© 2020 A PointCheckout.com Company
The Merchant Terms and Conditions described here in constitute an integral part of the Merchant Services Agreement (“Agreement”) 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 “Merchant”, “you”, or “your”), PointCheckout Holding Company Limited organized under the laws of Abu Dhabi Global Market having its registered office at 2406 ResCo-work02, Al Sila Tower, Al Maryah Island, Abu Dhabi, United Arab Emirates (“PointCheckout”), and its third-party payment processor (“Processor”) (collectively with PointCheckout referred to as “we”, “our” or “us”).
PointCheckout's products and services are provided by PointCheckout Holding Company Limited, its subsidiaries, and its affiliates. Please read the following Merchant Terms and Conditions carefully before registering on, accessing, browsing, downloading or using the PointCheckout website located at pointcheckout.com, and all associated sites linked to pointcheckout.com, or any of the PointCheckout mobile applications or any similar platform (hereinafter collectively, the “PointCheckout Platform”).
If you are entering into this Agreement on behalf of a corporation or other legal entity, you represent and warrant that you have the legal authority to bind such entity to the terms and conditions contained in this Agreement, in which case the terms "you", "your", "user" or "customer" shall refer to such corporate entity. If, after your electronic acceptance of this Agreement, PointCheckout finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. PointCheckout shall not be liable for any loss or damage resulting from PointCheckout’s reliance on any instruction, notice, document or communication reasonably believed by PointCheckout to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice document or communication, PointCheckout reserves the right (but undertakes no duty) to require additional authentication from you. You further agree to be bound by the terms of this Agreement for transactions entered into by you, anyone acting as your agent, and anyone who uses your account or the Services, whether or not authorized by you.
SECTION A: THE POINTCHECKOUT PAYMENTS SERVICES
1. OUR ROLE
The PointCheckout Payments service (“PointCheckout Payments” or “Service”) is a service that helps you accept and process credit card, debit card and other types of card payments or online payment methods (collectively “payments”) from your customers in exchange for your products and services for internet-based transactions (“Transactions"). The Processor provides the payment services to you on behalf of PointCheckout. PointCheckout reserves the right to change the Processor, subject to the terms of our agreement with Processor. Neither PointCheckout nor the designated Processor are a bank or a money services business (“MSB”) nor do they offer banking or MSB services. In addition, we do not assume any liability for the products or services purchased by and sold to customers using our Service. You will be required to register for a Payments Account to use the Payments Services. This account allows you to review card transactions that are in the process of settling from Payment Networks (as defined below) and us to your designated settlement bank account.
2. OUR SERVICES
PointCheckout and Processor provide the payment software to enable you to use the Payments Services. We reserve the right to require you to install or update any and all software updates to continue using the Service. The foregoing offering is separate and distinct from any other services that are provided by PointCheckout under separate terms and conditions, which are independent of this Agreement. Our Payments Services may also include tools to help you manage recurring and subscription billing charges for your products and services. It is your responsibility to obtain your customers’ consent to be billed on a recurring basis in compliance with applicable legal requirements and Visa Europe Ltd, Visa U.S.A., Inc., Visa Canada Inc. and Visa International (collectively, “Visa”) and MasterCard International Incorporated (“MasterCard”), Discover, American Express or other applicable card network (collectively, the “Payment Networks”) payment rules.
3. AUTHORIZATION FOR HANDLING OF FUNDS
By accepting this Agreement, you authorize PointCheckout to hold, receive, and disburse funds on your behalf when such funds from your card transactions settle from the Payment Networks. You further authorize Pointcheckout to determine the manner of how your card transaction settlement funds should be disbursed to you (such as by wire transfer or sending a paper check payable to you) and the timing of such disbursements. You also authorize PointCheckout to hold settlement funds in a deposit account at a local financial institution pending disbursement of the funds to you in accordance with the terms of this Agreement. You agree you are not entitled to any interest or other compensation associated with the settlement funds held in the deposit account or pending settlement to your designated bank settlement account, that you have no right to direct that deposit account, and that you may not assign any interest or grant any security interest or lien in the settlement funds or the deposit account. From time to time, we may make available to you, information in the Payments Account regarding anticipated settlement amounts that we have received on your behalf from the Payment Networks and are being held by us pending settlement. The settlement information reflected in the Payments Account is for reporting and informational purposes only and does not create any ownership or other rights in settlement funds, which are provisional credits only, until such funds are credited to your designated bank settlement account. Your authorizations set forth herein will remain in full force and effect until your Payments Account is closed or terminated.
4. PAYMENT METHODS
The PointCheckout payment processing service supports the most popular payment cards with a Payment Network logo, including credit, debit, pre-paid, or gift cards. The PointCheckout payment processing service may also support other payment methods such as Apple Pay, Google Pay, JoMoPay, PayPal, reward point payments, or other local payment methods. PointCheckout will only process card transactions that have been authorized by the applicable Payment Network, card issuer, or Processor. You are solely responsible for verifying the identity of users and of the eligibility of a presented payment card used to purchase your products and services, and PointCheckout does not guarantee or assume any liability for transactions authorized and completed which may later be reversed or charged back (See Chargeback’s section below). You are solely responsible for all reversed or charged back transactions, regardless of the reason for, or timing of, the reversal or chargeback. PointCheckout may add or remove one or more types of payments as a supported payment card any time without prior notice to you.
5. CUSTOMER SERVICE
PointCheckout will use its commercially reasonable efforts to provide you with customer support to resolve any issues relating to your Payments Account, your card payment processing and use of our software, and the distribution of funds to your designated bank settlement account. You assume the 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 Service.
6. TAXES AND REPORTING
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. You acknowledge that we may make certain reports to tax authorities regarding transactions that we process and merchants to which we provide card payment services. You hereby indemnify and hold PointCheckout harmless from and against any and all liability related to Taxes and filings made by PointCheckout in respect thereof. You agree that we may send you any tax-related information electronically.
7. 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.
PointCheckout and Processor 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 and accidental loss or modification. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such personal information for improper purposes.
9. DATA SECURITY
You are fully responsible for the security of data in your possession (including your website, store, or any other medium). 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 (defined as “Data”) in your possession. You agree that at all times you shall be compliant with the Payment Card Industry Data Security Standards (“PCI-DSS”) and the Payment Application Data Security Standards (“PA-DSS”), as applicable.
10. AUDIT RIGHT
If we believe that a security breach or compromise of data has occurred, PointCheckout may require you to have a third party auditor that is approved by PointCheckout conduct a security audit of your systems and facilities and issue a report to be provided to PointCheckout, financial banks, and the Payment Networks.
Your privacy and the protection of your data are very important to us. PointCheckout its Processor to provide the PointCheckout Payments, and both PointCheckout and its Processor may collect or receive certain personal data about you and your customers. For more information about PointCheckout’s privacy practices, you should review https://www.pointcheckout.com/en/legal/privacy/privacy-policy. Reviewing these policies will help you understand how we collect, use, and safeguard the information you provide to us.
12. PRIVACY OF OTHERS
You represent to us that you are in compliance with all applicable privacy laws, you have obtained all necessary rights and consents under applicable law to allow PointCheckout and/or the Processor to collect, use, retain, and disclose any Cardholder Data that you provide to, or authorize 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).
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.
13. 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.
14. SUSPICION OF UNAUTHORIZED OR ILLEGAL USE
We reserve the right to not provide the Payments Services (including authorizing or settling) in respect of any Transaction you submit that we believe, in our sole discretion, is in violation of this Agreement, any other PointCheckout or Processor agreement, or exposes you, PointCheckout, 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.
15. 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 Network Rules for Visa, MasterCard, and American Express are available on the Internet at the following links: Visa, MasterCard and American Express. 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, with notice to you, as may be necessary to comply with the Payment Network Rules.
16. DISCLOSURES AND NOTICES
You agree that PointCheckout can provide disclosures and notices regarding the Payments Services to you by posting such disclosures and notices on our website, emailing them to the email address listed in your Payments Account, or mailing them to the address listed in your Payments Account. 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 posted to our website or emailed to you unless we receive notice that the email was not delivered.
SECTION B: GETTING A PAYMENTS ACCOUNT
PointCheckout Payments is only made available to persons in PointCheckout territories 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 PointCheckout Payments for your business, you will first have to register for a PointCheckout Payments Service account (“Payments Account”). When you register for a Payments Account, we will collect information such as your name, your business or trade name, your address, email, phone number, business identification or registration number, banking information, and certain other information that we require. We may also collect personal information (including name, birth date, 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 provide information about the owners or principals of the business, 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 PointCheckout Service Account, you are also registering for a Processor Account under the Processor Terms and that you are simultaneously providing your information to PointCheckout for the purpose of opening a Pointcheckout Service Account, and to the Processor for the purpose of establishing your Processor Account.
2. 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") (e.g. MyStore Online Widgets) and a billing descriptor. These two fields and your site URL (e.g. www.mystore.com) 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.
3. VERIFICATION AND UNDERWRITING
To verify your identity, we will require additional information including your business EIN, TRN or Tax ID, social security number, and date of birth. We may also ask for additional information to help verify your identity and assess your business risk including business invoices, government-issued identification, business licenses, or 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. PointCheckout may use your information to apply for card merchant acquiring accounts on your behalf with certain Payment Networks (such as American Express).
After we have collected and verified all your information, PointCheckout will review your account and determine if you are eligible to use the Payments Services. PointCheckout may also share your information with our payment processors and partner financial institutions, each of which may also make a determination regarding your eligibility. We will notify you once your 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 PointCheckout Service Account.
You agree that PointCheckout is permitted to contact and share information about you and your application (including whether you are approved or declined), and your Payments Account with the payment processors. 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.
4. PROHIBITED BUSINESSES
The following categories of businesses and business practices are prohibited from using the Payments Services (“Prohibited Businesses”). Prohibited Business categories may be imposed by law or through the Payment Network Rules, by PointCheckout or the requirements of the Processor’s Financial Services Providers. The types of businesses listed below are representative but not exhaustive. If you are uncertain as to whether your business is a Prohibited Business or have questions about how these requirements apply to you, please contact us. We may add to or update the Prohibited Business list at any time.
FINANCIAL AND PROFESSIONAL SERVICES
Investment and credit services
Securities brokers; mortgage consulting or debt reduction services; credit counseling or repair; investment services; real estate opportunities; lending instruments
Money and legal services
Financial institutions, money transmitters and money services businesses, check cashing, wire transfers, money orders; currency exchanges or dealers; bill-pay services; crowdfunding; insurance; bail bonds; collections agencies; law firms collecting funds for any purpose other than to pay fees owed to the firm for services provided by the firm (e.g., firms cannot use Stripe to hold client funds, collection or settlement amounts, disputed funds, etc.)
Virtual currency or stored value
Virtual currency that can be monetized, resold, or converted to physical or digital products and services or otherwise exit the virtual world (e.g., Bitcoin); cryptocurrency mining equipment; initial coin offerings; digital wallets, sale of stored value or credits maintained, accepted and issued by anyone other than the seller
IP INFRINGEMENT, REGULATED OR ILLEGAL PRODUCTS AND SERVICES
Adult content and services
Pornography and other obscene materials (including literature, imagery, and other media) depicting nudity or explicit sexual acts; sites offering any sexually-related services such as prostitution, escorts, pay-per-view, adult live chat features; sexually-oriented items (e.g., adult toys); adult video stores and sexually-oriented massage parlors; gentleman’s clubs, topless bars, and strip clubs; sexually-oriented dating services
Counterfeit or unauthorized goods
Counterfeit goods; unauthorized sale or resale of a brand name or designer products or services; sale of goods or services that are illegally imported or exported
Lotteries; bidding fee auctions; sports forecasting or odds making for a monetary or material prize; fantasy sports leagues with cash prizes; internet gaming; contests; sweepstakes; games of chance including legal or illegal forms of gambling, internet gambling, sweepstakes and contests with buy-in or cash prize; charity sweepstakes and raffles for the explicit purpose of fundraising
Intellectual property or proprietary rights infringement
Sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder; any product or service that directly infringes or facilitates infringement upon the trademark, patent, copyright, trade secrets, or proprietary or privacy rights of any third party; use of PointCheckout intellectual property without express consent from PointCheckout; use of the PointCheckout name or logo, including use of PointCheckout trade or service, or in a manner that otherwise harms PointCheckout or the PointCheckout brand; any action that implies an untrue endorsement by or affiliation with PointCheckout.
Regulated or illegal products or services
Cannabis dispensaries and related businesses; sale of tobacco, e-cigarettes, and e-liquid; online pharmacies; prescription-only products including card-not-present pharmaceuticals; peptides and research chemicals; fake references or ID-providing services; age-restricted goods or services; weapons and munitions; gunpowder and other explosives; fireworks and related goods; toxic, flammable, and radioactive materials; products and services with varying legal status on a state-by-state basis; goods or services, the sale of which is illegal under applicable law in the jurisdictions to which your business is targeted or directed
Use of the Payments Services or use of PointCheckout Payments in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including any person/entity on government sanctions lists
PRODUCTS OR SERVICES THAT ARE OTHERWISE PROHIBITED BY LAW OR OUR FINANCIAL PARTNERS
Engaging in any form of licensed or unlicensed aggregation of funds owed to third parties, factoring, or other activities intended to obfuscate the origin of funds; payment facilitation
Any equipment designed for making or using drugs, such as bongs, vaporizers, and hookahs
Bankruptcy lawyers; remote technical support; psychic services; essay mills; chain letters; door-to-door sales; medical benefit packages; telemedicine and telehealth services; travel reservation services and clubs; airlines; cruises; timeshares; circumvention, jamming and interference devices; prepaid phone cards, phone services; telemarketing, offering substantial rebates or special incentives as an inducement to purchase products or services; telecommunications manipulation equipment; forwarding brokers; negative response marketing; subscriptions over one year; extended warranties; government grants; embassy, foreign consulate, or other foreign governments; charities without proper registration; credit card and identity theft protection; the use of credit to pay for lending services; any businesses that we believe poses elevated financial risk, legal liability, or violates card network or bank policies; any business or organization that a. engages in, encourages, promotes, or celebrates unlawful violence or physical harm to persons or property, or b. engages in, encourages, promotes or celebrates unlawful violence toward any group based on race, religion, disability, gender, sexual orientation, national origin, or any other immutable characteristic
Pyramid schemes network marketing and referral marketing programs
Nutraceuticals, pseudo-pharmaceuticals and other products that make health claims that have not been approved or verified by the applicable local and/or national regulatory body
Social media activity
Sale of Twitter followers, Facebook likes, YouTube views, Instagram followers, and other forms of social media activity
Substances designed to mimic illegal drugs
Sale of a legal substance that provides the same effect as an illegal drug (e.g., salvia, kratom)
Use of PointCheckout Payments in a manner inconsistent with its intended use or as expressly prohibited in the Processor Terms
Use of PointCheckout Payments principally as a virtual terminal (e.g., submitting card transactions by manually inputting card information); processing where there is no bona fide good or service sold, or donation accepted; card testing; evasion of card network chargeback monitoring programs; cross-border acquiring; sharing cardholder information with another merchant for payment cross-sell product or service
Video game or virtual world credits
Sale of in-game currency unless the merchant is the operator of the virtual world
UNFAIR, PREDATORY, OR DECEPTIVE PRACTICES
Get rich quick schemes
Investment opportunities or other services that promise high rewards
Mug shot publication or pay-to-remove sites
Platforms that facilitate the publication and removal of content (such as mug shots), where the primary purpose of posting such content is to cause or raise concerns of reputational harm
Sale or resale of a service without added benefit to the buyer; resale of government offerings without authorization or added value; sites that we determine in our sole discretion to be unfair, deceptive, or predatory towards consumers
SECTION C: PROCESSING CARD TRANSACTIONS AND RECEIVING YOUR FUNDS
1. PROCESSING CARD TRANSACTIONS
You agree that you will honor all eligible cards presented for payment by your customers for your goods and services in accordance with the Payment Network rules, this Agreement, and any operating guides that we may provide you from time to time. You agree that you will obtain an authorization from the Payment Network(s) for each card transaction, as required under the Payment Network rules, and will not submit a card transaction for settlement where there is a negative authorization or the card is otherwise expired. You acknowledge that the existence of an affirmative authorization from us or the Payment Networks does not mean that a particular card transaction will not be subject to Chargeback, Reversal, or Claim at a later date.
You will not impose any fee or surcharge on a customer that seeks to use an eligible payment card. You will provide a receipt to the customer at the conclusion of the purchase transaction that includes all information required under Payment Network rules and applicable law.
You will maintain appropriate records of all card transactions for a period of at least two (2) years from the date of the transaction.
You will display all Payment Network marks in accordance with the rules and procedures of the Payment Networks and will use such marks only to indicate that you accept their cards for payment.
2. PAYOUTS AND TRANSACTION HISTORY
We will pay out funds settling from the Payment Networks to your designated bank settlement account in the amounts actually received (less our Fees as defined below) for card transactions submitted to our Payments Services. The payouts will be made to the bank account (“Bank Account”) you provide for your Payments Account. The Bank Account must be an account located in the territory in which you are operating and held in the name of the business. You are responsible for the accuracy and correctness of the information regarding your Bank Account. Funds for any given transaction will not be transferred to your Bank Account until the transaction is deemed complete. Transactions will be deemed complete when we have received funds settling from the Payment Networks and when we or our processing financial institutions have accepted such funds. The actual timing of the transfers to your Bank Account of the settling funds will be subject to the Payout Schedule as defined below.
Notwithstanding the foregoing, you acknowledge that all credits for funds provided to you are provisional and subject to reversal including without limitation if there are adjustments for inaccuracies and errors (including rejects) and Chargeback’s, Reversals or Claims in accordance with this Agreement and the Card Network payment rules, whether or not a transaction is charged back by the issuer of the Card or the Cardholder. Accordingly, you authorize us to initiate reversal or adjustment (debit or credit) entries to the Bank Account and to initiate or suspend such entries in accordance with this Agreement as may be necessary to grant or reverse provisional credit for any transaction.
After each payout of card settlement funds to your Bank Account, we will update information in your Payments Account to reflect settlement. Information regarding your card transactions processed and settled with the Payments Services (“Transaction History”) will be available to you when you log in to our website or merchant mobile application using your Payments Account credentials. Except as required by law, you are solely responsible for compiling and retaining permanent records of all transactions and other data associated with your Account, your Transaction History, and your use of the Payments Service.
3. PAYOUT SCHEDULE
Payout schedule refers to the time it takes for us to initiate a transfer to your Bank Account of settlement funds arising from card transactions processed through the Payments Service (“Payout Schedule”). Once your bank account information has been reviewed, PointCheckout will initiate a transfer of settlement funds (net Fees, chargebacks, and other funds owed to us for any reason) in accordance with the Payout Schedule, the terms of which will be made available to you when you log in to our website using your Payments Account. The settlement funds should normally be credited to your Bank Account within 1-2 days of us initiating the payout. We are not responsible for any action taken by the institution holding your Bank Account that may result in some or all of the funds not being credited to your Bank Account or not being made available to you in your Bank Account. You can contact PointCheckout to inquire about changing the timing of your Payout Schedule. Upon submitting a request, you will be informed of the process and requirements for PointCheckout to review your Payout Schedule.
PointCheckout reserves the right to change the Payout Schedule or suspend payouts to your Bank Account should we determine it is necessary due to pending disputes, excessive or anticipated excessive Chargebacks or refunds, or other suspicious activity associated with your use of the Service or if required by law or court order.
4. RECONCILIATIONS AND ERRORS
Your Transaction History will be available to you when you log in to our website or merchant mobile application using your Payments Account. Except as required by law, you are solely responsible for reconciling your Transaction History with your actual card payment transactions. You agree to notify us of any discrepancies arising from such reconciliation and verification. We will investigate any reported discrepancies and attempt to rectify any errors that you or we discover. In the event you are owed money as a result of the discrepancy, we will transfer funds to your Bank Account in the next scheduled payout. Your failure to notify us of an error or discrepancy in your Transaction History within sixty (60) days of when it first appears on your Transaction History will be deemed a waiver of any right to amounts owed to you in connection with any such error or discrepancy in processing your card payments.
If you submit or cause us to process transactions erroneously, you agree to contact us immediately. We will investigate any reported errors and attempt to rectify any errors that you or we discover by crediting or debiting your Service Account as appropriate. PointCheckout will only correct transactions that you process incorrectly if and when 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.
5. REFUNDS AND RETURNS
By accepting these terms of service, you agree to submit any and all refunds and adjustments for returns of your products and services through the Payments Services to the Cardholder’s card in accordance with the terms of this Agreement and Payment Network Rules. Payment Network Rules require that you will (i) maintain a fair return, cancellation or adjustment policy; (ii) disclose your return or cancellation policy to customers at the time of purchase, (iii) not give cash refunds to a customer in connection with a Card sale, unless required by law, and (iv) not accept cash or any other item of value for preparing a Card sale refund.
Full refunds must be for the exact dollar amount of the original transaction including tax, handling charges, and other charges. The refund amount may not exceed the original sale amount except by an amount equal to any reimbursements to customers for postage costs incurred for product returns. Refunds processed through the Payments Services must be submitted within one hundred and eighty (180) days of the original transaction but in all cases, within three (3) days of approving the Cardholder refund.
For processed refunds, we will deduct the refund amount (including any applicable Fees) from (i) settlement funds owed to you from the processing of other card transactions, or (ii) funds in any Reserve Account. In the event that funds are insufficient funds to complete the refund, you agree to pay all funds owed to us upon demand. You are solely responsible for accepting and processing returns of your products and services; we have no responsibility or obligation for processing such returns.
A Chargeback (defined below in Section D(6)) is typically caused when a customer disputes a charge that appears on their bill. A Chargeback may result in the reversal of a transaction, with the amount charged back to you. You can be assessed Chargebacks for (i) customer disputes, (ii) unauthorized or improperly authorized transactions, or (iii) transactions that do not comply with Payment Network Rules or the terms of this Agreement or are allegedly unlawful or suspicious, or (iv) any reversals for any reason by the Network, our processor or acquiring bank, or the Cardholder bank.
When a Chargeback is issued, you are immediately liable to PointCheckout for the full amount of payment of the Chargeback plus any associated Fees, fines, expenses, or penalties (including those assessed by the Payment Networks or our payment processors). You agree that we may recover these amounts by debiting your Reserve Account or setting off any amounts owed to you by us. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of any unpaid Chargebacks unpaid by you.
Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a customer’s complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur.
7. CONTESTING YOUR CHARGEBACKS
You or PointCheckout may elect to contest Chargebacks assessed to your account. PointCheckout 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 agree to provide us with the necessary information, in a timely manner, and at your expense, to investigate or help resolve any Chargeback. You also 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 disputes. 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 favor, 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.
8. EXCESSIVE CHARGEBACKS
At any point, PointCheckout, the Payment Networks, or our payment processor(s) may determine that you are incurring excessive Chargebacks. Excessive Chargebacks may result in additional fees, penalties, or fines. Excessive Chargebacks may also result in additional controls and restrictions to your use of the Service, including without limitation, (i) changes to the terms of your Reserve Account, (ii) increases to your applicable Fees, (iii) delays in your Payout Schedule, or (iv) possible suspension or termination of your Service Account and the Service. The Networks may also place additional controls or restrictions as part of their own monitoring programs for merchants with excessive Chargebacks.
9. POINTCHECKOUT FEES
You agree to pay the Fees (“Fees”) assessed by us to you for providing the payment services described in this Agreement. These fees will be calculated pursuant to the Fee Schedule linked to here and incorporated into this Agreement.
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, subject to a thirty (30) day notice period to you in accordance with Section A16. If you continue to use the Payments Services for such thirty (30) days, 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.
10. OUR COLLECTION RIGHTS
To the extent permitted by law, we may collect any obligations you owe us under this Agreement by deducting 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 transactions. If the settlement amounts or Reserve Account are not sufficient to meet your obligations to us, we may charge or debit the bank account or credit card registered in your Service 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 PointCheckout by you. Such communication may be made by PointCheckout or by anyone on its behalf, including, but not limited to, a third-party collection agent.
Funds held in reserves are amounts of money set aside to cover Chargebacks, refunds, or other payment obligations under this agreement (a “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 your transaction is 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 payouts made or due to you for Transactions submitted to the Payments Services; or, (ii) other sources of funds associated with your PointCheckout Payments Account; or, (iii) requesting that you provide funds to us for deposit to the Reserve Account.
12. SECURITY INTEREST
You grant us a lien and security interest in the Reserve Account, all Card transactions (including future Card transactions), any rights to receive credits or payments under this Agreement, and all deposits and other property of yours possessed or maintained by us on your behalf. You will execute, deliver, and pay the fees for any documents we request to create, perfect, maintain, and enforce this security interest.
SECTION D: TERMINATION AND OTHER GENERAL LEGAL TERMS
The Agreement is effective upon the date you agree to it (by electronically indicating acceptance) and continues so long as you use the Services or until terminated by PointCheckout, Processor, Payment Network, or local financial institution.
You may terminate this Agreement by closing your PointCheckout Payments Account at any time by following the instructions in your PointCheckout admin portal or merchant mobile application. We may terminate this Agreement and close your PointCheckout Payments Account at any time, for any reason, upon notice to you in accordance with Section A16 above. We may suspend your PointCheckout Payments Account and your access to the Payments Services and any rights in respect of your PointCheckout 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 PointCheckout 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.
3. EFFECTS OF TERMINATION
Upon termination and closing of your PointCheckout 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 Service if your access to or use of the Payments Service is terminated or suspended. Any funds in our custody will be paid out to you subject to the terms of your payout schedule.
Termination does not relieve you of your obligations as defined in this Agreement and we 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 PointCheckout or Processor trademarks and to immediately remove any PointCheckout or Processor references and logos from your Site (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, and (v) 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.
4. YOUR LICENSE
We grant you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Payments Services solely to accept and receive payments and to manage the funds you so receive. The Payments Services includes our website, any software, programs, documentation, tools, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes, or maintenance releases) thereto provided to you by us. You will be entitled to download updates to the Payments Services, subject to any additional terms made known to you at that time when we make these updates available.
Payments Services are licensed and not sold. We reserve all rights not expressly granted to you in this Agreement. 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.
6. YOUR LIABILITY
You are responsible for all Reversals, Chargebacks, Claims, fines, fees, penalties, and other liability arising out of or relating to your breach of this Agreement, and/or your use of the Payments Services. You agree to reimburse your customer, PointCheckout, Processor, and any third party designated by PointCheckout or Processor for any and all such liability. “Chargeback” means a request that a buyer customer files directly with his or her card company or card issuing bank to invalidate a processed payment. “Claim” means a challenge to a payment that you or a buyer customer files directly with PointCheckout. “Reversal” means PointCheckout reverses the settlement of funds from a processed card transaction that you received because (a) the card transaction is invalidated by the card issuer, (b) the settlement funds were sent to you in error by (i) PointCheckout or Processor; (ii) the processors, suppliers or licensors of PointCheckout or Processor; or (iii) any of the respective affiliates, agents, directors, and employees of any of the entities listed in (i) or (ii) above, (c) the sender of the payment did not have the authorization to send the payment (for example the buyer used a card that did not belong to the buyer), (d) you received the payment for activities that violated this Agreement or any other PointCheckout or Processor agreement, or (e) we decided a Claim against you.
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.
Without limiting the foregoing, you agree to defend, indemnify, and hold harmless PointCheckout, Processor, and their respective employees and agents (collectively “Disclaiming Entities”) from and against any claim, suit, demand, loss, liability, damage, action or proceeding arising out of or relating to (i) your breach of any provision of this Agreement, and/or (ii) your use of the Payments Services, including without limitation any Reversals, Chargebacks, Claims, fines, fees, penalties, and attorneys’ fees; (iii) your, or your employee’s or agent’s, negligence or willful misconduct; or (iv) third-party indemnity obligations we incur as a direct or indirect result of your acts or omissions (including indemnification of any Payment Network or Issuer).
If you are liable for any amounts owed to us, we may immediately remove such amounts from your Reserve Account and deduct the amounts owed to us from such Reserve Account funds. If you do not have sufficient funds in the Reserve Account to cover your liability, you will be required to immediately add additional funds to your Reserve Account 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.
7. REPRESENTATION AND WARRANTIES
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) 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; (c) the name identified by you when you registered is your name or business name under which you sell goods and services; (d) any sales transaction submitted by you will represent a bona fide sale by you; (e) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a purchaser; (f) you will fulfill all of your obligations to each customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the purchaser; (g) you and all transactions initiated by you will comply with all federal, state, emirate, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no sales transaction submitted by you through the Payments Services will represent a sale to any principal, partner, proprietor, or owner of your entity; (i) 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.
8. 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) POINTCHECKOUT OR PROCESSOR; (II) THE PROCESSORS, SUPPLIERS OR LICENSORS OF POINTCHECKOUT OR 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 THE INFORMATION THEY PROVIDE OR THAT IS PROVIDED THROUGH THE PAYMENTS SERVICES IS ACCURATE, RELIABLE OR CORRECT; THAT THE PAYMENTS SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE PAYMENTS SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT THE PAYMENTS SERVICES WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE PAYMENTS SERVICES IS 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 SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND NEITHER POINTCHECKOUT, STRIPE NOR WELLS FARGO WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
9. LIMITATION OF LIABILITY AND DAMAGES
IN NO EVENT SHALL A DISCLAIMING ENTITY (AS DEFINED IN SECTION 8 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 (AS DEFINED IN SECTION 8 ABOVE) 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 (A) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE PAYMENTS SERVICES; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF SERVERS USED IN CONNECTION WITH THE PAYMENTS SERVICES AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (C) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PAYMENTS SERVICES; (D) ANY SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE PAYMENTS SERVICES; (E) 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 (F) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS SECTION 9, 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 POINTCHECKOUT 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 POINTCHECKOUT OR PROCESSOR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE PROVISIONS OF THIS SECTION D9 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
10. DISPUTES; CHOICE OF LAW; JURISDICTION AND VENUE
You agree that any disputes arising out of or relating to this Agreement or the Payments Services shall be resolved in accordance with this Section 10.
This Agreement is governed by the laws of the Abu Dhabi Global Market (without regard to its choice of law provisions). The exclusive venue for any actions or claims arising under or related to this Agreement shall be in the courts of Abu Dhabi Global Market. ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT. 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.
11. 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 such notice on our website 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 or software after our publication of any such changes shall constitute your acceptance of this Agreement as modified.
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.
13. CHANGE OF BUSINESS
You agree to give us at least 30 days prior to notification of your intent to change your current product or services types, your trade name, or the manner in which you accept payment. You agree to provide us with prompt notification if you are the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. You also agree to promptly notify us 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 25% or more of your total assets or any change in the control or ownership of you or your parent entity. You will also notify us of any judgment, writ, warrant of attachment, execution, or levy against 25% or more of your total assets not later than three days after you obtain knowledge of it.
This Agreement binds you and your respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or any permitted assigns.
15. FORCE MAJEURE
No party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this section will affect or excuse your liabilities and obligations under Section 10, including without limitation for Reversals, Chargebacks, Claims, fines, fees, refunds or unfulfilled products and services.
16. ENTIRE AGREEMENT
These terms and conditions, and all policies and procedures that are incorporated herein by reference, constitute the Merchant Terms and Conditions and are an integral part of the Merchant Services Agreement between you and PointCheckout 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 PointCheckout 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 PointCheckout 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, are cumulative and concurrent, and in addition to every other right.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following sections of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: Sections A4 Payment Methods; A6 Taxes; A8 Security; A9 Data Security; A10 Audit Right; A11 Privacy; A12 Privacy of Others; A13 Restricted Use; A14 Suspicion of Unauthorized or Illegal Use; A15 Payment Network Rules; A16 Disclosures and Notices; Section C Processing Card Transactions and Receiving Your Funds; in its entirety; and, Section D Termination and Other General Legal Terms in its entirety.