REFERSION PAY
MERCHANT TERMS OF SERVICE
Last Updated: November 10, 2021
These Refersion Pay Merchant Terms of Service (these “Terms”), govern the Order Form pursuant to which Refersion, Inc. (“Refersion”) will provide Pay Services to the Merchant identified on the Order Form (“Merchant”). These Terms supplement and are subject to the Refersion Terms of Service for Cloud Services and its incorporated documents (the “Agreement”); provided, however, that to the extent of any conflict between the Agreement and these Terms, these Terms control. To the extent of any conflict between these Terms and the Order Form, these Terms govern. Capitalized terminology not defined in these Terms have the meanings given to them in the Order Form or the Agreement.
1. PAY SERVICES.
1.1 General. Refersion will make available to Merchant, as part of the Services, additional functionality facilitating payments of a commission, referral fee or similar compensation (“Payouts”) to a Merchant’s Affiliates. The additional payment services may include, in each case as more particularly described in the Order Form (collectively, the “Pay Services”):
(a) generation of invoices for Payouts, display and electronic submission of such invoices and reports to Merchant for approval of Payouts,
(b) administrative tax documentation processing and withholding with respect to Payouts (the “Tax Capability”); and
(c) initiation of the processing of Payouts authorized by Merchant to one or more Affiliates who have agreed to participate in this program(the “Payment Capability”).
Once the Pay Services are configured, Merchant (and not Refersion) may authorize and initiate Payout transactions and Tax Capability actions through the online, interactive display or functionality made available by Refersion for Merchant use (“Dashboard”). The Pay Services will only be made available while Merchant’s Customer Order for Refersion Enterprise Plus remains in effect.
1.2 Permitted Affiliates Only. Merchant may only use the Payment Capability and Tax Capability with regard to transactions with an individual or entity that has subscribed to the Pay Services for Affiliates pursuant to the Refersion Pay Affiliate Terms of Service (“Permitted Affiliates”).
2. THIRD PARTY PLATFORMS.
2.1 General. The Pay Services may require the use of one or more third party payment processing agents, licensed money transmitters and other third party software service providers (collectively, “Third Party Platforms”) to effect Payouts and other aspects of the Pay Services. In most cases, the Pay Services require Merchant to agree to form a direct contractual relationship with Third Party Platforms under contractual terms presented by the Third Party Platforms (“Third Party Terms”). (For the avoidance of doubt, Merchant is not a third-party beneficiary of any of Refersion’s agreements with Third Party Platforms.) Third Party Terms are not controlled by Refersion, and they may be amended or updated from time to time by their controlling Third Party Platform. Merchant’s use of the Pay Services remains subject to Third Party Terms as amended or updated. Additionally, Third Party Platforms may enforce the terms of these Merchant Terms of Service and any applicable Third Party Terms directly against Merchant.
2.2. Capability-Specific Third Party Platforms. Merchant acknowledges and agrees that:
(a) Tax Capability. The Tax Capability is currently provided by SPAN Enterprises, LLC d/b/a TaxBandits (“TaxBandits”), as well as any affiliates, partners or other businesses providing aspects of its services (collectively, “Tax Partners”). Enrollment in and use of the Tax Capability requires assent to the Third Party Terms presented by Refersion and/or the Tax Partners to Merchant during the enrollment process, as well as any future Third Party Terms that such Tax Partners may require Merchant to agree to in order to maintain its ability to use the Payment Capability (collectively, the “Tax Partner Contracts”). As of the Last Updated date above, TaxBandit’s applicable Tax Partner Contract was available at: https://www.taxbandits.com/terms/. Merchant’s agreement to such Third Party Terms is evidenced by Merchant clicking on a button (stating a phrase such as “Accept” or “Yes”) or checking off a checkbox adjacent to equivalent phrasing, or otherwise affirmatively assenting to enrollment in the Payment Capability for use with the Tax Partner(s).
(b) Payment Capability. The Payment Capability is currently provided by Rapyd Financial Technology US (“Rapyd”), as well as any affiliates, partners or other businesses providing aspects of its services (collectively, “Payment Processors”). Enrollment in and use of the Payment Capability requires assent to the Third Party Terms presented by Refersion and/or the Payment Processors to Merchant during the enrollment process, as well as any future Third Party Terms that such Payment Processors may require Merchant to agree to in order to maintain its ability to use the Payment Capability (collectively, the “Payment Processor Contracts”). As of the Last Updated date above, Rapyd’s applicable Payment Processor Contract was available at: https://www.rapyd.net/checkout-terms-of-service/. Merchant’s agreement to such Payment Processor Contracts is evidenced by Merchant clicking on a button (stating a phrase such as “Accept” or “Yes”) or checking off a checkbox adjacent to equivalent phrasing, or otherwise affirmatively assenting to enrollment in the Tax Capability for use with the Tax Partner(s).
2.3. Independent, Direct Relationships. Merchant acknowledges and agrees that, by using the Payment Capability and/or the Tax Capability, it has a separate commercial relationship with each of (a) Refersion, Inc., pursuant to these Terms, and (b) each Tax Partner and/or Payment Processor (pursuant to the applicable Third Party Terms entered into between such Tax Partner or Payment Processor and Merchant related to the Tax Capability or Payment Capability, respectively). Merchant agrees that Refersion is not responsible for the Payment Processors’ performance under the Payment Processor Contracts. Further, Merchant agrees that Refersion is not responsible for the Tax Partners’ performance under the Tax Partner Contracts.
2.4. Changes to Third Party Platforms. Refersion may add or remove a Third Party Platform at any time by posting the change on the Website; provided, however, that:
(a) Refersion will use commercially reasonable efforts to notify Merchant of any addition or removal of a Third Party Partner resulting in a material impact to the Pay Services at least thirty (30) days prior to the effective time of such addition or removal.
(b) Refersion will use commercially reasonable efforts to assist Merchant and any of its affected Affiliates with the transition of the Pay Services affected by such removal or addition to a new or existing Third Party Platform, or Refersion’s internal platform, as applicable.
3. LICENSE.
3.1. Grant of Rights. Refersion hereby grants Merchant a non-exclusive, non-transferable, revocable right to use Pay Services, specifically to view reports and invoices issued by the Pay Services pursuant to the Agreement and accessed through the Pay Services, to view and access payment and invoice history, to manage tax withholding from Payouts, and to authorize Payouts to Merchant’s Affiliates. All rights not expressly granted to Merchant are reserved by Refersion and the Third Party Platforms, Refersion’s licensors and Refersion’s other service providers.
3.2. Restrictions. Merchant’s use of the Pay Services remains subject to the restrictions found in the Agreement, including Refersion’s Acceptable Use Policy incorporated therein.
4. PAYMENT CAPABILITY.
4.1. Scope of Refersion’s role. It is solely Merchant’s responsibility to determine if the Payment Capability will meet Merchant’s own internal, legal and regulatory requirements related to invoicing, procurement and the submission and processing of payments in satisfaction of outstanding invoices. Any portion of the Payment Capability related to the management, processing or transmission of payments or funds or the provision of any payment intermediary-related services are provided by Payment Processors, and not by Refersion (the “Payment Processor Services”). Therefore, Refersion shall not be liable to Merchant with respect to any and all costs, liabilities or damages arising or resulting from Payment Processor Services. To further clarify, the Pay Services do not store Merchant’s account numbers (note that the final 4 digits may be held by Refersion, for validation), Merchant’s funds or otherwise constitute acting as a payment intermediary or originator.
4.2. Restricted Jurisdictions. Merchant may only use the Payment Capability to effect Payouts involving financial accounts located in territories permitted by the Payment Processor(s). Note that the Payment Capability for a region may only allow transactions within its borders. See the program information for details. The Payment Capability does not include, and these terms do not apply to, the receipt of mailed checks or virtual prepaid or credit card payments that may be facilitated by the Payment Processors in other circumstances.
4.3. Payout Transactions. Payout transactions are solely between Merchant and its Permitted Affiliates. Refersion is not a party to these transactions or custodian, escrow agent or fiduciary. The amount, payment frequency and period, and other specific terms and conditions of Payouts are governed by agreements concluded by Merchant and its Affiliates. Merchant acknowledges that it is solely responsible for the data Merchant inputs or causes to be inputted into the Pay Services, including data inputted by Affiliates, and that Refersion conducts no independent verification of such data, including with respect to Merchant’s compliance with the terms of Merchant’s agreements with its Affiliates.
4.4 Payout Disputes. Neither Refersion nor any Payment Processor is obligated to resolve disputes between Merchant and Affiliates with respect to the transactions for which payments are initiated using the Payment Processing Services. It is solely the responsibility of Merchant and its Affiliates to determine the rights, responsibilities and remedies regarding the transactions for which payments are initiated via the Payment Processing Services, including but not limited to offer, acceptance, passing of title, examination of goods or any other matters related to the sale or lease of goods or services. Merchant must fully exhaust all legal process and remedies in any dispute with an Affiliate prior to seeking any recourse against Refersion or any other party hereunder.
4.5. Ongoing Responsibilities.
(a) Accuracy of Information. It is Merchant’s sole responsibility to ensure that any and all authorizations, approvals, transaction data or other information required to enable Merchant to use, and to continue to use, the Payment Capability shall be true, correct and complete in all respects. Such information shall include but is not limited to (i) configuration parameters associated with the Payment Capability for a particular territory; and (ii) data or instructions related to each transaction to which Merchant is a party.
(b) Authorized Users. It is solely within Merchant’s control to elect settlement via the Pay Services for a specific Affiliate, and Merchant represents and warrants that any persons who authorize receipt of settlement using the Payment Capability on Merchant’s behalf or who make any updates to settings and configurations in its account with Refersion are duly authorized by Merchant to perform such duties (each, an “Authorized Person”). Merchant must promptly notify Refersion and the Payment Processor of any changes with respect to the persons who are Authorized Persons, including but not limited to any such changes which would result in Merchant’s breach or alleged breach of any term, covenant, condition, representation, warranty or agreement with Refersion or any agreement related to the Payment Capability. For any actions taken by individuals using Merchant’s login credentials, Merchant agree that Refersion is entitled to rely on Merchant’s representation that such individuals are Authorized Persons.
4.6. Onboarding. In general, Merchant must configure the Payment Capability in accordance with the Payment Processors’ onboarding processes, primarily Rapyd’s. The following description summarizes aspects of the onboarding process, but is qualified in its entirety by the Payment Processors’ onboarding process and requirements and their applicable Third Party Terms.
(a) Configuring Accounts. To use the Payment Capability, Merchant must provide the applicable Payment Processor (currently, Rapyd), through the Pay Services, the bank account and routing numbers for the business checking account Merchant wishes to use as the source of Merchant’s funds for making Payouts (“Funding Account”). Rapyd will create a separate account specifically for Merchant in which funds for Payouts will be maintained on an ongoing basis (“Payment Account”). When Merchant provides Funding Account information to the applicable Payment Processor through the Pay Services, Merchant authorizes the initiation of debit or credit entries, as applicable, between the Funding Account and the Payment Account in accordance with these Merchant Terms of Service, and, if necessary, the initiation of adjustments for any transactions debited or credited in error.
4.7. Transactions with the Payment Account. Merchant agrees that Refersion may submit instructions to Payment Processor(s) to charge the Funding Account, create the Payment Account and initiate debits and credit entries to the Payment Account through the Automated Clearing House (“ACH”) transfers for the purposes of:
(a) funding the Payment Account in respect of approved Permitted Affiliate transactions and their corresponding Subscription Fees;
(b) making Payouts to Permitted Affiliates;
(c) remitting to Merchant withheld amounts from Payouts (if applicable);
(d) performing Pay Services;
(e) charging any other applicable fees for Pay Services as set forth in the Order Form, and
(f) for other reasons as provided in these Merchant Terms of Service.
Refersion may charge its Fees during the Term regardless of whether the Pay Services were used during the billing cycle.
4.8. Payouts.
(a) Scheduling Payouts. Merchant will select the date (“Process Date”) of submission of Payouts to the applicable Payment Processor(s). The Dashboard will indicate the earliest possible Process Date for each Payout and will automatically issue instructions to Refersion’s payment processor within one to two business days following the Process Date. Merchant will be solely responsible for scheduling Payouts and selecting a Process Date for each Payout that allows sufficient time for the payment to be delivered on or prior to the Payout’s due date. Typically, it takes three to five (3-5) full business days after the Process Date to post an electronic payment. Merchant shall be solely responsible for all penalties, interest charges, and other late payment fees associated with payments that are delivered after the Process Date, as may be provided in agreements between Merchant and its Affiliates.
(b) Funding and Effecting Payouts.
(i). The Pay Services will automatically debit Funding Account in respect of Merchant’s approved Affiliate transactions and their corresponding Subscription Fees on an ongoing nightly basis. If Merchant believes the Pay Services amount debited an improper amount (i.e., one inconsistent with these Terms and Merchant’s configuration of the Dashboard), or has other good cause to seek the return of a debited amount, Merchant must contact Refersion via the Dashboard’s customer service contact methods or [email protected]. Refersion will consider all such requests in a timely manner, and will return funds debited in error or for other good cause on a case-by-case basis.
(ii). Payouts to Permitted Affiliates, by default, occur every thirty (30) days, however Merchant may configure the frequency of Payouts on the Dashboard.
(c) Refused and Delayed Payouts. Refersion and/or any Payment Processor may refuse to initiate a Payout to any Permitted Affiliate in their reasonable discretion. Refersion will use commercially reasonable efforts to provide notice promptly if it decides to refuse to initiate a Payout. In addition, Refersion may delay any Payout in its sole discretion for any of the following reasons:
(i) based on Merchant’s perceived risk and history with Refersion;
(ii) as required by law or court order;
(iii) during investigation and resolution of any dispute related to Merchant’s account with Refersion;
(iv) to secure the performance of Merchant’s payment obligations under this Agreement; and/or
(v) as otherwise permitted under this Agreement or applicable law.
(d) Multi-Currency Processing. Currently, the Pay Services only support payments in U.S. Dollars. In the future, Refersion may offer Merchant the ability to make Payouts to Affiliates in a currency different from the one in which Merchant accepted payment in the underlying transaction of goods or services (“Multi-Currency Processing”). Future offerings of Multi-Currency Processing will only be made available subject to Merchant’s acceptance of legal terms governing its use.
(e) Returned Transactions. Affiliates or their banking institutions may return Payouts for various reasons such as, but not limited to, invalid bank routing number, invalid bank account number, remittance address is not correct, Affiliate is unable to identify an account, or a Payee account is paid in full. In addition, an Affiliate may refuse to accept a Payout, and Refersion will have no liability for any resulting loss or damage. Refersion will use commercially reasonable efforts to provide Merchant with notice of returned Payouts and will offer Merchant through the Dashboard the choice whether to void and credit or void and reissue the Payouts. Merchant agrees that Refersion shall not have any liability for any such returned payments of Payouts. Unless otherwise directed, Refersion will void such payments. Merchant hereby authorizes Refersion to credit such payments to Merchant’s Funding Account through ACH.
(f) Payout Cancellation Requests. Refersion has no ability to cancel, reschedule or modify a Payout once Merchant has authorized it for processing. Merchant must contact a Payout’s applicable Payment Processor(s) with any attempt to cancel, reschedule or modify a Payout.
4.9. Collection, and Set-Off Rights. Merchant agrees to pay all amounts owed to Refersion under these Merchant Terms of Service on demand. Merchant’s failure to pay amounts owed to Refersion under these Merchant Terms of Service is a breach, and Merchant will be liable for any costs Refersion incur during collection in addition to the amount Merchant owes. Collection costs may include, attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, any applicable interest, and any other related cost. Where possible, Refersion will first attempt to collect or set-off amounts owed to Refersion and to or affiliates from balances in the Payment Account or from Merchant’s funds used by Refersion to effect Payouts. However, Refersion may collect any amounts Merchant owes Refersion under these Merchant Terms of Service by deducting or setting-off amounts that Merchant owes from the Merchant’s funds which may be held by Refersion or Refersion’s Payment Processors.
5. TAX CAPABILITY.
5.1. Generally. The Tax Capability provided by the Tax Partners enables Merchant to comply with its U.S. tax reporting obligations, such as by means of generating IRS Forms 1099 or 1042-S based on tax data supplied by Permitted Affiliates through IRS Forms W-9 or W-8 Series. The Tax Capability uses the tax data from such forms to facilitate withholding of the applicable federal U.S. taxes from the gross amounts of Payouts.
5.2. Scope of Refersion’s role. It is solely Merchant’s responsibility to determine if the Tax Capability will meet Merchant’s own internal, legal and regulatory requirements related to meeting its tax-related obligations. Any portion of the Tax Capability related to the creation and processing of tax forms, processing or submission of tax forms to applicable tax authorities or the provision of any tax intermediary-related services are provided by Tax Partners, and not by Refersion (the “Tax Partner Services”). As part of the Tax Partner Services, Tax Partners may be under legal or regulatory obligations to maintain documentation actually filed with taxing authorities for a period of time that may outlast Merchant’s use of the Pay Services, the Services in general, or any contractual relationship between Merchant and Refersion. Merchant acknowledges and understands that the terms under which it obtains the Tax Partner Services from Tax Partners are contained in applicable Tax Partner Contracts. To further clarify, the Pay Services do not include tax advice, tax form preparation and submission or the storage of any information contained in tax forms or on a Tax Partner’s Third Party Platform. Therefore, Refersion shall not be liable to Merchant with respect to any and all costs, liabilities or damages arising or resulting from Tax Partner Services.
5.3. Onboarding. Merchant must configure the Tax Capability in accordance with the Tax Partners’ onboarding processes, primarily TaxBandits’. The specific onboarding requirements are determined solely by the Tax Partners, but generally involve the submission of information necessary to create tax forms applicable to Merchant based on its legal status under applicable law.
Withholding. The Tax Capability does not currently support tax withholding. However, Refersion and the Tax Partners plan to offer tax withholding features through the Tax Capability in the future on the terms that follow, which remain subject to change prior to launch. Merchant will have an opportunity to confirm and to adjust the amounts of tax withholding for each Permitted Affiliate through TaxBandits (or any successor Tax Partner). The amounts withheld from Payouts to Affiliates will be credited to Merchant’s Payment Account to enable Merchant to remit such amounts to the IRS and any other applicable tax authority.
5.5. Ongoing Responsibilities. It is Merchant’s sole responsibility to determine what, if any, taxes apply to Payouts, and to collect, report and remit the correct tax to the appropriate tax authority. Merchant will be solely responsible for contingencies and maintain required reserves for the collection, reporting and remitting the correct tax. Refersion is not a tax or legal advisor and is not responsible for determining whether taxes apply to Payouts and at what rate, or for collecting, reporting or remitting any taxes other than as authorized by Merchant hereby.
5.6. Refersion is not liable for any delays or inaccuracies resulting from actions or omissions of Tax Partner(s) or Merchant, as may result in late payments or failed payments of withheld taxes. Merchant, and not Refersion, is solely liable for any penalties, fines, interest or any other charges imposed on Merchant by the IRS or any other applicable taxing authority. Merchant acknowledges that Refersion does not independently verify and is not responsible for the accuracy of the tax forms or tax data supplied by Affiliates.
6. MERCHANT REPRESENTATIONS AND WARRANTIES.
6.1. Merchant represents and warrants, on an ongoing basis, that:
(a). it is responsible for all activity occurring under Merchant’s account;
(b). all information and documentation it provides in connection it use of the Pay Services (including that of its Affiliates) are accurate, up-to-date and truthful;
(c). it has reviewed, verified and authorized Payout transactions; and
(d). it has and will abide by all applicable U.S. local, state, and federal laws and regulations and international treaties in connection with Merchant’s use of Pay Services, including, without limitation, those related to financial transactions, money laundering, trade and other sanctions, export controls, data privacy, communications, export or import of data and the transmission of technical, personal or other data.
6.2. Merchant will:
(a). notify Refersion immediately of any unauthorized use of any password or account or any other known or suspected breach of security, via email to [email protected];
(b). report to Refersion any conduct by Affiliates that is known or suspected by Merchant of being fraudulent or unlawful; and
(c). review and approve all reports relating to Pay Services generated by Refersion.
7. MERCHANT DATA.
7.1. Refersion does not own any data, information or material that Merchant submits to or inputs to Refersion in the course of using Pay Services (“Merchant Data”); provided, however, that Refersion may anonymize and aggregate Merchant Data and use the resulting information for any purpose consistent with the General TOS.
(a) For the avoidance of doubt, Refersion does not receive and has no access to Merchant’s full Funding Account or Payment Account number, any other permanently identifying or access-enabling data related to either, such as a routing number or account credential with a financial institution. Refersion may, however, receive excerpts of Funding Account or Payment Account numbers (generally, the last four (4) digits) solely for purposes of providing the Pay Services (such as verifying Merchant’s information during support inquiries).
7.2. Merchant, not Refersion, shall have sole responsibility for the accuracy and intellectual property ownership or right to use of all Merchant Data, and, to the extent permitted by applicable law, Refersion shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of any Merchant Data by Refersion, the Merchant or otherwise. While these Merchant Terms of Service is in effect, Merchant grants Refersion the right to use tax forms, tax documentation and related data pertaining to payments made by Merchant to its Affiliates for any legal compliance purpose.
7.3. If requested in writing by Merchant within 90 days of termination or expiration, Refersion will make available to Merchant an electronic file of the Merchant Data. After such period, Refersion will delete all Merchant Data unless special arrangements are made for archival storage of Merchant Data for an additional fee.
8. TERM.
These Merchant Terms of Service, and Merchant’s right to use the Pay Services, begin on the Effective Date and remain in effect during the period specified either (a) in the Merchant Order Form above for Refersion Pay or (b) on Merchant’s Customer Order for Refersion Enterprise Plus. Notwithstanding anything to the contrary contained herein, in the event the Agreement, Merchant’s Customer Order for Refersion Enterprise Plus or the Merchant Order Form for Refersion Pay above is terminated for any reason, these Merchant Terms of Service shall also terminate at the same time without further notice. Sections 7 through 15 hereof shall survive any expiration or termination of these Merchant Terms of Service.
9. LIMITED WARRANTY.
Refersion will use commercially reasonable efforts to make all Payouts approved by Merchant in accordance with these Merchant Terms of Service. If the Services authorize or effectuate payments that differ from the amounts or recipients stated in the Dashboard, or if Refersion fails to submit a Payout to the applicable Payment Processor(s) in accordance with these Merchant Terms of Service (each an “Error”), Refersion shall use commercially reasonable efforts to correct the Error (such as by returning improperly transferred funds to the Payment Account or Funding Account, or by directing any previously misdirected payments to the proper Permitted Affiliate), provided that the Payout was scheduled by Merchant correctly and in accordance with the Terms.
Notwithstanding the foregoing, Refersion has no liability for any Error resulting from any of the following circumstances:
(a). insufficient funds in the Funding Account;
(b). ACH Network or other payment processing center downtime or error;
(c). actions and omissions of Third Party Platforms;
(d). inaccurate, incomplete or out-of-date Funding Account information, tax information (whether of Merchant or any applicable Affiliate) or Merchant’s Payout instructions or settings; or
If Merchant believes Merchant is entitled to a credit under this Section 8, Merchant must notify Refersion support as soon as Merchant learns of the Error (and in no event later than thirty (30) days after the earlier of when the credit is due or made).
Merchant must cooperate fully with Refersion’s remediation efforts, including by contacting the Affiliate, contacting Merchant’s bank, contacting the Affiliate’s bank, making information or funds available, executing all documents and taking all other actions reasonably requested to correct or mitigate the Error.
THE FOREGOING SETS FORTH THE SOLE AND EXCLUSIVE REMEDY AND REFERSION’S FULL AND EXCLUSIVE OBLIGATION WITH RESPECT TO ANY BREACH OF THIS LIMITED WARRANTY.
10. WARRANTY DISCLAIMERS.
EXCEPT AS PROVIDED IN THIS AGREEMENT, REFERSION MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTIES WITH RESPECT TO THE PAY SERVICES OR ANY OTHER SERVICES OR PRODUCTS PROVIDED HEREUNDER. REFERSION DOES NOT REPRESENT OR WARRANT THAT:
(a). THE USE OF PAY SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA,
(b). THE PAY SERVICES WILL MEET MERCHANT’S REQUIREMENTS OR EXPECTATIONS,
ANY STORED DATA WILL BE ACCURATE OR RELIABLE, OR
(c). THE PAY SERVICES WIL BE AVAILABLE AT ALL TIMES, ERROR-FREE OR DEFECT-FREE OR THAT ANY SUCH ERRORS OR DEFECTS WILL BE CORRECTED.
THE PAY SERVICES ARE PROVIDED TO MERCHANT STRICTLY ON AN “AS IS” BASIS. REFERSION DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. REFERSION’S PAY SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. REFERSION IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
11. INDEMNIFICATION.
In addition to any indemnification provided for in the Agreement or any Third Party Terms, Merchant agrees to defend, indemnify and hold harmless Refersion and its respective officers, directors, shareholders, agents, employees, licensors and suppliers from any third party claims, actions, proceedings, and suits and related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and litigation costs) arising from:
Merchant’s violation of the Terms, the Third Party Terms or any other applicable terms or policies of Refersion or its Payment Processors;
Affiliate’s claims with respect to Payouts;
Merchant’s use of Pay Services;
Merchant’s negligence, gross negligence, fraud or willful misconduct; and/or
Merchant’s actual or alleged violation of any third party rights, or any applicable laws, regulations or rules.
12. DISPUTES.
12.1. Informal Resolution. The parties involved in any controversy, claim or dispute of any nature arising out of or relating to these Terms (each, a “Dispute”) shall have good faith discussions to attempt to resolve such Dispute upon the written request of any such party. In the event of a Dispute between a Merchant and a Permitted Affiliate (i) with respect to the amount or nature of payments or transactions payable or creditable between themselves or (ii) otherwise governed by the direct contract between such Merchant and such Permitted Affiliate, Merchant must exhaust all legal process and remedies directly against the Permitted Affiliate prior to involving Refersion in the Dispute.
12.2. Arbitration. If such discussions do not result in resolution of the applicable Dispute within 30 days after such request has been delivered, then such Dispute shall be finally resolved by binding arbitration administered by the Judicial Arbitration and Mediation Services (“JAMS”) in accordance with the commercial arbitration rules of JAMS then in effect (the “Rules”) by one or more arbitrators. Each party involved in the Dispute may initiate arbitration by written demand delivered to each other party involved in the Dispute within 30 days after the expiration of the foregoing 30-day period. The seat of the arbitration will be New York, New York, and any award deemed entered there. The language of the arbitration shall be English. All costs and expenses of the arbitral proceedings shall be borne by the non-prevailing party (as determined by the arbitrator(s)) in any such arbitral proceedings. The award shall be final and binding on all parties, and the parties hereby waive the right of an appeal to any court for amendment or modification of the arbitrator’s award.
12.3. Notwithstanding the foregoing, nothing in this Section 13 prohibits either party from seeking or obtaining preliminary injunctive relief or other preliminary relief in any court of competent jurisdiction at any time.
13. ELECTRONIC RECORDS AND SIGNATURE.
It is agreed by the parties that, notwithstanding the use herein of the words “writing,” “execution,” “signed,” “signature,” or other words of similar import, the parties intend that the use of electronic signatures and the keeping of records in electronic form be granted the same legal effect, validity or enforceability as a signature affixed by hand or the use of a paper-based record keeping system (as the case might be) to the extent and as provided for in any applicable law including the Federal Electronic Signatures in Global and National Commerce Act, or any similar state laws based on the Uniform Electronic Transactions Act.
14. E-MAIL NOTIFICATIONS.
The Merchant hereby consents to receiving e-mail notifications as a reminder that payments are due or to be paid with respect to Pay Services. Such e-mail notifications will include a link to the Dashboard. Merchant can opt out of such e-mail notifications by following instructions contained on the notification.
15. CONTACT.
In addition to the contact information provided above and in the Agreement, Merchant may contact Refersion with any Refersion Pay-related issues or questions by contacting Refersion at [email protected].