Payment Processing Terms and Conditions
The Terms and Conditions described herein constitute a legal agreement (“Agreement” or “DENEFITS”) between you (if your business is a sole proprietorship) or your business (if you are signing up on behalf of a corporation or other legal entity) (the “Business”, “you” or “your”). Your use of the Services shall be deemed agreement to the terms and conditions of this Agreement.
DENEFITS is a payment facilitator that allows you to accept Cards from customers for the payment for goods and services. We are not a bank, payment institution, or money services business and do not offer banking services. 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”).
Our Payment Services allow you to accept payments from any US-issued and most non-US issued credit, debit, prepaid, HSA/FSA or gift cards (“Cards”) bearing the trademarks of American Express Travel Related Services Company, Inc. (“American Express”), DFS Services, LLC (“Discover”), MasterCard International Inc. (“MasterCard”) and Visa Inc. (“Visa”) (collectively, the “Networks”). You are not required to accept any card brand as a condition of receiving the Payment Services. We may remove or add Cards that we accept at any time without prior notice.
The Processor is Stripe, Inc., organized under the laws of California, which is a technical services provider and may offer the services as an agent of one or more financial institutions in the United States (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 Stripe Connected Account Agreement, including the United States Stripe Services Agreement and the applicable Financial Services Terms, and to the extent you use a payment method that is subject to additional terms, the Payment Terms (collectively, the “Processor Terms”). By accepting this Agreement, you are also accepting and agreeing to be bound by the Processor Terms, which is the legal agreement between you and the Processor.
DENEFITS 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.
In order to serve in this role, we must enter into agreements with Networks, processors and acquiring banks. The Networks require that any person that signs up for a DENEFITS Account to use Payment Services (a “Seller”) and processes more than Network specified amounts of Cards sales enter into an agreement directly with DENEFITS. By accepting or otherwise agreeing to these Payment Terms, you agree to the terms and conditions effective as of the date you process such specified amounts or as otherwise required by DENEFITS. If you fail to agree to any terms and conditions, we may suspend or terminate your DENEFITS Account. Similarly, if American Express considers you to be a high value customer, it may require that you maintain your agreement directly with American Express and designate DENEFITS as your agent for American Express payments. If that is the case, we will notify you of such requirement.
- RELATIONSHIP ADMINISTRATION.
- Depository Account Consent. For the term of this Agreement and so long as you have any outstanding obligations to us under this Agreement, you agree to establish and maintain a Depository Account at a financial institution in the United States of your choosing. The Depository Account is identified in the Application. You authorize DENEFITS and its affiliates to initiate debit and/or credit entries to your Depository Account, at the depository financial institution named in the Application, and to debit and/or credit the same such account (the “Authorization”). You include in such Authorization the right for DENEFITS and its affiliates to reverse or debit any credit entries made in error to the Depository Account. You agree that the origination of ACH transactions to your Depository Account must comply with the provision of U.S. law. DENEFITS may, with the Authorization, make debit or credit entries on the Depository Account for any of your liabilities or Services under this Agreement including but not limited to: (i) provisional funding of your Card Transactions; (ii) your Fees; (iii) your Chargebacks and Revocations; and (iv) any other charges, fines, fees, penalties, payment of current or past due amounts for equipment lease, rental or purchase, Card Organizations fees, costs arising from replacement or damage to equipment, and other amounts due in connection with an Event of Default or other charges assessed by us, the Card Organizations, third party service providers, network operators and others as pertains to this Agreement. Establishing your Depository Account requires that you provide us with a cancelled check (or letter from your financial institution) and take all steps required by your financial institution to allow us to debit/credit your Depository Account on a recurring basis.
- Applicable Rules and Laws. You agree to be bound by all applicable Rules and any other card organizations, network, or government agency rules related to the protection of non-public personal information and transaction information security. You acknowledge that the Card Organizations publish and make available their Rules and regulations, bulletins, alerts and directives and agree that it is each party’s sole responsibility to review and comply with any such publications as may be applicable to them for compliance with the Rules and this Agreement. The Rules are incorporated into this Agreement by reference.
- Cardholder/Receiver Documentation. You agree that you will only process (including imprinting, transmitting or depositing proceeds from) Transactions for your own goods and services sold or provided in the ordinary course of your business. You will ensure that every Transaction receipt (or other evidence of Cardholder/Receiver indebtedness) accurately describes the goods or services sold and delivered. You also agree not to accept Transactions on behalf of any other party or otherwise re-direct payments to any other party without explicit written permission from DENEFITS. You will ensure that every Transaction receipt will be signed by the cardholder at the time of the Transaction. The parties agree that, unless they obtain consent from the other party, they will not use, disclose, sell, or disseminate any payment information obtained in connection with a payment Transaction except for purposes of authorizing, completing and settling card Transactions, using or delivering the Services and resolving Chargebacks/Revocations, retrieval requests or similar issues involving Transactions, other than as may be required for a court or governmental agency request, subpoena or order. Neither party will obtain ownership rights in any information relating to and derived from Transactions except as set forth in the Rules.
- Protecting Cardholder Information. The Payment Card Industry Data Security Standard (“PCI DSS”), Visa Cardholder Information Security Program (CISP) and the MasterCard Site Data Protection Program (SDP) are sets of requirements (collectively, the “Security Standards”) designed to ensure that all companies that process, store, or transmit credit card information maintain a secure environment. This applies to all merchants with a Merchant Account Number. You are required to comply with the Security Standards. You agree that you will not compile lists of protected payment card information, as determined by PCI DSS or Transaction information. You also agree to secure all personal information, including Transaction receipts, contracts, rental/lease agreements and warranty information. The parties agree that securing personal information includes limiting access to select personnel (required for compliance with your obligations under this Agreement) and destroying such personal information in a manner that ensures that it is not readable, when no longer required for purposes of compliance with this Agreement.
- Facility and Infrastructure. You acknowledge and agree that you are solely responsible for the implementation, maintenance and security of your locations, the Equipment used in processing Transactions under this Agreement, communication lines, power supply services and all other facility and infrastructure costs.
- Business Employee Responsibilities. You agree to ensure that all Equipment is monitored during and closed/turned off after business hours to minimize the risk of unauthorized use.
- Initiating Transactions. When a Merchant wishes to initiate a Transaction through the Services, the Merchant hereby appoints DENEFITS as its payment processor and agent for the purposes of processing and receiving payment by Transactions from its Customers of the Merchant. Merchant hereby instructs DENEFITS to accept Transactions through the Services, in the amounts specified by the Merchant, and the Merchant agrees that DENEFITS is acting on behalf of the Merchant in its carrying out of the foregoing and shall honor the terms of each Transaction as if they were carried out by the Merchant itself.
- Business Release of Customer on Payment to DENEFITS. DENEFITS is not a bank, money transmitter or other money services business. The Services consist of payment processing pursuant to which DENEFITS acts on behalf of Merchants in the processing through Banks and receipt of Transaction payments. As of when DENEFITS takes possession of any Transaction funds here under, as a payment processor and agent of Merchant, Merchant shall grant the Customer who made the Transaction payment the full benefit of such payment including, in the case of donations, for example, issuing a receipt for the donation. Customer’s enjoyment of the full benefit of a Transaction payment shall not be delayed by Merchant until that later time when DENEFITS settles Transaction funds to the Merchant. DENEFITS reserves the right to monitor use of the Service to ensure compliance with this Agreement. If it is determined you are not in compliance with this Agreement, DENEFITS reserves the right to take appropriate action including, but not limited to, assessing additional Fees or suspension or termination of the Account. You acknowledge that such monitoring of use may include determining whether or not the Service is accessed under the Account from multiple IP addresses, as well as noting excessive use or users.
- Business Release of Customer on Payment to DENEFITS. MERCHANT AGREES AND COVENANTS THAT UPON DENEFITS RECEIVING A PAYMENT TRANSACTION FROM A CUSTOMER OF THE MERCHANT, THAT AS OF THE RECEIPT BY DENEFITS OF THE AMOUNT OF THE TRANSACTION, THAT THE CUSTOMER IS THEREBY RELEASED FROM ANY LIABILITY TO THE MERCHANT IN RESPECT OF SUCH AMOUNT PAID. NO DELAY IN PAYMENT BY DENEFITS ON A GIVEN TRANSACTION AMOUNT TO MERCHANT, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION SEIZURE OF DENEFITS ASSETS OR BANKRUPTCY OF DENEFITS, SHALL SERVE TO DIMINISH THE FOREGOING OR ENTITLE MERCHANT TO COLLECT ANY AMOUNT FROM A CUSTOMER THAT HAS BEEN PAID TO DENEFITS THROUGH THE MERCHANT’S USE OF THE SERVICES. DENEFITS IS AUTHORIZED TO ISSUE TO ANY CUSTOMER A RECEIPT FOR PAYMENT TO THE MERCHANT, IN THE NAME OF THE MECHANT, FOR ANY TRANSACTION FUNDS PAID TO THE MERCHANT THROUGH THE SERVICES.
- CARD TRANSACTIONS. The following sections summarize the procedures required for you to accept credit and debit cards issued by Visa, MasterCard, Discover, American Express, and any other Card Organization Cards that you accept for payment of your goods and services.
- Card Identification. Legitimate Card Organization Cards have unique visual characteristics, account numbers and anti-fraud/counterfeit measures that you agree to become familiar with. You agree to train all your employees on procedures for examining and identifying questionable payment cards. You are responsible for reviewing Card Organizations’ materials published for merchants and familiarizing your employees on characteristics of legitimate cards and strategies used when presenting fraudulent or counterfeit cards.
- Card Acceptance and Authorization. You agree to accept credit and debit cards issued by members of the Card Organizations identified on your Merchant Application. When a Cardholder or authorized user presents a credit or debit card for payment or donation, you agree that you will perform the following tasks:
- Bonafide Transactions. Businesses shall not submit any Transaction that is not a bonafide Transaction. A “bonafide” Transaction means a Transaction that is (i) between the Business and its Customer, (ii) for the sale of goods and/or services (or a refund for such a sale) that are Businesses property or that Business has the legal right to sell, (iii) submitted on behalf of Business (and not on behalf of any third party), and (iv) legal, authorized by the Customer, non-fraudulent or otherwise damaging to the Card Brand(s), and is, to the Businesses knowledge, enforceable, collectible, and in full compliance with this Agreement, applicable law, or Card Brand Rules.
- Split Transactions. Businesses agree to submit a single Transaction for the full amount of each sale. Businesses hall not split a single Transaction into two or more Transactions.
- Fair Acceptance. You agree to: (i) sell your goods and/or services at the ticketed or posted price; (ii) not impose fees or special conditions not required or allowed by the Card Organizations Rules and (iii) not offer a discount unless clearly disclosed as a discount from the price available for all other means of payment.
- Card Examination. When the card is present, you agree to swipe or imprint the card, or where applicable, insert the chip card into a chip card reader, only to allow Cardholders to purchase your goods and /or services. You agree to: (i) inspect the card signature panel for signs of tampering or alteration (not applicable to chip card transactions); (ii) verify that the signature on the card matches the transaction record (not applicable to chip card transactions); (iii) not require Cardholders to supply personal information (e.g., home /business address or driver license number) as a condition for completing the transaction, unless instructed during the authorization process; (iv) not allow an individual, who is not the Cardholder, to use the card for purchases; and (v) not allow the use of a card to submit a transaction to refinance or transfer a previous debt or to pay for a dishonored check.
- Manual Card Acceptance. When accepting Card Transactions manually, you agree that you will: (i) verify that the signature on the transaction record matches the signature on the back of the card; (ii) provide a transaction record to the Cardholder; (iii) keep a copy of the transaction record for a minimum of 18 months (longer if required by local regulations); and (iv) contact DENEFITS to issue credits for refunds (if Cardholder is entitled).
- Issuing Credits. You agree that you will contact DENEFITS if any refund, price adjustment or other money adjustment due to the Cardholder (other than any involuntary refund required by applicable law). You further agree that you: (i) will not return cash if a card was used in the original purchase; (ii) may establish a policy limiting refunds or acceptance of returned goods, provided that it follows the refund/return procedures established by each Card Organization including the proper disclosure of such policy; and (iii) will not accept money from a Cardholder to effect a deposit to the Cardholder’s account.
- Internet Notice Requirements. You agree to review and abide by all Rules and requirements for the acceptance of payment, display of Marks, retention of records, dispute processing, information security and any other requirements set forth in any guideline, bulletin, alert or other Card Organization publication related to Internet payment services, notices and disclosures. We require that the following (if applicable) be included/displayed in any Internet website that advertises acceptance of Card Organizations cards applicable to this Agreement: (i) a complete description of the goods or services offered, including technical requirements, if any; (ii) your customer service telephone number or email address; (iii) any applicable export or legal restrictions or conditions; (iv) your consumer data privacy and transmission of personal information policies; (v) a description of your transaction security processes; (vi) an itemized list of prices including taxes, shipping charges and the method of shipping; (vii) a description and estimated amount of any additional charge(s) (e.g., delivery charges, customs fees) that applies or may apply; (viii) the total amount payable and the amount and frequency of any periodic payments; (ix) a description of any trade-in arrangement and allowances; (x) service related information (e.g., where will services be performed, for whom, third-party providers etc.); disclosure of the country where the merchant outlet is located; (xi) all required Card Organizations trade and service marks; and (xii) your physical address. You further acknowledge and agree that the servicers are not responsible for the security of the Cardholder data or information stored on our or any Internet service provider’s computers, systems or web site(s) and that you will be solely responsible for any liability, fines, or penalties arising from its use, storage, or dissemination of cardholder data.
- Transaction Chargebacks. A Chargeback is a disputed Card Transaction that is returned to us by the Issuing Bank of the Card. Upon notice of a dispute, you agree that it is your responsibility to resolve it directly with the Cardholder. If we receive a Chargeback notice, we will debit your Depository Account for the amount of the Chargeback. In some cases, a card issuer may request a copy of the Transaction record prior to initiating a Chargeback. We will forward these requests to you and deliver your response to the card issuer. You understand that you must respond to these requests within the time frames and manner stated. Due to the short time requirements imposed by the Card Organizations, your failure to timely respond will be communicated to the card issuer and may result in a Chargeback(s) as well as Card Organizations related costs or fees. You agree that comprehensive Chargeback procedures are published by each Card Organization and the following is intended to serve only as a general guideline for compliance:
- Document Request Procedures. To address a Card issuer’s Transaction record request, you should: (i) make a legible copy of the Transaction record, centered on a letter size sheet of paper (one transaction record per page); (ii) write the case number on the copy; (iii) include copies of agreements etc. that may be applicable to the disputed Transaction; (iv) include a copy of the credit, if applicable; and (v) fax or mail the copies to the number/address on the request. You understand that letters are not acceptable substitutes for Transaction records. If the information you provide is both timely and, in our sole discretion, sufficient to warrant representment and /or reversal of the Chargeback, we will do so on your behalf. You understand that representment and/or reversal are contingent upon card issuer/Cardholder acceptance under the applicable Card Organization Rules.
- Chargeback Reasons. You understand that at the time of a Transaction, if you do not follow proper procedures, the Transaction may be subject to Chargeback. The following outlines the most common types of Chargebacks, categorized into seven broad groups: (i) “Card Authorization Issues” including no account number verification, full authorization not obtained, expired card; (ii) “Cancellations and Returns” including credit not processed and cancellation of a recurring Transaction; (iii) “Fraud” including counterfeit Transaction, unauthorized or fictitious account number; (iv) “Non-Receipt of Goods and Services”; (v) “Processing Errors” including late presentment of a Transaction record, incorrect account number, code or amount; (vi) “Quality of Goods and Services” including defective goods; and (vii) “Non-Receipt of Information” including the codes: “transaction document not received” or “document was illegible.”
- Payment Cards. When accepting payment card payments, you must comply with all applicable Network Rules, including the Visa Rules and Regulations Rules specified by Visa U.S.A., Inc. and Visa International (“Visa”), the Mastercard Rules specified by MasterCard International Incorporated (“Mastercard”), the American Express Merchant Operating Guide specified by American Express, and the Discover Network Rules (please contact Discover for a copy) specified by Discover Financial Services, LLC (“Discover”). Collectively, Visa, Mastercard, American Express and Discover are referred to in this Agreement as the “Networks”.
- Use of Card Account Numbers. Businesses shall not request or use Card Information for any purpose except as payment for its goods or services or to provide a refund for goods or services previously sold, unless required by the Card Brand Rules. Seller agrees that (i) it will not use the Card Information for any purpose that it knows or should know to be fraudulent or in violation of any Card Brand Rules; (ii) it will not sell, purchase, provide or exchange in any manner or disclose Card Information to anyone other than Square, any Card Brand, or in response to a government request; and (iii) it will be compliant with the Security Standards, including the Payment Card Industry Data Security Standards (PCI DSS) and will cooperate in a forensic investigation if so required.
- PAYOUTS. There are two payout features provided by DENEFITS.
- Instant Payout. When accepting this option, you agree that payment may be deposited to your Debit Card within the same day as the transaction acceptance.
- Regular Payout. When accepting this option, you agree that payment may be deposited to your Debit Card within 2-4 business days of the transaction acceptance.
- SERVICE FEES AND CHARGES.
- DENEFITS will provide the Services to you at the rates and for the fees (“Fees”) described here. You agree to pay the applicable fees listed below. All Fees are charged at the time we process a transaction and are deducted first from the transferred or collected funds. We may revise the Fees at any time. However, we will provide you with notice. DENEFITS pays the Merchant Fee on behalf of the Business. All Fees, charges, and payments collected or paid through DENEFITS are denominated in US dollars.
- Instant Payout Fee. 2% per Transaction
- Regular Payout Fee. 0.5% per Transaction
- Transaction Fee. 3% + $0.25 per Transaction
- Refunds. Transaction fees vary.
- Passing the Transaction fee to your Customer.
- You can pass your DENEFITS fees on to your customers by including the fee into the final charge amount. It is important to ensure that this action complies with any applicable laws that pertain to your business. It is your responsibility to act in accordance with applicable law.
- DENEFITS Responsibility. DENEFITS will pay the Merchant fee per transaction on behalf of the Business.
- Financial Statements. You can download your Payment Report in your Business Portal. These reports will be available up to 60 business days.
- You will request that your customer personally sign for all transactions when your customer is present. You must make a written receipt available to your customers for all transactions. You may give your customers the option to receive or decline a written receipt.
- PROCESSING ERRORS.
- We will attempt to fix processing errors we discover. If an error results in your receipt of fewer funds than you are entitled, we will credit your DENEFITS Account for the difference. You grant us Recovery Authorizations concerning processing errors. If an error results in your receipt of more funds than you are entitled, DENEFITS may recover the extra funds from you. We will only correct transactions that you process incorrectly if you notify us of such an error. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
- GENERAL TERMS AND CONDITIONS.
- Assignment / Third Party Services. The parties agree that this Agreement is binding upon the parties, their heirs, successors and assigns and some of the Services in connection with this Agreement may be provided by third parties.
- Communication. Except as otherwise specifically provided, the parties agree that all notices and other communications required or permitted here under (other than those involving normal operational matters relating to the Services, which may be delivered via statement message or other means) shall be delivered via US mail, email, Business portal, or text message.
- Termination. The parties agree that provisions governing processing and settlement of card transactions, all related adjustments, fees and other amounts due from you and the resolution of any related Charge-backs, Revocations, disputes or other issues involving card transactions will continue to apply even after termination of this Agreement, until all Card Transactions made prior to such termination are settled or resolved.
- Your Representations and Warranties. Without limiting any other warranties under this Agreement, you represent and warrant that each card transaction submitted to us for processing: (i) represents a bonafide sale / rental of merchandise or services not previously submitted; (ii) represents an obligation of the Cardholder for the amount of the Card Transaction; (iii) the amount charged for the card transaction is not subject to any dispute, set-off, or counterclaim; (iv) is only for the merchandise or services (including taxes, but without any surcharge) sold or rented and, except for any delayed delivery or advance deposit card transactions expressly authorized by this Agreement, the merchandise or service was actually delivered to or performed for the person entering into the card transaction simultaneously upon your acceptance and submission of the card transaction for processing; (v) does not represent the refinancing of an existing obligation of the Cardholder (including any obligation otherwise owed to you by a Cardholder or arising from the dishonor of a personal check); (vi) to your knowledge or notice of any fact, circumstance or defense which would indicate that was fraudulent or not authorized by the Cardholder or which would otherwise impair the validity or collectability of the Cardholder’s obligation arising from such card transaction or relieve the Cardholder from liability with respect thereto; and (vii) was entered into by you and the Cardholder. You further agree to cooperate and provide information requested by servicers, as servicers determine necessary, to facilitate servicers’ compliance with any applicable law.
- Our Representations and Warranties. Without limiting any other warranties here under, we represent and warrant that none of the DENEFITS systems infringes on any third party intellectual property rights.
- SERVICE AGREEMENT. THIS AGREEMENT IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE DISCLAIM ALL OTHER REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED, MADE TO YOU OR ANY OTHER PERSON INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS AGREEMENT.
- INDIVIDUAL LIABILITY. IN NO EVENT SHOULD ANY PARTY BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Indemnification. The parties agree to indemnify each other from and against any losses, actions, causes of action, claims, demands, costs, liabilities, expenses, damages, sanctions fines, legal fees or penalties arising from: (i) a party’s misrepresentation or breach of warranty, covenant, or any provision under this Agreement; (ii) a party’s employees’/agents’ fraud, gross negligence, willful misconduct or failure to comply with this Agreement and the Card Organization Rules; or (iii) actions where we have provided third party indemnification(s).
- Choice of Law; Venue; Waiver of Jury Trial. The parties agree that this Agreement shall be governed by and construed in accordance with the laws of the State of California and the federal laws applicable therein. Each party agrees: (i) that any action or proceeding relating to this Agreement may be brought in any court of competent jurisdiction in Orange County, California and for that purpose now irrevocably and unconditionally agrees and submits to the jurisdiction of such California court; (ii) that it irrevocably waives any right to, and will not, oppose any such California action or proceeding on any jurisdictional basis, including forum non conveniens; and (iii) not to oppose the enforcement against it in any other jurisdiction of any judgment or order duly obtained from an California court as contemplated by this section. The parties irrevocably waive any and all rights they may have to a trial by jury in any judicial proceeding involving any claim relating to this Agreement. You additionally agree to waive personal service of process and consent that service of process upon you may be made by certified or registered mail, return receipt requested, at the address provided at the time of enrollment.
- Force Majeure Neither party will be liable for any delays in processing or other nonperformance caused by telecommunications, utility, failures, or equipment failures; labor strife, riots, war, or terrorist attacks; nonperformance of our vendors or suppliers, fires or acts of nature; or any other event over which the respective party has no reasonable control. However, nothing in this section will affect or excuse your liabilities or your obligation to pay Fees, Fines, Disputes, Refunds, Reversals, or Returns under this Agreement.
- Dispute Resolution; Agreement to Arbitrate
- Binding Arbitration: In the event that there is a dispute, claim or controversy arising out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation or validity of any provision of this Agreement, and the determination of the scope or applicability of your agreement to arbitrate any dispute, claim or controversy originating from this Agreement, but specifically excluding any dispute principally related to either party’s intellectual property (which such dispute will be resolved in litigation before the United States District Court for the Northern District of California), will be determined by arbitration in Orange County, California before a single arbitrator. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules. The Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply for cases in which no disclosed claim or counterclaim exceeds $75,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs). Where no party’s claim exceeds $25,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs), and in other cases in which the parties agree, Section E-6 of the Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply. The arbitrator will apply the substantive law of the State of California, exclusive of its conflict or choice of law rules. If the American Arbitration Association is no longer in business, or refuses or declines to administer any dispute between the parties brought before it, either party may petition the United States District Court for the Northern District of California to appoint the arbitrator. Nothing in this paragraph will preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provisions in this paragraph referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern any arbitration conducted pursuant to the terms of this Agreement. Either party may commence arbitration by providing to the American Arbitration Association and the other party to the dispute a written demand for arbitration, setting forth the subject of the dispute and the relief requested.
- Service of Process: Each party hereby irrevocably and unconditionally consents to service of process through personal service at their corporate headquarters, registered address, or primary address (for individuals or sole proprietors). Nothing in this Agreement will affect the right of any party to serve process in any other manner permitted by Law.
- Class Waiver: To the fullest extent permitted by Law, each of the parties agrees that any dispute arising out of or in connection with this Agreement, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any of the transactions contemplated between the parties.
- Provision of an Award: Subject to the limitations of liability identified in this Agreement, the appointed arbitrators may award monetary damages and any other remedies allowed by the laws of the State of California. In making a determination, the arbitrator will not have the authority to modify any term or provision of this Agreement. The arbitrator will deliver a reasoned written decision with respect to the dispute (the “Award”) to each party, who will promptly act in accordance with the Award. Any Award (including interim or final remedies) may be confirmed in or enforced by a state or federal court located in San Francisco, California. The decision of the arbitrator will be final and binding on the parties, and will not be subject to appeal or review.
- Fees: Each party will advance one-half of the fees and expenses of the arbitrators, the costs of the attendance of the arbitration reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to this Agreement, the arbitrators will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defenses on which it prevails, and any opposing awards of costs and legal fees awards will be offset.
- Confidentiality: The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except (i) as may be necessary to prepare for or conduct the arbitration hearing on the merits, (ii) in connection with a court application as contemplated above for a preliminary remedy, or confirmation of an Award or its enforcement, (iii) our disclosure of the Award in confidential settlement negotiations, or (iv) as otherwise required by applicable Laws. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration here under, except as required by Law or except if such evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.
- Conflict of Rules: In the case of a conflict between the provisions of this Section 7.11.5 and the rules governing arbitration identified in Section 7.11.5, the provisions of this Section 7.11.5 will prevail. If any provision of this Agreement to arbitrate is held invalid or unenforceable, it will be so held to the minimum extent required by Law and all the other provisions will remain valid and enforceable.
Last updated - 26 March 2020