1. Effective Date and Amendment
2. Your Obligations
3. Your Warranties and Representations
Payment of Fees, Charges, and Expenses
In consideration of the Services provided to you hereunder, you shall pay us the fees, charges, and expenses for each of the Services, as listed in the Fee Schedule attached as Appendix B to this Agreement. You authorize us to deduct all fees, charges, fines, penalties, wire transfer charges, and other expenses that you are responsible for from the purchase price of Products sold to Buyers prior to making any payment to you, and/or to charge any payment method you have on file with 2CO. Your authorizations will remain in full force and effect while you have an open 2Checkout Account and for any Bank Account listed.
You authorize us to validate any payment method you have on file with 2CO, including the validation of credit cards by charging the card(s) you provide to us with a $1.00 fee that will immediately be voided in order to verify the validity of that credit card.
If your 2CO account should go into a negative balance, you authorize us to charge the payment method on file for the amount owed.
The Fees to open an account are set forth in the Fee Schedule attached as Appendix B to this Agreement. Once sales occur on an account, the URL is locked to that account. If you wish to change the URL for your account, a fee will be charged in accordance with the Charges category in the Fee Schedule attached as Appendix B to this Agreement.
All of the fees described above and throughout this Agreement are immediately due and payable upon demand by 2CO.
All Transactions are processed using our SSL encryption network and any other processes made available through our MSP. Payment will be initiated via the secure payment processes.
A "Transaction" occurs when a Buyer purchases a Product of yours, which has been authorized for sale; a Buyer obtains a Refund of the purchase price for a Product previously purchased as a result of a Return or a Dispute; or a Buyer exchanges a Product previously purchased.
The Transaction Fees are as described under the Transaction Fees category in the Fee Schedule attached as Appendix B to this Agreement.
We may, in our sole discretion, assess a higher Transaction Fee for certain Products you offer to Buyers if we determine that the sale of Products create a potential or actual financial or reputational risk to us.
The Transaction Fees shall be deducted from the proceeds we receive for the sale of the Product prior to payment of any funds to you.
A "Cancellation" occurs when Buyer, you, or 2CO voids an order for a withdrawal of funds from a Buyer's Card account or bank account.
For any Cancellation, which is initiated prior to the time when the Transaction is submitted for settlement, a full refund will be given to Buyer, and we will not assess or collect any Transaction Fee from you.
For any Cancellation request which is initiated after the time when the Transaction is submitted for settlement, a full refund will be given to the Buyer, but we will assess and collect a Transaction Fee from you based upon the price of the original purchase and, if applicable, a Wire Transfer Fee.
A "Dispute" occurs when a Cardholder or the Card-issuing bank disputes the validity of a purchase of a Product and initiates a Chargeback.
In the event that a Refund is paid to a Cardholder by 2CO, for a purchase that is the subject of a Dispute, you will be obligated to reimburse us for the amount of the Refund immediately. In the event the funds for the purchase that is the subject of the Refund have not been paid to you, we may deduct the amount of the Refund from funds due to you, we may debit the Settlement Account by the amount necessary, or we may charge the payment method you have on file with 2CO.
You may dispute a Chargeback as provided in the Card Organizations Operating Rules, and must submit any dispute in time so that we may in turn submit such dispute in compliance with any requirements for timely submission. Our obligation to you respecting Chargeback disputes is limited to permissible presentment of your dispute to the appropriate Card Organizations for handling. We will not engage in direct collection efforts against Cardholders on your behalf. Under no circumstance shall you transfer or attempt to transfer your financial liability hereunder by asking or requiring a Cardholder to waive their dispute rights.
In the event we, in our sole discretion, have any reasonable doubt as to whether you delivered the Product to the Buyer, or any reasonable doubt that the Product delivered to the Buyer was as you advertised, we may withhold the applicable Purchase Payment until we are satisfied that you have performed your obligations to the Buyer.
In addition to the obligation to fully refund the purchase price paid by 2CO if the dispute results in a Refund, you may be assessed a Dispute Charge in accordance with the Chargeback Fees category in the Fee Schedule attached as Appendix B to this Agreement.
You shall pay all Dispute Charges upon demand by 2CO via a debit to your Settlement Account.
Our determination as to whether or not Chargeback Fees are to be assessed to you will be based, in part, upon the "reason codes" selected by the Card-issuing bank. The "reason codes" have been established by Card Organizations as the basis for a Buyer to dispute the validity of a Transaction when a credit or debit card is used to purchase goods or services.
In addition to active participation in fraudulent activity, you will be deemed to have participated in fraudulent activity if we classify a Transaction as fraudulent, or the Transaction is reinstated at your request and the Transaction subsequently becomes the subject of a Dispute by the Card-issuing bank.
Fees or charges to us related to a Transaction which result from service related issues (e.g., failure to accurately advertise the Products) may result in charges to you, as described in the Chargeback Fees category of the Fee Schedule attached as Appendix B to this Agreement.
Change in Fees
We may change any or all of the fees and charges, or add new fees and charges, with reasonable advance notice of such changes to you via posting the changes on our website. If Third Party Service Provider charges are included in, or the basis for, a charge to you and the Third Party Service Provider changes those charges, we will provide notice to you if we receive notice from the Third Party Service Provider in advance of the effective date of such Third Party Service Provider increases. We may charge such increases to you upon the effective date of the Third Party Service Provider increase, regardless of whether or not we provide notice to you.
Interchange and Assessments
You are responsible for the payment of interchange on all of your Transactions and any assessments, fees or other charges related thereto which are levied by the applicable Card Organizations or acquiring financial institution, including any increases of such assessments, fees, and charges by the Card Organizations or acquiring financial institution. The interchange due the applicable Card Organization is included in the fees you are to pay to us. You may be billed separately for any other assessments, fees and charges, or any increase in any of them.
You agree to pay for Transactions successfully challenged by cardholders or card issuers in accordance with applicable Card Organizations Operating Rules relating to Chargebacks and to permit your Settlement Account to be debited for the amount of any Chargebacks.
You shall at all times maintain a depository account at a financial institution acceptable to us for the purposes of settling daily and monthly activity pursuant to this Agreement, for billing and payment of fees, charges, and expenses due hereunder, and for all other purposes described hereunder or determined to be appropriate by us (the "Settlement Account"). The name and entity type on the Settlement Account must match the name and entity type of the International Seller, as listed in the Application. You own and control the Settlement Account, and no security interest or lien of any type in favor of a person exists regarding the Settlement Account or any Card Transaction.
You hereby authorize us to make debit or credit entries and adjustments to the Settlement Account as necessary. You will, upon demand by us, execute any documentation required by your financial institution to enable us to make such debits and credits. You further authorize us to confirm with your financial institution that the Settlement Account is in good standing and to reconfirm such any time there is a change in your Account information.
Nothing herein shall be interpreted to negate our right to charge the payment method you have on file with us or invoice you for any amounts you owe us under this Agreement, which amounts shall be immediately due and payable.
The following provisions of this Section shall apply to the Reserve:
We will withhold from you a reserve equal to the percentage of your gross sales ("Reserve") for each day you participate in our programs. The Reserve is in addition to the fees and charges that will be assessed against you and shall be held in accordance with the terms of the Agreement. In addition, we may increase the percentage of gross sales withheld for the Reserve if there are excessive Disputes, Refunds, and Returns, or if we, in our sole discretion, deem that either you or the Products you offer create a financial or reputational risk to us, or if we otherwise reasonably deem ourselves insecure. We may fund the Reserve by deductions from payments due to you, by charges against the Settlement Account, or by making a demand to you for the amount necessary to fully fund the Reserve, which demand you will comply with within one (1) business day. You shall not have the ability to debit the Reserve during the period it remains open and you will obtain and execute the documents required by the financial institution where the Reserve is established that enable us to make such debits and to restrict you from debiting the Reserve. The amount required to be maintained in the Reserve, and the terms and conditions regarding maintaining the account, shall be established by 2CO, in our reasonable discretion. Upon termination of this Agreement, we may require an additional Reserve to cover possible indebtedness to us for Transactions initiated prior to termination. The Reserve will be maintained after the termination date of this Agreement until we determine that the release of the funds to you is prudent, in our best interest, commercially reasonable, and all of your contingent liabilities are fully resolved. Upon expiration of this period, any balance remaining in the Reserve will be paid to you. We will inform you of any charges debited to the Reserve during this period. You hereby grant us a security interest in the Reserve and all proceeds thereof to secure all fees, costs, and charges due in accordance with this Agreement. The Reserve will be separate from the Settlement Account. You shall have no right of withdrawal from the Reserve. If we request, we, you and the financial institution where the Reserve is held will enter into an authenticated agreement requiring the financial institution to abide by our directions with regard to the funds in the Reserve applicable to you. In addition to any regularly required Reserve, we may, at our sole discretion, direct funds to the Reserve and withhold payment to you at any time that we become concerned about any aspect of your business including, but not limited to concerns about the operation, management or financial performance of your business, or concerns about the Products you offer for sale.
You will not at any time during the term of this Agreement, or until all amounts due under this Agreement have been paid in full, grant or pledge any security interest or lien in the Reserve, Settlement Account, or Transaction proceeds to any person, without our prior written consent.
Billing Statements; Disputed Charges
We shall calculate the fees, charges, and expenses payable to us by you hereunder with respect to the immediately preceding payment cycle, and provide you details of the fees, charges, and expenses payable to us. All fees, charges, expenses, and other amounts reflected within your account shall be deemed accurate and final unless you deliver a written notice to us disputing any such amounts within ninety (90) days after you receive a payment cycle credit or debit.
Upon finalization of the payment cycle described above, we may debit or credit the Settlement Account through the use of the Automated Clearing House ("ACH") for all amounts included in the cycle or we may charge the payment method you have on file with 2CO. If these options do not result in the full payment owed to 2CO, you shall, upon demand by us, immediately pay us any remaining amount by ACH or other method specified by us. We reserve the right to deduct all fees, charges, fines, penalties, and other expenses that you are responsible for from the Reserve if the balance in the Settlement Account is insufficient to pay all monies due to us. For any amounts not paid when due, you shall, in addition to the outstanding amount, pay us a servicing fee on the outstanding amount at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law.
We may be holding funds that are due to you under this Agreement, if we are unable to deliver the funds to you because you have not provided us with current contact information. If the inability to contact you to deliver such funds continues for several years, the exact number of which is dependent upon the laws of the state where you are located, we may have to deliver those funds to the applicable governmental agency as unclaimed funds. In that instance, you agree we may assess you such fees and charges, as are permitted by the laws of your state.
5. Pay Periods and Payment Schedules
Standard Pay Periods
A standard pay period is one week in length, commencing at 12:00 p.m. on Thursday and ending immediately prior to 12:00 p.m. on the following Thursday ("Payment Cycle"). Payments due to you, consisting of the sum of the money actually received for all Transactions less all fees and charges due to us ("Purchase Payment") will be paid each Thursday. We reserve the right to modify the Payment Cycle or offer alternative Payment Cycle options to you at any time.
Delay in Payment
We may delay Purchase Payments while we verify certain aspects of any Transaction, including, without limitation, proof of shipment of the Product ("Verification Processes"). We will establish Verification Processes and may, in our discretion, modify them to ensure the quality of products and services you provide.
In the event we, in our discretion, determine that there is a need for an investigation and analysis regarding fraud, violation of Card Association Rules, violation of our Prohibited Products List, or violation of law relating to the Transactions performed on your behalf, we may withhold payment of Purchase Payments to you without penalty, to enable us to complete such investigation and analysis. If it is determined that there has been fraud, violation of Card Association Rules, violation of our Prohibited Products List, or violation of law relating to the Transactions performed on your behalf, we may withhold payment of the Purchase Payments to you indefinitely.
Accounts will not be eligible for a Purchase Payment until the end of the Payment Cycle following the Payment Cycle in which you commenced doing business with us. Accounts also will not be eligible for a Purchase Payment unless and until we confirm that funds for the Transaction have been received and are available for further payment to us.
In no event shall you earn any interest on, or any other form of earnings for, any Purchase Payments or funds held in the Reserve, regardless of the length of time during which we are in possession of such funds.
6. Payment Options
You may elect to have Purchase Payments paid by direct deposit (Ex. ACH, DEFT), by wire, or by check. The fees for each payment option are as described in the Fee Schedule attached as Appendix B to this Agreement under the category Fees for Payment Options.
- An Error occurs when any of the following events take place:
- Return Wire;
- ACH Pass Through; or
- ACH Return.
- Fees for each of these items, per occurrence, will be as described in the Fee Schedule attached as Appendix B to this Agreement under the category Error Fees.
- We may change the amounts indicated herein, at our sole discretion, without prior notice to you. You agree to pay all Wire Transfer Fees in effect at the time you initiate a wire transfer.
- An Error occurs when any of the following events take place:
Claim of Error
In the event you believe that we have committed an error in a payment to you, you shall notify us in accordance with Section 17 of this Agreement within thirty (30) days of the delivery of a statement from us. Your failure to so notify us shall be deemed to be an acceptance of the statement.
This Agreement shall remain in effect from the Effective Date until terminated as provided herein.
8. Disclaimer of Warranties
YOU UNDERSTAND AND AGREE THAT THIS IS A SERVICE AGREEMENT AND THAT WE ARE PROVIDING OUR SERVICES TO YOU "AS IS". 2CO DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO INTERNATIONAL SELLER OR ANY OTHER PERSON, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHERWISE OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY SERVICES OR ANY GOODS PROVIDED BY A THIRD PARTY SERVICE PROVIDER OR BANK.
9. Limitation of Liability
YOU ASSUME ALL LIABILITY FOR YOUR USE OF OUR SERVICES. WE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE, THE SERVICES, THE INABILITY TO USE THE SERVICES, OR THOSE RESULTING FROM ANY PRODUCTS PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
IN NO EVENT SHALL YOU BE ENTITLED TO RECOVER DAMAGES FROM US THAT EXCEED THE SUM OF FEES FOR SERVICES RECEIVED FROM YOU BY US UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES.
WE DO NOT ASSUME ANY LIABILITY FOR YOUR FAILURE TO PERFORM IN ACCORDANCE WITH THIS AGREEMENT OR ANY RESULTS CAUSED BY YOUR ACTS, OMISSIONS OR NEGLIGENCE, A SUBCONTRACTOR OR AN AGENT OF YOURS OR AN EMPLOYEE OF YOURS OR ANY OF YOUR AGENTS OR SUBCONTRACTORS, NOR SHALL WE HAVE ANY LIABILITY FOR CLAIMS OF THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, CLAIMS OF THIRD PARTIES ARISING OUT OF OR RESULTING FROM, OR IN CONNECTION WITH, YOUR PRODUCTS, MESSAGES, PROGRAMS, CALLER CONTRACTS, PROMOTIONS, ADVERTISING, INFRINGEMENT, OR ANY CLAIM FOR LIBEL OR SLANDER OR FOR VIOLATION OF COPYRIGHT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHTS.
YOU ACKNOWLEDGE AND AGREE THAT THE RELATIONSHIP IN CONNECTION WITH THIS AGREEMENT IS WITH 2CO AND 2CO ALONE. ACCORDINGLY, INTERNATIONAL SELLER SHALL SEEK NO RECOURSE AGAINST ANY OF 2CO'S THIRD PARTY SERVICE PROVIDERS AND THIRD PARTY SERVICE PROVIDERS HAVE NO LIABILITY WHATSOEVER TO INTERNATIONAL SELLER, FOR ANY DIRECT OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO SERVICES PERFORMED HEREUNDER.
You agree to indemnify and hold us, Bank, and Third Party Service Providers, as well as our, our Banks, and our Third Party Service Providers employees, officers, agents, shareholders, and directors harmless from any and all claims, losses, damages, costs, expenses (including attorneys' fees), fines, and penalties regardless of whether the same are actual, direct, indirect, special, incidental, consequential, or punitive ("Damages") resulting from or in connection with this Agreement or incurred as a result of, or related to, the causes set forth below:
- Your breach of any warranty or representation;
- Your violation of any law, rule, or regulation;
- Intellectual property infringement claims related to your website or service;
- Reckless or willful misconduct by you and any of your agents, employees, officers, or directors; or
- Claims of third parties arising out of or resulting from, or in connection with your products, services, messages, programs, caller contracts, promotions, advertising, infringement, or any claim for libel or slander.
- We shall retain all funds we have that are attributable to you, including any amounts in the Reserve, until such time as a determination is made as to the amount of damages, costs, and expenses incurred by us. Upon making such determination, we may apply as much of the funds being held as is necessary to reimburse us.
- You agree to indemnify and hold us, Bank, and Third Party Service Providers, as well as our, our Banks, and our Third Party Service Providers employees, officers, agents, shareholders, and directors harmless from any and all claims, losses, damages, costs, expenses (including attorneys' fees), fines, and penalties regardless of whether the same are actual, direct, indirect, special, incidental, consequential, or punitive ("Damages") resulting from or in connection with this Agreement or incurred as a result of, or related to, the causes set forth below:
In no event will we be liable to indemnify any party for any Damages arising directly or indirectly from our Services, even if we are expressly advised of the possibility of such damages.
You may terminate this Agreement at any time upon thirty (30) days prior written notice to us.
We may terminate this Agreement at any time for any reason, or for no reason by providing you with a notice that the Agreement is terminated as of the date of the notice. We may also terminate this Agreement without notice or penalty, if in our sole discretion, such termination is necessary for us to comply with our obligations under any Applicable Law, rule or regulation including, but not limited to, anti-money laundering regulations, the Office of Foreign Assets Control Regulations, or Card Organizations Operating Rules. Our termination of this Agreement pursuant to this subsection shall not be deemed a breach of contract.
You acknowledge that 2CO or Card Organizations may terminate or suspend, at their option and without notice or penalty, your participation in the program contemplated hereunder.
If this Agreement is terminated for cause and/or for an Event of Default, you acknowledge that your business name and the names and other identification of your principals may be reported to the terminated merchant files maintained by the Card Organizations. You expressly agree and consent to such reporting in the event you are terminated as a result of the occurrence of an event of default or for any reason specified as cause by a Card Organization. Furthermore, you agree to waive and hold us harmless from and against, any and all claims, which you may have as a result of such reporting.
Events of Default
In addition to its other rights set forth in the Agreement, 2CO may terminate this Agreement immediately without notice if any of the following events shall occur (each an "Event of Default"):
- In addition to its other rights set forth in the Agreement, 2CO may terminate this Agreement immediately without notice if any of the following events shall occur (each an "Event of Default"):Irregular Card sales by International Seller, excessive Chargebacks, noncompliance with any applicable data security standards, as determined by 2Co or our Third Party Service Providers, any Card Organization or Bank, or an actual or suspected data security breach, or any other circumstances which, in the discretion of 2CO, may increase the risk exposure of such parties or otherwise present a direct or indirect financial or security risk to such parties; or
- A violation by International Seller of any Applicable Law or Card Organization Rule or 2CO's, or our Third Party Service Provider's reasonable belief that termination of this Agreement or suspension of Services is necessary to comply with any law including without limitation the rules and regulations promulgated by the Office of Foreign Assets Control of the U.S. Department of the Treasury.
- Notwithstanding any other provisions of this Agreement, 2CO may terminate this Agreement at any time at the instruction of any Bank, or any Card Organization. Further, this Agreement will automatically and immediately terminate with respect to a particular Card Organization if 2CO is de-registered by such Card Organization.
Payments/Obligations to be Completed After Termination
Upon termination of this Agreement, any outstanding and unpaid fees and charges of yours owed to us shall become immediately due and payable.
In the event that you fail to perform any duty, obligation, or provision contained in this Agreement ("Default"), you agree to pay to us any damages, expenses, and costs, whether directly or indirectly caused, including reasonable attorney's fees incurred by us due to your Default.
Neither the expiration nor termination of this Agreement shall terminate the obligations and rights of the parties pursuant to provisions of this Agreement, which by their terms are intended to survive or be perpetual or irrevocable. Such provisions shall survive the expiration or termination of this Agreement.
Obligation to Pay Own Taxes
You are responsible for the payment of all taxes applicable to the conduct of your business, including, without limitation, state sales tax.
Your Obligation to Pay Taxes Resulting from Our Services
You agree that if additional taxes in the nature of an excise, sales, or use tax are imposed in connection with our Services and paid by us on your behalf, you shall be liable to us in an amount equal to the amount of such tax payment made by us. You authorize us to collect and pay over taxes in the nature of an excise, sales, or use tax on your behalf, if reasonably required to do so by any jurisdiction's taxing authority. We shall have the right to recover from you the amount of any such taxes, related penalties, and interest paid by us with our own funds. You shall also pay us for any related expenses incurred by us, including reasonable attorney's fees, in our collection of any amounts due from you. You acknowledge that 2CO may be required to report to the Internal Revenue Service the total number of transactions and gross amount processed for you by 2CO, per month, for each calendar year, for all the Accounts you own.
13. Force Majeure
Notwithstanding anything to the contrary contained herein, neither we nor any Third Party Service Provider shall be liable to you for any failure or delay on our part to perform, and we shall be excused from performing, any of our obligations hereunder if such failure, delay or nonperformance results in whole or in part from any cause beyond our reasonable control, including, without limitation, any act of God; any fire, flood, or weather condition; any earthquake or other natural disaster; any act of a public enemy, act of terrorism, war, government collapse, government restriction, civil disturbance, riot, explosion, strike or other labor dispute, labor or material shortage, energy crises, blackouts or brownouts, or Internet disruptions; any interruption or shortage of, or failure or delay in, transportation, utilities, networks, material, supplies, equipment, machinery, power, or spare parts; and any act of any military or civil authority.
14. Choice of Law and Forum
This Agreement and any disputes relating thereto shall be construed and enforced in accordance with the laws of the State of Ohio, United States of America, excluding conflicts of law principles that would require application of the law of a jurisdiction outside of Ohio. The United Nations Convention on Contracts for International Sale of Goods (“CISG”) does not apply to this Agreement.
Any controversy or claim arising out of or relating to this Agreement, or breach thereof, will be resolved by final and binding arbitration before a single arbitrator in Columbus, Ohio, USA, in accordance with the principles and rules of the International Center for Dispute Resolution (“ICDR”), and the award rendered by the arbitrator can be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, this agreement to arbitrate shall not be construed to limit the right of 2CO to apply to any court of competent jurisdiction within the United States of America, and elsewhere globally, for injunctive or other equitable or provisional relief to protect its intellectual property, Confidential Information, or other proprietary rights. This arbitration provision shall be deemed self-executing, and, in the event that either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party notwithstanding said failure to appear. The arbitration will be held in English language.
15. Enforcement Activities
Our website and Services may be used only for lawful purposes and in a lawful manner. You may not register under a false name, mask your true identity or the Products you offer to the public, or use an invalid or unauthorized credit or debit card or invalid or unauthorized bank account information. You shall not impersonate any participant or use another participant's information. Fraudulent conduct may be reported to law enforcement, and we may cooperate in any investigation.
We and the Card Organizations have the right, but not the obligation, to monitor any activity and content associated with your website as it relates to the Services, and may investigate any reported violation of our or their policies or complaints and take any action that we or they deem appropriate. Such action may include, but is not limited to, issuing warnings, suspension, or termination of Services. You hereby consent to allow us, the Card Organizations (or their agents or auditors), our Third Party Service Providers, and anyone else we deem necessary to access your website in order that we or they may conduct such monitoring and investigation.
We, our Third Party Service Providers, and others as we deem necessary shall have the right to conduct, during normal business hours and upon reasonable advance notice to you, an onsite audit of your facilities, books, records, and documentation, in any form of media and wherever located, to ensure that such your card acceptance procedures, data security, and fraud controls meet the Card Organizations Operating Rules, our and Third Party Service Provider's standards, and Applicable Law. You must provide us, Bank, and our Third Party Service Providers with all necessary information and assistance required prior to, during, and following any such audit.
In addition to any other remedies available to Payment 2CO under this Agreement, International Seller agrees that should any termination for cause and/or Event of Default occur under the Agreement (whether or not formally declared), 2CO may, with or without notice, amend this Agreement or cause processing and/or settlement funding to be suspended, until it has had reasonable opportunity to investigate such event
Disclosure of Information
2CO may, in its sole discretion, without any liability to you or any third party, take any actions it deems necessary or appropriate to comply with any Applicable Law, order or requirement of a court, administrative agency, or other government entity.
2CO and the Card Organizations may report any activity that we, or they, suspect is a violation of any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect our systems and those of the Card Organizations, all sellers, and buyers, or to ensure the integrity and operation of our and their business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
You authorize us to disclose Card Transaction data and other information relating to you, any Guarantor and each of their owners, to the Card Organizations, current and prospective Card issuers, current and prospective acquirers, regulatory authorities, and other entities to whom we, or any such entity we deem appropriate, including, without limitation, in connection with the performance of their various obligations hereunder or under the Card Association Operating Rules or Applicable Law. Without limiting the generality of the foregoing, it is understood and agreed that a file for terminated merchants referred to herein as "MATCH" (whether referred to by the applicable Card Organizations as "MATCH" or by any other name) is maintained by Card Organizations containing the names of any business (and its principals) which have been terminated for certain reasons, including, without limitation, fraud, depositing excessive counterfeit paper, excessive unauthorized Transactions, depositing paper for others (laundering), bankruptcy, or breach of its agreement regarding Card processing. You acknowledge that we are required to report you to the "MATCH" if this Agreement is terminated for any of the foregoing reasons or other reasons as may be specified by the Card Organizations. You agree and consent to such reporting in the event of such termination of this Agreement.
Unless specifically authorized by the buyer, you shall use the personal information of buyers solely for the purposes set forth in this Agreement. You shall not use buyer personal information for purposes of unsolicited e-mail or spamming, harassment, invasion of privacy, or other objectionable conduct.
In addition to any confidentiality obligations set forth in Section 21, unless International Seller obtains consents from 2CO and each applicable Card Organization, Issuer, and Cardholder, International Seller must not use, disclose, store, sell, or disseminate any Cardholder information obtained in connection with a Card transaction (including the names, addresses and Card account numbers of Cardholders) except for purposes of authorizing, completing and settling Card transactions, and resolving any Chargebacks, Retrieval Requests, or similar issues involving Card transactions, other than pursuant to a court or governmental agency request, subpoena or order. International Seller shall use proper controls for and limit access to, and render unreadable prior to discarding, all records containing Cardholder account numbers, and Card imprints. International Seller may not retain or store Magnetic Stripe data or Card Validation Codes after a transaction has been authorized. If International Seller stores any electronically captured signature of a Cardholder, International Seller may not reproduce such signature except upon 2CO's specific request.
You shall hold personal information of buyers in confidence and shall not disclose such information to third parties. You shall take adequate technical and organizational security measures to protect personal information of buyers against unlawful forms of use, disclosure, or other forms of processing. These obligations shall be in addition to, and not in limitation of, your obligations set forth or referenced elsewhere herein with respect to the privacy, confidentiality, security, and retention/non-retention of Cardholder and Card Transaction information.
You shall cooperate with 2CO's efforts to monitor your compliance with your obligations under this Agreement. 2CO shall have the right to make ongoing requests for additional documentation and information, and to make ongoing requests to conduct any audits, tests, or reports related to your obligations under this Agreement or to review and obtain copies of such activities.
You shall retain the personal information of buyers only for as long as necessary to perform your obligations under this Agreement, and shall comply with Applicable Law and all Operating Rules pertaining to the non-retention of Card Transaction and Cardholder data.
During the Term of this Agreement, You shall not assign, sell, or exchange, this Agreement without the prior written consent of 2CO.
Upon our request, you agree to give us access to any personal information supplied to you by us, for us, or on our behalf.
Notwithstanding any other provisions of this Agreement, within ninety (90) days following termination of this Agreement, you shall, at our direction: (a) comply with any other agreement made between the parties concerning the return or destruction of data; (b) return all personal data passed to you by us for processing; or (c) on receipt of instructions from us, erase the data using commercially reasonable methods and indemnify us for any harm resulting from such failure, unless prohibited from erasing by any Applicable Law or order.
Attn: Legal Department
855 Grandview Avenue
Columbus, Ohio 43215, U.S.A.
To the last address you provided to us.
To the last e-mail address you provided to us.
Method of Delivery and Date of Receipt
Any written notice under this Agreement, which shall include e-mail to you from us, shall be deemed given and delivered upon the earlier of: (a) actual receipt; or (b) five (5) days after being deposited in the United States mail, postage prepaid, and addressed to the party to whom the notice is being sent as set forth in Section 17.A.; or (c) one (1) business day after being sent by e-mail or other electronic communication from us to you at the e-mail address described in Section 17.A.
Notice of New Address
Either party may communicate a change in its mailing address by notifying the other party in accordance with Sections 17.A and/or 17.B. in writing, including an electronic communication from us to you, which sets forth the old mailing address and provides the new mailing address.
The headings herein are inserted as a matter of convenience only and do not define, limit, or describe the scope of this Agreement or the intent of the provisions hereof.
19. Severability of Provisions
Each provision of this Agreement shall be considered severable; and if, for any reason, any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement that are valid.
20. Intellectual Property
Except for the rights expressly granted herein, this Agreement does not transfer any intellectual property or technology of ours to you and all rights, title and interest in such intellectual property and technology, whether developed, licensed or owned by us shall remain with us. You agree that you will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets of ours.
In addition to the obligations you have under Section 15 with respect to the protection of the privacy of buyer information, both parties shall protect the confidentiality of the confidential information of the other as described in this Section 21.
Definition of Confidential Information
Confidential Information shall include, without limitation: (i) matters of a technical nature such as trade secret processes or devices, data formulas, inventions and specifications; (ii) matters of a business nature such as information about costs, profits, pricing policies, markets, sales, suppliers, employees, product plans and marketing plans or strategies; (iii) other information of a similar nature not generally disclosed by a party to the public; (iv) information containing confidential or proprietary notices; and (v) confidential or proprietary information of third parties disclosed to a party under a non-disclosure agreement and appropriately identified as confidential or proprietary.
Protection of Confidential Information
Each party shall maintain the confidentiality of the other's Confidential Information and will not disclose such Confidential Information without the prior written consent of the other party. In addition, neither party shall use the other party's Confidential Information except has contemplated herein. Neither party shall use the name, logo, or trademarks of the other without prior written approval of the other.
International Seller acknowledges that it will not obtain ownership rights in any information relating to and derived from Card transactions. Cardholder account numbers, personal information and other Card transaction information, including any databases containing such information, may not be sold or disclosed to a Person as an asset upon a bankruptcy, insolvency or failure of International Seller's business. Upon a bankruptcy, insolvency, or failure of International Seller's business, if requested, all Card transaction information must be returned to 2CO or acceptable proof of the destruction of all Card transaction information must be provided to 2CO.
International Seller agrees that 2CO, Third Party Service Providers, or Bank may obtain relevant information from any applicable telecommunications provider utilized by International Seller, as necessary to investigate any allegation of fraud, suspected fraud, or other actual or alleged wrongful act by International Seller in connection with the Services.
Assignment of Card Organization Marks
International Seller shall not assign to any Person, the rights to use the Marks of the Card Organizations or the Marks of Third Party Service Provider or Bank.
International Seller acknowledges that breach of the restrictions on use or disclosure of any of 2CO's confidential information would result in immediate and irreparable harm to 2CO, and money damages would be inadequate to compensate for that harm. 2CO shall be entitled to equitable relief, in addition to all other available remedies, to redress any breach.
2CO acknowledges that the disclosure of the other International Seller's Confidential Information would cause substantial harm to International Seller that could not be remedied by the payment of damages alone. Accordingly, International Seller will be entitled to preliminary and permanent injunctive relief for any breach or threatened breach of this Section 21 by 2CO.
22. Third Party Beneficiaries
INTERNATIONAL SELLER AND 2CO AGREE THAT THIRD PARTY SERVICE PROVIDERS AND BANK ARE INTENDED THIRD PARTY BENEFICIARIES OF THIS AGREEMENT AND MAY ENFORCE IT AGAINST INTERNATIONAL SELLER AS IF THEY WERE PARTIES TO THIS AGREEMENT.
You agree to be bound by any electronic affirmation, assent, or agreement transmitted through our website. You represent that you have the authority to agree to this Agreement. You agree that any decision or action to click on an "I agree", "I consent", or other similarly worded button or entry field using a mouse, keystroke or other computer device, will indicate your agreement and will be legally binding and enforceable and the legal equivalent of your handwritten signature.
You acknowledge: (a) that you have read and understood this Agreement; (b) that this Agreement has the same force and effect as a signed agreement; and (c) that this Agreement constitutes the entire agreement between us and you and governs your use of the Services, superseding any prior agreements between you and us pertaining to the Services.
The relationship between you and us shall be that of independent contractors. Neither party will be considered an agent, employee, joint venturer, or partner of the other, unless otherwise specifically provided herein and shall have no authority to act on behalf of the other except as specifically set forth in this Agreement.
Appendix A - Definitions
As used in this Agreement, the following terms mean as follows:
Applicable Law: All federal, state and local statutes, ordinances, laws, regulations, and executive, administrative, and judicial orders applicable to the Agreement, the transactions, or other matters contemplated under the Agreement (including, without limitation, the rules and regulations promulgated by the Office of Foreign Assets Control of the U.S. Department of the Treasury), and all amendments thereto; and with respect to Bank, also guidance by its financial institution regulators.
Bank: A financial institution that is a member of the Card Organizations and provides Card Organization sponsorship for Card transactions submitted by 2CO for processing hereunder.
Card: See either Credit Card or Debit Card.
Cardholder: The Person whose name is embossed on a Card (or Debit Card, as applicable) and any authorized user of such Card.
Card Organization: Any entity formed to administer and promote Cards, including without limitation MasterCard Worldwide ("MasterCard"), Visa U.S.A., Inc. ("Visa"), DFS Services LLC ("Discover Network") and any applicable debit networks.
Card Organization Rules: The rules, regulations, releases, interpretations, and other requirements (whether contractual or otherwise) imposed or adopted by any Card Organization and related authorities, including without limitation, those of the PCI Security Standards Council, LLC, and the National Automated Clearing House Association (including, with respect to EBTs, the Quest Operating Rules).
Chargeback: A Card transaction (or disputed portion) that is reversed by the Issuer.
Credit: A refund or price adjustment given for a previous purchase transaction.
Credit Card: A device bearing a valid Card Organization Mark and authorizing the Cardholder to buy goods or services on credit.
Debit Card: See either PIN Debit Card or Non-PIN Debit Card.
Issuer: The financial institution or Card Organization which has issued a Card to a Person.
Marks: Names, logos, emblems, brands, service marks, trademarks, trade names, tag lines, or other proprietary designations.
Non-PIN Debit Card: A device with a Card Organization Mark that is tied to a Cardholder's account or a prepaid account and which is processed without the use of a PIN.
Person: A third party individual or entity, other than the International Seller.
PIN: A Personal Identification Number entered by the Cardholder to submit a PIN Debit Card transaction.
PIN Debit Card: A device bearing the Marks of ATM networks (such as NYCE or Star) used at an International Seller location by means of a Cardholder-entered PIN in the International Seller PIN Pad.
Reserve Account: An account established and funded pursuant to terms set forth in this Agreement to serve as security for amounts owed by International Seller to 2CO under this Agreement.
Retrieval Request/Transaction Documentation Request: A request for documentation related to a Card transaction such as a copy of a Sales Draft or other transaction source documents.
Sales Draft: Evidence of a purchase, rental or lease of goods or services by a Cardholder from, and other payments to, International Seller using a Card, regardless of whether the form of such evidence is in paper or electronic form or otherwise, all of which must conform to Card Organization Rules and Applicable Law.
Services: The authorization, processing, and settlement services provided by 2CO to International Seller pursuant to the terms and conditions set forth in this Agreement.
Settlement Account: An account or account(s) at a financial institution designated by International Seller as the account to be debited and credited by 2CO for Card transactions, fees, Chargebacks, and other amounts due under or in connection with this Agreement.
Third Party Service Provider: Any Person engaged to provide services involving or relating to (i) access to Cardholder data transaction data or information related to either Cardholder data or transaction data or (ii) PIN encryption, including without limitation, Encryption Service Organizations (ESOs), also referred to as "Third Party Service Provider."
Appendix B - Fee Schedule
Albania, Andorra, Armenia, Austria, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom, Vatican City (Holy See)
All other countries