other information
providers. You acknowledge that such information retrieved may include your name, address
history, credit history, and other data about you. We may periodically update this information
to determine whether you continue to meet the eligibility requirements for a Payments Account.
You agree that SMARTPAYMENTS is permitted to contact and share information about you and your
application (including whether you are approved or declined), your Payments Account with
Processor. This includes sharing information: (i) about Transactions for regulatory or
compliance purposes; (ii) for use in connection with the management and maintenance of the
Payments Services; (iii) to create and update our and their customer records about you, and to
assist us and them in better serving you; and, (iv) to conduct our and their risk management
process.
23. Designated Country. In registering for a Payments Account, you are obliged to identify the
location from where you are operating the business that will use the Payments Services. By
registering for a Payments Account, you are confirming that you are either a legal resident of
the country you are duly established and, if necessary, registered or licensed as a business
entity authorized to conduct business. By accepting this Agreement, you confirm that you will
satisfy these requirements.
PROCESSING CARD TRANSACTIONS AND RECEIVING YOUR FUNDS
24. SMARTPAYMENTS Payments Fees. You agree to pay the fees for processing, which are incorporated
herein by reference (the “Processing Fees”). Processing Fees shall be collected from you by the
Processor in accordance with the terms.
You are obligated to pay all applicable taxes, fees and other charges imposed by any governmental
authority, including, without limitation, any value added tax, goods and services tax, harmonized
sales tax and/or provincial or territorial sales tax, on the Payments Services provided under this
Agreement. If you are tax-exempt, you will provide us with an appropriate certificate or other
evidence of tax exemption that is satisfactory to us.
We reserve the right to change the Fees at any time. If you continue to use the Payments Services
and the Processor Services, then you are deemed to have accepted the change in Fees contemplated by
such notice.
In addition to the Fees, you are also responsible for any penalties and fines imposed on you or on
us by any bank, money services business, payment network, financial institution, or other financial
intermediary resulting from your use of the Payments Services in a manner not permitted by this
Agreement or by such financial intermediary’s rules and regulations.
25. Security Interest. As security for performance of your obligations under this Agreement, you
grant us a first priority lien and security interest on all funds processed and deposited into all
Accounts (as defined in the Processor Terms), and any other bank accounts associated with your
Payments Account, and in any funds processed using the Payment Processing services. These security
interests and liens will secure payment and performance of all of your obligations under this
Agreement and any other agreements now existing or later entered into between us and you, including,
without limitation, your obligation to pay any amounts due and owing to us. You will execute,
deliver and pay the fees for any documents we request to create, perfect, maintain, and enforce this
security interest.
26. Our Collection Rights. To the extent permitted by law, we may collect any obligations you owe us
under this Agreement by requesting that the Processor deduct the corresponding amounts from the
Reserve Account (as that term is defined below) or from funds payable to you arising from the
settlement of Transactions. Fees will be assessed at the time a Transaction is processed and will be
first deducted from the funds received for such Transaction. If these amounts are not sufficient to
meet your obligations to us, we may charge the payment method associated with your Payments Account
for any amounts owed to us. Your failure to fully pay amounts that you owe us on demand will be a
breach of this Agreement. You will be liable for our costs associated with collection in addition to
the amount owed, including, without limitation, attorneys’ fees and expenses, costs of any
arbitration or court proceeding, collection agency fees, and any applicable interest.
Additionally, we may require a personal guarantee from a principal of a business for funds owed
under this Agreement. If we require a personal guarantee we will specifically inform you in advance.
In addition to the amount due, delinquent accounts may be charged with fees that are incidental to
the collection of delinquent accounts and chargebacks, including, but not limited to, collection
fees and convenience fees and other third-party charges.
You hereby explicitly agree that all communication in relation to delinquent accounts will be made
by electronic mail or by phone, as provided to SMARTPAYMENTS by you. Such communication may be made
by SMARTPAYMENTS or by anyone on its behalf, including, but not limited to, a third-party collection
agent.
27. Rolling Reserves. Funds held in reserves are amounts of money held by Processor set aside to
cover chargebacks, refunds, or other payment obligations under this Agreement (the “Reserve
Account”). We, in our discretion, will set the terms of your Reserve Account and notify you of such
terms, which may require that a certain amount (including the full amount) of the funds received for
a Transaction are held for a period of time, or that additional amounts are held in the Reserve
Account. We, in our discretion, may elect to change the terms of the Reserve Account at any time,
for any reason, based on your payment processing history or as requested by our payment processors.
We may require you to fund the Reserve Account by means of: (i) any funds pay-outs made or due to
you for Transactions submitted to the Payments Services; or, (ii) amounts available in your bank
account; or, (iv) other sources of funds associated with your Payments Account; or, (iv) requesting
that you provide funds to Processor for deposit to the Reserve Account.
You agree that: (i) you are not entitled to any interest or other compensation associated with the
funds held in the Reserve Account; (ii) you have no right to direct that account; (iii) you have no
legal interest in those funds or that account; and, (iv) you may not assign any interest in those
funds or that account.
28. Contesting Chargebacks. You or SMARTPAYMENTS may elect to contest chargebacks assessed to your
account. SMARTPAYMENTS may provide you with assistance, including notifications and software to help
contest your chargebacks. We do not assume any liability for our role or assistance in contesting
chargebacks.
You grant us permission to share records or other information required with the cardholder, the
cardholder’s financial institution, and your financial institution to help resolve any chargeback.
You acknowledge that your failure to provide us with complete and accurate information in a timely
manner may result in an irreversible chargeback being assessed.
If the cardholder’s issuing bank or the Payment Network does not resolve a dispute in your favour,
we may recover the chargeback amount and any associated fees from you as described in this
Agreement.
We reserve the right, upon notice to you, to charge a fee for mediating or investigating chargeback
disputes.
TERMINATION AND OTHER GENERAL LEGAL TERMS
29. Term. The Agreement is effective upon the date you agree to it (by electronically indicating
acceptance) and continues so long as you use the Payments Services or until terminated by you or by
SMARTPAYMENTS and/or Processor.
30. Termination You may terminate this Agreement by closing your Payments Account. We may terminate
this Agreement and close your Payments Account at any time, for any reason, upon notice to you. We
may suspend your Payments Account and your access to the Payments Services and any rights in respect
of your Payments Account, or terminate this Agreement, at any time, for any reason, including if:
(i) we determine that you may be ineligible for the Payments Services because of the risk associated
with your Payments Account, including, without limitation, significant credit or fraud risk, or for
any other reason; (ii) you do not comply with any of the provisions of this Agreement or the
Processor Terms; or, (iii) upon request of the Payment Network, the Processor, or a Card issuer.
Termination of the Processor Terms may, at the discretion of SMARTPAYMENTS, result in a termination
of this Agreement. Termination of this Agreement shall entitle SMARTPAYMENTS to cause the Processor
to terminate the Processor Terms.
If the Processor terminates the Processor Terms or indicates its intention to do so, or if you elect
to cease processing with such Processor, we have the right, but not the obligation, to offer you a
substitute payment processor that is integrated with the Payments Account. Upon your acceptance of
the terms of service of such substitute payment processor, they shall be deemed to have replaced the
Processor contemplated herein, provided that your liabilities to the Processor herein shall not be
diminished on account of accepting the terms of the substitute payment processor.
31. Effects of Termination. Upon termination and closing of your Payments Account, we will
immediately discontinue your access to the Payments Services. You agree to complete all pending
Transactions, immediately remove all logos for Cards, and stop accepting new Transactions through
the Payments Services. You will not be refunded the remainder of any Fees that you have paid for the
Payments Services if your access to or use of the Payments Services is terminated or suspended. Any
funds in the Financial Services Provider’s custody will be paid out to you subject to the terms as
defined in the Processor Terms.
Termination does not relieve you of your obligations as defined in this Agreement, and the Processor
may elect to continue to hold any funds deemed necessary, pending resolution of any other terms or
obligations defined in this Agreement, including, but not limited to, chargebacks, fees, refunds, or
other investigations or proceedings.
Upon termination you agree: (i) to immediately cease your use of the Payments Services; (ii) to
discontinue use of any SMARTPAYMENTS or Processor trademarks and to immediately remove any
SMARTPAYMENTS or Processor references and logos from your website and/or physical location, if
applicable; (iii) that the license granted 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; (v) that we will not be liable to you for compensation, reimbursement, or damages in
connection with your use of the Payments Services, or any termination or suspension of the Payments
Services, or deletion of your information or account data; and, (vi) that you will still be liable
to us for any fees or fines, or other financial obligation incurred by you or through your use of
the Payments Services prior to termination.
32. Ownership. The Payments Services are licensed and not sold. We reserve all rights not expressly
granted to you in this Agreement. The Payments Services are protected by copyright, trade secret,
and other intellectual property laws. We own the title, copyright, and other worldwide Intellectual
Property Rights (as defined below) in the Payments Services and all copies of the Payments Services.
This Agreement does not grant you any rights to our trademarks or service marks.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights,
copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and
service mark rights, goodwill, trade secret rights and other intellectual property rights as may now
exist or hereafter come into existence, and all applications therefore and registrations, renewals
and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
You may choose to, or we may invite you to submit comments or ideas about the Payments Services,
including, without limitation, about how to improve the Payments Services or our products (“Ideas”).
By submitting any Idea you agree that your disclosure is gratuitous, unsolicited and without
restriction, and will not place us under any fiduciary or other obligation, and that we are free to
use the Idea without any additional compensation to you, and/or to disclose the Idea on a
non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your
submission, we do not waive any rights to use similar or related ideas previously known to us, or
developed by our employees, or obtained from sources other than you.
33. Your Liability and Indemnification Concerning Liabilities. Nothing in this Agreement shall serve
to diminish your liability under the Processor Terms or SMARTPAYMENTS Terms. You are obliged to
fulfil your obligations under this Agreement and those under the Processor Terms and SMARTPAYMENTS
Terms.
SMARTPAYMENTS has agreed to indemnify and hold the Processor harmless for some, and, in some cases,
all of your liabilities occurring under the Processor Terms, including, but not limited to, disputes
(including, but not limited to, chargebacks), refunds, reversals, returns and fines (as such terms
are defined in the Processor Terms). Insofar as SMARTPAYMENTS becomes liable to the Processor or any
other third party for any penalties, fines, fees, or other liabilities under or in respect of the
Processor Terms, the Payments Services, the Payment Processing services, or the Payment Network
Rules, you agree to indemnify and hold SMARTPAYMENTS harmless from and against any and all such
liabilities.
Additionally, we may require a personal guarantee from a principal of a business for funds owed
under this Agreement.
You agree to indemnify and defend SMARTPAYMENTS, our affiliates, and their respective employees,
agents and service providers (each, a “SMARTPAYMENTS Entity”) against any claim, suit, demand, loss,
liability, damage, action, or proceeding (each, a “Claim”) brought by a third party against a
SMARTPAYMENTS Entity, and you agree to fully reimburse the SMARTPAYMENTS Entities for any Claims
that result from: (i) your breach of any provision of this Agreement; (ii) any fees, fines,
penalties, disputes, reversals, returns, chargebacks (as such terms are defined in the Processor
Terms), or any other liability we incur that results from your use of the Payments Services; (iii)
negligent or wilful misconduct of your owners, employees, contractors, or agents; (iv) contractual
or other relationships between you and your customers; or, (v) third-party indemnity obligations we
incur as a direct or indirect result of your acts or omissions, including, but not limited to,
indemnification of the Processor or any Payment Network.
We will have the final decision-making authority with respect to Claims, including, without
limitation, claims for refunds for purchased items that are filed with us by you or your customers.
You will be required to reimburse us for your liability. Your liability will include the full
purchase price of the item plus the original shipping cost (and in some cases you may not receive
the item back). You will not receive a refund of any Fees paid to us.
If you are liable for any amounts owed to us, we may ask Processor immediately to remove such
amounts from your Rolling Reserve and deduct the amounts owed to us from such Reserve funds. If you
do not have sufficient funds in the Rolling Reserve to cover your liability, you will be required to
immediately add additional funds to your Rolling Reserve to cover funds owed to us. If you do not do
so, we may engage in collections efforts to recover such amounts from you at your cost and expense.
34. Your Representations, Warranties and Covenants. You represent and warrant to us that: (i) if you
are a sole proprietor, you are at least eighteen (18) years of age or, if you are a corporation or
other entity, that the person entering into this Agreement on your behalf is at least eighteen (18)
years of age, is authorized to act on your behalf, and has the authority to bind you to this
Agreement; (ii) you are eligible to register and use the Payments Services and have the right,
power, and ability to enter into and perform under this Agreement; (iii) the name identified by you
when you registered is your name or business name under which you sell goods and services and the
information that you have provided to us is accurate and complete; (iv) you are not a member of an
organized crime group, a party who has been a member of an organized crime group in the past five
years, a quasi-member of an organized crime group, a corporate racketeer, or other similar party,
nor are any of your officers or employees a member of the foregoing; and, (v) you will not carry
out, nor use a third party to carry out, any of the following unlawful acts: (a) the act of making
violent demands; (b) the act of making unreasonable demands exceeding legal responsibilities; (c)
the act of using threatening behavior or violence in relation to a transaction; (d) the act of
spreading rumors, using fraudulent means, or using force to harm the other party’s reputation or
obstruct the party’s business; (e) the act of selling products for the purpose of money laundering;
(f) the act of using a Card held by you for a sale without reasonable grounds or another act similar
to those set forth in (a) through (f).
You hereby covenant to us that: (i) any Transactions submitted by you will represent a bona fide
sale by you; (ii) any Transaction submitted by you will accurately describe the goods and/or
services sold and delivered to a customer; (iii) you will fulfil all of your obligations to each
customer for which you submit a Transaction and will resolve any disputes or complaints directly
with your customers; (iv) you and all Transactions initiated by you will comply with all applicable
laws, rules, and regulations applicable to your business, including, but not limited to, any
applicable tax laws and regulations; (v) except in the ordinary course of business, no Transaction
submitted by you through the Payments Services will represent a sale to any principal, partner,
proprietor, or owner of your entity; (vi) you will not use the Payments Services, directly or
indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the
Payments Services; and, (vii) any information you provide to us will be accurate and complete.
35. NO WARRANTIES. THE PAYMENTS SERVICES AND ALL ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS
IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT. USE OF THE PAYMENTS SERVICES IS AT YOUR OWN RISK.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE PAYMENTS
SERVICES OR FROM: (I) SMARTPAYMENTS; (II) THE PROCESSOR, SUPPLIERS OR LICENSORS OF SMARTPAYMENTS OR
THE PROCESSOR; OR, (III) ANY OF THE RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES OF ANY
OF THE ENTITIES LISTED IN (I) OR (II) ABOVE (COLLECTIVELY, THE “DISCLAIMING ENTITIES” AND
INDIVIDUALLY, A “DISCLAIMING ENTITY”), WILL CREATE ANY WARRANTY. YOU SPECIFICALLY ACKNOWLEDGE THAT
WE DO NOT HAVE ANY CONTROL OVER THE PRODUCTS OR SERVICES THAT ARE PAID FOR WITH THE PAYMENTS
SERVICES, AND WE CANNOT ENSURE THAT YOUR CUSTOMERS WILL COMPLETE A TRANSACTION OR ARE AUTHORIZED TO
DO SO.
WITHOUT LIMITING THE FOREGOING, THE DISCLAIMING ENTITIES DO NOT WARRANT THAT: (I) THE INFORMATION
THEY PROVIDE OR THAT IS PROVIDED THROUGH THE PAYMENTS SERVICES IS ACCURATE, RELIABLE OR CORRECT;
(II) THE PAYMENTS SERVICES WILL MEET YOUR REQUIREMENTS; (III) THE PAYMENTS SERVICES WILL BE
AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (IV) THE PAYMENTS SERVICES WILL FUNCTION IN AN
UNINTERRUPTED MANNER OR BE SECURE; (V) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR, (VI) THE
PAYMENTS SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY SUBJECT MATTER DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PAYMENTS SERVICES IS
DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR
LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. THE DISCLAIMING ENTITIES MAKE NO REPRESENTATIONS OR
WARRANTIES ABOUT HOW LONG WILL BE NEEDED TO COMPLETE THE PROCESSING OF A TRANSACTION.
THE DISCLAIMING ENTITIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY
PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE PAYMENTS SERVICES, OR ANY
HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND NEITHER
SMARTPAYMENTS, THE PROCESSOR, NOR THE FINANCIAL SERVICES PROVIDER WILL BE A PARTY TO, OR IN ANY WAY
MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
36. Limitation of Liability and Damages. IN NO EVENT SHALL A DISCLAIMING ENTITY (AS DEFINED ABOVE)
BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO THIS AGREEMENT
OR THE PAYMENTS SERVICES, INCLUDING, WITHOUT LIMITATION, THE USE OF, INABILITY TO USE, OR
UNAVAILABILITY OF THE PAYMENTS SERVICES. UNDER NO CIRCUMSTANCES WILL ANY OF THE DISCLAIMING ENTITIES
BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER
UNAUTHORIZED ACCESS OR USE OF THE PAYMENTS SERVICES OR YOUR PAYMENTS ACCOUNT, OR THE INFORMATION
CONTAINED THEREIN.
THE DISCLAIMING ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY: (I) PERSONAL INJURY OR
PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE PAYMENTS
SERVICES; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF SERVERS USED IN CONNECTION WITH THE PAYMENTS
SERVICES AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (III) ANY INTERRUPTION OR CESSATION
OF TRANSMISSION TO OR FROM THE PAYMENTS SERVICES; (IV) ANY SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR
OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE PAYMENTS SERVICES; (V) ANY ERRORS,
INACCURACIES OR OMISSIONS IN ANY CONTENT OR INFORMATION, FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT
OF THE USE OF ANY CONTENT OR INFORMATION, IN EACH CASE POSTED, EMAILED, STORED, TRANSMITTED, OR
OTHERWISE MADE AVAILABLE THROUGH THE PAYMENTS SERVICES; AND/OR (VI) USER CONTENT OR THE DEFAMATORY,
OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS SECTION, THE DISCLAIMING ENTITIES’ CUMULATIVE
LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES, AND IN ALL EVENTS SHALL NOT EXCEED IN THE
AGGREGATE THE AMOUNT OF FEES PAID BY YOU TO SMARTPAYMENTS DURING THE THREE (3) MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS
BASED, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR
ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF SMARTPAYMENTS OR THE PROCESSOR HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGE.
THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE
JURISDICTION.
The Payments Services are controlled and operated from facilities in Estonia. We make no
representations that the Payments Services are appropriate or available for use in other locations.
Those who access or use the Payments Services from other jurisdictions do so at their own volition
and are entirely responsible for compliance with all applicable foreign and local laws and
regulations, including, but not limited to, export and import regulations. You may not use the
Payments Services if you are a resident of a sanctioned country or are a foreign person or entity
blocked or denied.
37. Disputes, Choice of Law, Jurisdiction, Venue and Miscellaneous. This Agreement is governed by
the laws of Estonia. The exclusive venue for any actions or claims arising under or related to this
Agreement shall be a court of Estonia.
SMARTPAYMENTS may or may direct the Processor to respond to and comply with any subpoena, warrant,
or other legal order (“Legal Process”) that we believe to be valid. The Processor or any applicable
Financial Services Provider may deliver or hold any funds, or any Data as required under such Legal
Process, even if you are receiving funds or Data on behalf of other parties. Where permitted by law,
we will make reasonable efforts to provide you notice of such Legal Process by sending a copy to the
email address we have on file for you. We are not responsible for any losses, whether direct or
indirect, that you may incur as a result of our response or compliance with a Legal Process.
Headings are included for convenience only and shall not be considered in interpreting this
Agreement. The Agreement does not limit any rights that we may have under trade secret, copyright,
patent, or other laws. Our failure to assert any right or provision under this Agreement shall not
constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be
deemed a further or continuing waiver of such term or any other term.
38. Right to Amend. We have the right to change or add to the terms of this Agreement at any time,
and to change, delete, discontinue, or impose conditions on any feature or aspect of the Payments
Services or software with notice that we in our sole discretion deem to be reasonable in the
circumstances, including notice or any other website maintained or owned by us for the purposes of
providing services in terms of this Agreement. Any use of the Payments Services after our
publication of any such changes shall constitute your acceptance of this Agreement as modified.
39. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be
transferred or assigned by you without our prior written consent, but may be assigned by us without
consent or other restriction.
40. Change of Business. You agree to give us at least thirty (30) days prior notification of your
intent to change your current product or services types, your business or trade name, or the manner
in which you accept payment. You agree to provide us with prompt notification within three (3) days
if you are the subject of any voluntary or involuntary bankruptcy or insolvency application,
petition or proceeding, receivership, bankruptcy, or similar action or proceeding initiated by or
against you or any of your principals (any of the foregoing, a “Bankruptcy Proceeding”). You also
agree to promptly notify us within three (3) days of any adverse change in your financial condition,
any planned or anticipated liquidation or substantial change in the basic nature of your business,
any transfer or sale of twenty-five percent (25%) or more of your total assets, or any change in the
control or ownership of your or your parent entity. You will also notify us within three (3) days of
any judgment, writ, warrant of attachment or execution, or levy against twenty-five percent (25%) or
more of your total assets.
You will include us on the list and matrix of creditors as filed with any bankruptcy, commercial or
civil court in connection with any Bankruptcy Proceeding, whether or not a claim may exist at the
time of filing. Failure to do so will be cause for immediate termination of this Agreement and shall
allow the pursuit of any other action available to us under the applicable Payment Network Rules or
law.
41. Parties. This Agreement binds you and your respective heirs, representatives, and permitted and
approved successors (including those by merger and acquisition), or any permitted assigns.
42. Third-Party Services and Links to Other Web Sites. You may be offered services, products, and
promotions provided by third parties and not by us. If you decide to use these third-party services,
you will be responsible for reviewing and understanding the terms and conditions associated with
these services. You agree that we are not responsible for the performance of these services. The
SMARTPAYMENTS website may contain links to third-party websites as a convenience to you. The
inclusion of any website link does imply an approval, endorsement, or recommendation by us. You
agree that your access to any such website is at your own risk, and that the site is not governed by
the terms and conditions contained in this Agreement. We expressly disclaim any liability for these
websites. Please remember that when you use a link to go from our website to another website, our
Privacy Policy is no longer in effect. Your browsing and interaction on any other website, including
those that have a link on our website, is subject to that website’s own rules and policies.
43. Force Majeure. Neither party will be liable for any delay or non-performance of its obligations
under this Agreement to the extent that such delay or non-performance is a result of any condition
beyond its reasonable control (Force Majeure), including but not limited to, governmental action,
the war, riots, hurricane, typhoon, acts of terrorism, earthquake, fire, flood, lightning, explosion
strikes, lockouts, emergency state, pandemic or any other diseases as defined by the World Health
Organization (WHO), prolonged shortage of energy supplies, and acts of state or governmental action
prohibiting or impeding any party from performing its respective obligations under the Agreement or
other acts of God, labor conditions, power failures, and Internet disturbances.
44. Entire Agreement and Remedies. These terms and conditions, and all policies and procedures that
are incorporated herein by reference, constitute the entire agreement between you and SMARTPAYMENTS
with respect to the provision of the Payments Services. Except as otherwise set out herein, in the
event of a conflict between this Agreement and any other SMARTPAYMENTS or Processor agreement or
policy, this Agreement shall prevail on the subject matter of this Agreement. Except as expressly
provided in this Agreement, these terms describe the entire liability of SMARTPAYMENTS and our
vendors and suppliers and sets forth your exclusive remedies with respect to the Payments Services
and your access and use of the Payments Services. If any provision of this Agreement (or portion
thereof) is held to be invalid or unenforceable under applicable law, then it shall be changed and
interpreted to accomplish the objectives of such provision to the greatest extent possible under
applicable law, and the remaining provisions will continue in full force and effect.
This Agreement has been reviewed by you with the benefit of independent legal counsel to the extent
you consider necessary, and any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply to the construction or interpretation of this
Agreement. The rights conferred upon us in this Agreement are not intended to be exclusive of each
other or of any other rights and remedies we may have at law or in equity. Rather, each and every
right we may have under this Agreement, at law or in equity, is cumulative and concurrent, and in
addition to every other right.
45. Survival. The Parties understand and agree that all terms and conditions of the Agreement that
require continued performance, compliance, or effect beyond the termination date of the Agreement
shall survive such termination date and shall be enforceable in the event of a failure to perform or
comply.
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