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I. SAIL ACCOUNT REGISTRATION; ACCOUNT INFORMATION.
Prior to using the Service, you must register an account with Sail ("Sail Account"). Our registration process will ask you for certain information including your name and other personal information. You must provide accurate and complete information in response to our questions. You must also keep the information that you provide up-to-date by informing us of any changes. If you or any of your users provide us with any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect so, we have the right to suspend or terminate your access (or the access of any of your users) to the Service and terminate your registration. Both individuals and businesses may register for a Sail Account. In the case of a corporation, limited liability company, or other legally recognized business, you must provide accurate and complete information about yourself as well as the business. You may only register to use the Service on behalf of a legally recognized business if you are authorized to act on behalf of the business and have the authority to bind the business to
this Agreement. In order to sign up a business to use the Service, you must agree to this Agreement on behalf of yourself as well as the business. If you have so agreed, "you" means you, an individual, as well as the business. We have the right to refuse to register any account. By registering a Sail Account, you confirm that you are either a legal resident of the United States, a United States citizen or a business entity authorized to conduct business by the state in which it operates.
II. YOUR REPRESENTATIONS 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 Service 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, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations, as well as the payment card network rules; (h) except in the ordinary course of business, no sales transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; and (i) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service.
III. REGISTRATION PROCESS.
As set forth in Section I, above, you have agreed as a condition to using the Service to provide us with accurate, current and complete information (keeping such information upto-date), and you are confirming your citizenship and that you will not accept payment transactions using the Services from certain businesses as set forth in Section VIII, below. In addition to providing us such information, by registering for the Service, you are warranting and representing to us that you (including the Company) are engaged in a lawful business, have all necessary Federal and state licenses as may be required to conduct such business and you also agree that you shall fully comply with all applicable laws and regulations in connection with your use of the Service. During the registration process, you are asked to provide the name of the business that desires to conduct transactions using the Service. If the business is known by a name other than its legal name, (otherwise known as the "Doing business as" (DBA) name) and you enter that name during the registration process, such name (as opposed to the legal name of the business) is the designation that will appear on the cardholder's credit or debit card statement. However, if any transaction dispute results from your failure to use a reasonably descriptive name for your business to ensure that it is readily identifiable to a cardholder, you shall indemnify us for any fees and costs stemming from such dispute.
IV. APPROVAL PROCESS.
We will review the information that you submit in connection with your request to sign up for the Service. We may forward such information on to our processor. In order to be eligible to use the Service, you must agree that VeriFone may share information about you and your Sail Account with its processor. After you submit your registration, we may conclude that you will not be permitted to accept the Service. Further, we may periodically obtain additional reports to determine whether you continue to meet the requirements for a Sail Account. You agree that VeriFone is permitted to contact and share information about you and your application (including whether you are approved or declined), and your Sail Account with your bank or other financial institution. This includes sharing information (a) about your transactions for regulatory or compliance purposes; (b) for use in connection with the management and maintenance of the Service; (c) to create and update your bank's customer records about you and to assist it in better serving you; and (d) to conduct our risk management process. If we approved your registration for a Sail Account, in addition to your obligation to keep all information submitted current, we may request additional information from you at any time, including, but not limited to, invoices from your suppliers, a government issued identification such as a passport or driver's license, or a business license. We may also inspect your business location, and request your consent to have your credit reports released to us. We may request, as a condition to our approving your registration, that you provide us with previous processing statements, financials, bank statements, and tax filings. We may also (and you specifically authorize us to) request identity verifying information about you, including a consumer report that contains your name, address and other personally identifiable information. If you fail to provide us with any information or documentation we may request, your registration (if previously approved) may be terminated, or we may not grant your registration.
VI. YOUR MOBILE DEVICE
Your Sail Account, in combination with the Software, permits you to accept payment card transactions on the mobile device that you registered with us. Devices modified contrary to the manufacturer's software or hardware guidelines, including but not limited to disabling hardware or software controls-sometimes referred to as "jailbreaking"-are not compatible mobile devices. You acknowledge that the use of a device to use the Service that is modified in a manner contrary to the manufacturer.s guidelines is expressly
prohibited, constitutes a violation of the terms of this Agreement, and is grounds for termination of your Sail Account. We do not warrant that the Service will be compatible with your proposed mobile device. Your use of the Service may be subject to the terms of your agreements with your mobile device manufacturer and your carrier.
VII. OUR ROLE.
Our Service allows you to accept payments, including card based payments, initiated with cards bearing the trademarks of MasterCard International Inc. and Visa Inc. (collectively, the "Networks"). We are not a bank or a money services business ("MSB") and we do not offer banking or MSB services as defined by the Federal or state law. In the capacity of a merchant payment processor, we (either ourselves or through a processor) process payments you receive from your customers. This means that we collect, analyze and relay information generated in connection with these payments. In order to serve in this role, we must enter into agreements with the payment networks, other processors and banks. These third parties may require that some of our users (those with higher volume, or in certain industries) enter into an agreement with what is known as the "payment processor of record". If you are such a user, we will provide you a "Commercial Entity Agreement" that you must complete in order to use (or continue to use) the Service. This may happen during the registration process or at some other time. If you fail to complete a "Commercial Entity Agreement," we may suspend or terminate your Sail Account. By accepting the terms of this Agreement, you authorize us to hold, receive, and disburse funds on your behalf. Your authorization permits us to generate a paper draft or an electronic funds transfer to process each payment transaction that you authorize. Your authorizations will remain in full force and effect until your Sail Account is closed or terminated.
VIII. UNAUTHORIZED USE; RESTRICTIONS ON USE.
You may use the Service only to the extent that you comply with all statutes, laws, rules, and regulations applicable to your use of the Service (including those imposed by Federal or state law, or any payment card network, as set forth below). You may not act as a payment intermediary, aggregator or service bureau or otherwise resell our Services on behalf of any third party. This means that you may not use the Service to handle, process or transmit funds for any third party. You also may not use the Service to process cash advances. The Service and your Sail Account may only be used in the fifty states of the United States of America and the District of Columbia. You may not export any part of the Service directly or indirectly, and you acknowledge that the Service may be subject to export restrictions imposed by Federal and states laws, including US Export Administration Regulations (15 C.F.R. Chapter VII). By registering a Sail Account, you also confirm that you will not accept payments in connection with the following businesses or business activities: (1) any illegal activity, (2) buyers or membership clubs, (3) credit counseling or repair agencies, (4) credit protection or identity theft protection services, (5) multi-level marketing businesses, (6) direct marketing or subscription offers or services, (7) inbound or outbound
telemarketers, (8) infomercial sales, (9) internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an Internet or telephone consultation, absent a physical visit with a physician including reimportation of pharmaceuticals from foreign countries), (10) prepaid phone cards or phone services, (11) rebate based businesses, (12) up-sell merchants, (13) bill payment services, (14) betting, including lottery tickets, casino gaming chips, off-track betting, and wagers at races, (15) financial institutions offering manual or automated cash disbursements, (16) financial institutions offering merchandise and services, (17) sales of money-orders or foreign currency by non-financial institutions, (18) wire transfer money orders, (19) high-risk merchants, including telemarketing merchants, (20) service station merchants, (21) automated fuel dispensers, (22) adult entertainment oriented products or services (in any medium, e.g., internet, telephone or printed material), (23) Internet/mail order/telephone order firearm or weapon sales, (24) Internet/mail order/telephone order cigarette or tobacco sales, (25) drug paraphernalia, (26) occult materials, (27) hate products, (28) escort services, (29) bankruptcy attorneys, (30) airlines, (31) timeshare programs, (32) travel including travel packages, travel coupon and travel certificates, (33) mortgage payment reduction service, (34) warranty programs and warranty sales, (35) cruise ships, and/or (36) Any future fulfillment beyond 3 months. The payment card networks require that VeriFone and you comply with all applicable bylaws, rules, and regulations ("Network Rules"). The payment card networks have historically reserved the right to amend the Network Rules. As a result, we may be required to amend this Agreement should there be amendments to the Network Rules. Significant portions of the Network Rules are available to the public at usa.visa.com and www.mastercard.com. Network Rules currently prohibit you from (a) assessing a surcharge for the use of a payment card in connection with any transaction, or (b) dispensing cash on any card transaction. The Network Rules also restrict your use of payment card network logos to indicating your acceptance of the network cards, and as may expressly be authorized by the Networks. We may determine not to authorize or settle any transaction that you submit to us if we believe that the transaction is in violation of any VeriFone agreement, applicable law or the Network Rules, or exposes you, other VeriFone users, our processors or VeriFone to harm, including the potential for fraud and other criminal acts. If we reasonably suspect that your Sail Account has been used for an unauthorized, illegal, or criminal purpose, you hereby acknowledge and agree that we may provide information about you, your Sail Account, and any of your transactions with law enforcement.
We grant you a limited, non-exclusive, revocable, and non- transferable license, without the right to sublicense, to electronically access and use the Service solely to accept and receive payments and to manage the funds you so receive. The Service 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 we provide you. You will be entitled to download updates to the Service, subject to any additional terms made known to you at that time, when we make these updates available. While we want you to maximize your use of the Service, you may not, nor may you permit any third party to do any of the following: (i) access or attempt to access VeriFone 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
VeriFone; (iii) permit any third party to use and benefit from the Service 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 Service, use any tool to enable features or functionalities that are otherwise disabled in the Service, or decompile, disassemble or otherwise reverse engineer the Service, 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 Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Service except as expressly allowed under this section. You shall be liable for the accuracy and legitimacy of all orders and information provided to VeriFone and you may not process orders on behalf of any other entity or individual.
The Service is licensed and not sold. We reserve all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. We own or have rights to the title, copyright and other worldwide Intellectual Property Rights (as defined below) in the Service and all copies of the Service. This Agreement does not grant you any rights whatsoever to any of VeriFone's 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 Service, including without limitation about how to improve the Service or our products ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place VeriFone under any fiduciary, employment or other obligation, and we are free to use the Idea without any 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.
XI. ACCEPTED CARDS.
VeriFone works with most US-issued and many non-US issued credit, debit, pre-paid, or gift cards with a Visa, MasterCard, American Express, or Discover logo. We currently do not accept HSA cards (Health Savings Account), even if they have a Visa, MasterCard, American Express, or Discover logo on them. We may remove or add cards that we accept at anytime without prior notice. We will only process cards that receive an authorization from the applicable payment network or card issuer. The person who presents the card to you ("the Payer"), may not be authorized to use the card or otherwise contest the transaction through the chargeback process (described below).
XII. OUR FEES.
In consideration for our provision of the Services, you agree to pay the applicable fees listed on our Fee Schedule ("Fees"), which has separately been provided to you, whenever you use our Service. Subject to the terms of this Agreement, we reserve the right to change our Fees on thirty (30) days prior notice of any change, which you agree is reasonable notice. Your continued use of the Service on the thirty-first day following our notice to you (which may be on our website or delivered electronically) constitutes your acceptance of the revised Fees. If you wish to withdraw your consent once the Fees have changed, you will need to close your Sail Account.
XIII. AVAILABILITY OF FUNDS.
Subject to the limitations set forth in this Agreement (including the payout schedule set forth below), we will deposit (in US dollars) to your Sail Account the amounts actually received by us for transactions submitted through the Service (less any applicable Fees, and in the case of card not present sales, if you accrue more than $750 in card-notpresent sales during any trailing seven day period, we may defer depositing the money in excess of $750 for 30 days or more). Once your bank account information is verified, we will automatically deposit your money in your designated bank account once your Sail Account balance exceeds $5. Funds for any given transaction will not be deposited until the transaction is deemed complete, which is when we have received or sent the funds and when we or the designated financial institutions have accepted the transaction or funds. You are responsible for monitoring your transactions and ensuring that our payments to you are correct. You must notify us of any errors in payments made to you within thirty (30) days of the error first appearing on your electronic transaction history. Failure to notify us of such an error is an express waiver of any funds subject to the purported error. Once you validate your US bank account, we will automatically initiate a payout to your bank account at the end of every business day. We reserve the right to apply limits to the amount deposited to your account on a weekly basis. The amount of the maximum weekly deposit to your account will be dynamically determined based on account history, internal fraud and risk rules, and other business considerations, and may be reduced if certain thresholds are exceeded or if, in our sole opinion, the risk associated with your Sail Account is deemed to be excessive. You may request a review of these limits at any time, and we will respond within a reasonable time frame, generally not to exceed 30 days, with the result of our review. Should we need to conduct an investigation or resolve any pending dispute related to your Sail Account, we may defer payout or restrict access to your funds for the entire time it takes for us to do so. We also may defer payout or restrict access to your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
XIV. SAIL ACCOUNT HISTORY.
When a payment is made to your Sail Account, we will update your Sail Account activity on the website and provide you a transaction confirmation. The confirmation will serve as your receipt. Summaries of your Sail Account activity, including monthly statements, are available on our website for up to one year of account activity. Except as required by law,
you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your Sail Account and your use of the Service, and (b) reconciling all transactional information that is associated with your Sail Account. If you believe that there is an error or unauthorized transaction activity is associated with your Sail Account, you agree to contact us immediately.
At any time and from time to time, we may temporarily suspend or delay payments to you and/or designate an amount of funds that we must maintain in your Sail Account or in a separate reserve account (a "Reserve") to secure the performance of your payment obligations under this Agreement. We may require a Reserve for any reason, including if you have a high rate of chargebacks (described in Section XXI), refunds, or other indications of performance problems related to your use of the Service. The Reserve will be in an amount as reasonably determined by us to cover anticipated chargebacks, returns, unshipped merchandise and/or unfulfilled services or credit risk based on your processing history or such amount designated by our processor. The Reserve may be raised, reduced or removed at any time by us, in our sole discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you in our favor, or otherwise as we or out processor may determine or require. If you do not have sufficient funds in your Reserve, we may fund the Reserve from any funding source associated with your Sail Account, including but not limited to any funds (a) deposited by you, (b) due to you under this Agreement, or (c) available in your bank account, or other payment instrument registered with us. You grant us a security interest in and lien on any and all funds held in any Reserve, and also authorize us to make any withdrawals or debits from the Reserve, without prior notice to you, to collect amounts that you owe us under this Agreement, including without limitation for any reversals of deposits or transfers made to your Sail Account. You will execute any additional documentation required for us to perfect our security interest in any funds in the Reserve. This security interest survives for the later of: as long as we hold funds in your Reserve, or the expiration of your obligations under this Agreement, or any other agreement that you may have with us or our affiliates or processors.
XVI. SAIL ACCOUNT BALANCES.
You may, but are not required to, hold monetary balances that you receive in your Sail Account (your "Balance"). When you carry a Balance, your funds will be co-mingled and held with other participants' funds in one or more pooled accounts at one or more FDICinsured banks by us on your behalf and for the benefit of you and other users holding such balances (each a "Pooled Account"). US dollar balances held in the Pooled Account are eligible for FDIC pass-through insurance, meaning that your Balance may be insured up to the FDIC maximum, which is currently $250,000. We have sole discretion over the establishment and maintenance of any Pooled Account. Although your Balance (and others) may be held in a Pooled Account, these funds will at all times be held separate from our corporate funds. We will not use your funds for our corporate purposes (including the granting of any security or similar interest), will not voluntarily make funds available to our creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit our creditors to attach the funds. You will not receive interest or any other earnings on any funds that we handle for you. As consideration for
using the Service, you irrevocably assign to us all rights and legal interests to any interest and/or other earnings that may accrue or are attributable to our holding of your Balance in a Pooled Account or Reserve (described in the preceding section).
When your customer is present at the time of the transaction and signs the VeriFone Signature Screen, you benefit from the Network Rules for card present transactions. You agree to request that your customer personally sign for all transactions greater than $25.00 when your customer is present. You must make a written receipt available to your customers for any transaction greater than fifteen dollars ($15.00). You may give your customers the option to receive or decline a written receipt. As a convenience, but not in lieu of a written receipt, you may also offer VeriFone electronic receipts for delivery through SMS (if available) or email to your customers. If you operate a 501(c)(3) organization you may offer VeriFone electronic receipts to your donors as a convenience, by completing the required fields in the "Tax and Reporting" section of our website. You acknowledge that not all payments made to your organization may be eligible for classification as "tax deductible to the extent allowed by law," and you assume full responsibility for the classification of your transactions, and shall indemnify us therefore.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason ("Taxes") in connection your use of the Services . You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. 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. If in a given calendar year you receive (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, we will report annually to the Internal Revenue Service ("IRS"), as required by law, your name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments you receive in a calendar year, and the total dollar amount of the payments you receive for each month in a calendar year. If you do not provide us with your SSN or your EIN, in subsequent years, and depending on applicable law, we may be required to holdback funds otherwise due to you, and/or provide a report to the IRS regarding your failure to properly provide us with the required (or inaccurate) information.
XIX. CUSTOMER SERVICE.
You are solely responsible for all customer service issues relating to your goods or services, including pricing, order fulfillment, order cancellation by you or any customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from
us. As between you and us, we are solely responsible for customer service issues relating to any Sail Account, payment, card processing, debiting or crediting.
XX. REFUNDS AND RETURNS.
By accepting payment card transactions using the Services, you agree to process returns of, and provide refunds and adjustments for, your goods or services through your Sail Account in accordance with this Agreement and Network Rules. Network Rules require that you will (a) maintain a fair return, cancellation or adjustment policy; (b) disclose your return or cancellation policy to customers at the time of purchase, (c) not give cash refunds to a customer in connection with a card sale, unless required by law, and (d) not accept cash or any other item of value for preparing a card sale refund. The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the customer for postage (or other method) that the customer paid to return merchandise. If you accept returns and are making an uneven exchange of merchandise (e.g., the sales price is not the same), you must issue a credit for the total amount of the merchandise being returned and complete a new sale for any new merchandise. Please be aware, if your refund policy prohibits returns or is unsatisfactory to the buyer, you may still receive a chargeback relating to such sales. You can process a refund through your Sail Account up to sixty (60) days from the day you accepted the payment. If your Sail balance is insufficient to cover the refund, we will request your authorization to withdraw up to the requested refund amount from your bank account. We will then withdraw the amount you were paid (the sale amount minus the initial transaction fee) from your bank account, and credit it back into your customer.s card. The Fees are also refunded by us, so the full purchase amount is always returned to your customer. We have no obligation to accept any returns of any of your goods or services on your behalf.
The amount of a transaction may be reversed or charged back to your Sail Account (hereafter, a "Chargeback") if the transaction (a) is disputed, (b) is reversed for any reason by the Network, our processor, or a customer.s or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement. For any transaction that results in a Chargeback, we may withhold the Chargeback amount in the Reserve. We may deduct the amount of any Chargeback and any associated Fees, fines, or penalties listed in the Fee Schedule or assessed by the payment card networks or our processor from your Sail Account (including, without limitation, any Reserve), any proceeds due to you, your bank account, or other payment instrument registered with us. If you have pending Chargebacks, we may delay payouts from your Sail Account. 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. 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 all Sail Account deficit balances unpaid by you. If we determine that you are incurring an excessive amount of Chargebacks, we may establish controls or conditions governing your Sail Account, including without limitation, by (a) establishing new processing fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payouts, and (d) terminating or suspending the Service. You agree to assist us when requested, at your expense, to investigate any of your transactions processed through the Service. To that end, you permit us to share information about a Chargeback with the merchant, the merchant's financial institution, and your financial institution in order to investigate and/or mediate a Chargeback. We will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, we will release the reserved funds to your Sail Account. If a Chargeback dispute is not resolved in your favor by the payment card network or issuing bank or you choose not to contest the Chargeback, we may recover the Chargeback amount and any associated fees as described in this Agreement. You acknowledge that your failure to timely assist us in investigating a transaction, including providing necessary documentation within fifteen (15) days of our request, may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.
XXII. OUR SET-OFF RIGHTS.
To the extent permitted by law, we may set off against the Balances for any obligation you owe us under this Agreement, including without limitation any Chargebacks. All Fees are charged at the time we process a transaction and are deducted first from the transferred or collected funds and thereafter from the Balance in your Sail Account. If you owe us an amount that exceeds your Balance, we may charge or debit a payment instrument registered to your Sail Account. 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.
XXIII. INACTIVE SAIL ACCOUNTS.
If there is no activity in your Sail Account (including access or payment transactions) for at least 1 year, consecutively, and you have a Balance, we will notify you by sending an email to your registered email address and give you the option of keeping your Sail Account open and maintaining the Balance, withdrawing the Balance, or requesting a check. If you do not respond to our notice within thirty (30) days, we will automatically close your Sail Account and escheat your funds in accordance with applicable law.
XXIV. OUR PROCESSING ERRORS.
We will attempt to rectify processing errors that we discover. If the error resulted in your receipt of less than the correct amount to which you were entitled, we will credit your Sail Account for the difference. If the error results in your receipt of more than the correct amount to which you were entitled, we will debit the extra funds from your Sail Account. We 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.
XXV. PRIVACY OF OTHERS.
By using the Service, you may receive information about Payers or other users. You must keep such information confidential and only use it in connection with the Service. You may not disclose or distribute any such information to any third party or use the information for marketing purposes unless you receive the express consent of the applicable Payer or other user, and VeriFone.
XXVI. DISCLOSURES AND NOTICES.
You consent that we may provide disclosures and notices required by law and other information about your Sail Account to you electronically by posting it on our website, or if such notices or disclosures contain sensitive financial information, by emailing it to the email address listed in your Sail 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 are considered received by you within 24 hours of the time it or they were posted to our website, or emailed to you, unless we receive notice that the email was not delivered.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will not be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal or financial information at your own risk.
XXVIII. YOUR RIGHT TO TERMINATE.
You may terminate this Agreement by closing your Sail Account at any time. Upon closure of a Sail Account, any pending transactions will be cancelled. Any funds that we are holding in custody for you at the time of closure, less any applicable Fees, will be paid out to you according to the payout schedule set forth hereinabove, and is subject to the terms and conditions of this Agreement, assuming all payout-related authentication requirements have been fulfilled (for example, you may not close your Sail Account as a means of evading your payout schedule). If an investigation is pending at the time you close your Sail Account, we may hold your funds as described herein. If you are later
determined to be entitled to some or all of the funds in dispute, we will release those funds to you.
XXIX. TERMINATION BY US.
We may terminate this Agreement and close your Sail Account for any reason or no reason at any time upon notice to you. We may also suspend the Service and access to your Sail Account (including the funds in your Sail Account) if you (a) have violated any terms of this Agreement, (b) pose an unacceptable credit or fraud risk to us, (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct; and/or (d) as otherwise provided in this Agreement.
XXX. EFFECT OF TERMINATION.
If your Sail Account is terminated, you agree: (a) to continue to be bound by those provisions of this Agreement which survive termination, (b) to immediately stop all use of the Service, (c) that any license provided under this Agreement (including any license provided under any agreement incorporated into this Agreement) shall terminate , (d) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, and (e) that VeriFone shall not be liable to you or any third party for termination of access to the Service or deletion of your information or account data. We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Service, or any termination of the Service. Any termination of this Agreement does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement.
You will indemnify, defend and hold us, our processors and the payment card networks harmless (and ours or their respective employees, officers, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, Tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys. fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our Policies or the Network Rules; (b) your wrongful or improper use of the Service; (c) any transaction submitted by you through the Service (including without limitation the accuracy of any product information that you provide or any claim or dispute arising out of products or services offered or sold by you); (d) your violation of any third- party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (e) your violation of any law, rule or regulation of the United States, any individual state or any other country; (f) any other party's access and/or use of the Service with your unique username, password or other appropriate security code.
XXXII. NO WARRANTIES.
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US, OUR PROCESSOR(S) OR AFFILIATES OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, VERIFONE , ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, OFFICERS, REPRESENTATIVES, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE OR SOFTWARE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE 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. VERIFONE DOES 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 VERIFONE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND ANY THIRD- PARTY PROVIDERS OF PRODUCTS OR SERVICES (INCLUDING ANY AGREEMENT THAT YOU MAY ENTER INTO WITH OUR PROCESSOR).
XXXIII. LIMITATION OF LIABILITY; LIMITATION ON DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VERIFONE , ITS PROCESSORS, SUPPLIERS OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, OFFICERS, REPRESENTATIVES, DIRECTORS AND/OR EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, IDENTITY THEFT, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL VERIFONE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR SAIL ACCOUNT OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VERIFONE , AND ITS PROCESSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OFFICERS, REPRESENTATIVES AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE
WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL VERIFONE , ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, OFFICERS, REPRESENTATIVES, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF VERIFONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
We conduct routine maintenance on the Service, and we reserve the right to shut down the Service with no notice should emergency maintenance become necessary. The Service is controlled and operated from our facilities in the United States. We make no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable Federal, state and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
Except with respect to those policies, consents, statements, laws and Network Rules as expressly provided in this Agreement, these terms are a complete statement of the Agreement between you and us with respect to the Service, and describes the entire liability of us and our vendors and suppliers (including processors) and your exclusive remedy with respect to your access and use of the Service. If any provision of this Agreement is 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.
XXXVI. GOVERNING LAW; NO WAIVERS.
This Agreement will be governed by Delaware law as applied to agreements entered into and to be performed entirely within Delaware, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction, and applicable federal law. 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.
XXXVII. MANDATORY ARBITRATION.
All disputes arising from or in connection with this Agreement shall be solely and finally settled by binding arbitration conducted by a single, neutral and impartial arbitrator, mutually acceptable to the parties, who is an attorney with reasonable experience in the information technology industry. Any such arbitration shall be conducted in San Jose, California and in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (such rules, together with the applicable provisions of such procedures, the "AAA Rules"). The parties shall select a single arbitrator to hear the matter; provided that if the parties are unable to agree, the arbitrator shall be selected by the AAA. Any decision made by the arbitrator shall be final, binding and conclusive on the parties and each party to the arbitration shall be entitled to enforce such decision to the fullest extent permitted by law and entered in any court of competent jurisdiction. The parties further agree that the prevailing party in the arbitration shall be entitled to recover its costs of arbitration or of any related court proceedings (including attorneys' fees and expenses), collection agency fees, and any applicable interest. The arbitrator.s award shall be final and binding on the parties, who undertake to fulfill the terms of the award without delay. Judgment on the award may be entered in any court of competent jurisdiction.
XXXVIII. LIMITATION ON TIME TO SUE.
Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty or right arising under this Agreement or by law must commence within one year after the cause of action accrues.
XXXIX. RIGHT TO AMEND.
Except as set forth above with respect to our right to modify fees on 30 days prior notice to you, we have the right to change, remove 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 Service with any or no notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice on our website at VeriFone.com or any other website maintained or owned by us for the purposes of providing services in terms of this
Agreement. Any use of the Service 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, but may be assigned by us without restriction.
XLI. THIRD PARTY SERVICES AND LINKS TO OTHER WEB SITES.
XLII. OTHER PROVISIONS.
Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you, Verifone and our processor, with respect to the provision of the Service. In the event of a conflict between this Agreement and any other VeriFone agreement or policy, this Agreement shall prevail on the subject matter of this Agreement.
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: II, VI-X, XII-XIII, XVI, and XVIII-XLIII.
Electronic Communications Disclosure Policy (E-Consent Policy)
Last Update: March 7, 2012 This policy describes how SAIL delivers communications and disclosures to you electronically. We may add to, change or delete any of these terms (so as not to bump up a state law that would prohibit additions without the specific right to add) at any time by posting a revised version of the policy on our website (www.verifone.com) , or sending you a notice by email or in writing. The revised version will be effective immediately as of its posting.
1. Electronic delivery of communications
By agreeing to our E-consent policy, you agree and consent to receive electronically all communications, agreements, documents, notices, billing statements and disclosures (collectively, "Communications") that we provide in connection with your SAIL account ("Account") and your use of our services. You also agree that your electronic signature on any agreements or documents on SAIL has the same effect as a physical signature. We will provide these Communications to you by posting them on the SAIL website and/or by emailing them to you at the email address listed in your SAIL Profile. You may obtain paper copies of any Communications by printing them out, or by contacting us and requesting that we mail paper copies to the address listed in your Account Profile.
2. Electronic Communications requirements
In order to access and retain electronic Communications, you will need the following computer hardware and software: ● a computer with an Internet connection; ● a current web browser that includes 128-bit encryption (e.g. Internet Explorer version 6.0 and above, Firefox version 2.0 and above, Chrome version 3.0 and above, or Safari 3.0 and above) with cookies enabled; ● a valid email address; and
● sufficient storage space to save past Communications and/or an installed printer to print them. We will notify you if there are any changes to the hardware or software needed to receive electronic Communications from SAIL. By giving your consent to our policy, you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records. You may print or save a copy of any of these Communications for your records, as they may not be accessible online at a later date.
3. Withdrawal of consent
You may withdraw your consent to receive Communications electronically by contacting us at 855-SAILPAY (855-724-5729), emailing us at email@example.com, or by writing to us at VeriFone, Inc. Attn: Privacy Officer 2099 Gateway Place, Suite 600 San Jose, CA 95110-1093 Fax: (408) 232-7841 If you fail to provide, or if you withdraw, your consent to receive Communications electronically, SAIL reserves the right to deny your application for an Account, restrict or deactivate your Account, or close your Account.
4. Requesting paper copies of electronic Communications
If after you consent to receive Communications electronically, you would like a paper copy of a Communication we previously sent you, you may request a copy within 180 days of the date we provided the Communication to you by contacting us as described above. We will send your paper copy to you by U.S. mail to the street address on file as your “Home Address” in your SAIL Profile. We reserve the right to impose a fee for copies.
5. Updating your contact information
It is your responsibility to keep your email address up-to-date so that SAIL can communicate with you electronically. You understand and agree that if SAIL makes available or sends you an electronic Communication but you do not receive it because your email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, SAIL will be deemed to have provided the Communication to you. Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add SAIL to your email address book so that you will be able to receive the Communications we send you. You can update your email address or street address at any time by logging into the SAIL website and visiting the "Account" tab. If your email address becomes invalid such
that electronic Communications sent to you by SAIL are returned, SAIL may deem your Account to be inactive, and you will not be able to transact any activity using your SAIL Account until we receive a valid, working email address from you.
When you visit the SAIL website, we collect your IP address and standard web log information, such as your browser type and the pages you accessed on our website. When you create an account, we collect the following types of information from you: ● Owner information - owner name, date of birth, address, phone, email, and other similar information. ● Business Information - business name, business address, industry, Federal Tax ID number (if applicable), and other similar information. When you use or access your SAIL account, we may collect additional information, including: ● Bank account and payment card numbers to enable settlement, other relevant information about the financial institutions you use to conduct business. ● The location and other details related to your account transactions, including information about your device. Before permitting you to use our service, we may require you to provide additional information we can use to verify your identity or address or manage risk, such as your complete social security number or other information. We may also obtain information about you from third parties such as credit bureaus and identity verification services. Finally, we may collect additional information from or about you in other ways not specifically described here. For example, we may collect information related to your contact with our customer support team or store results when you respond to a survey.
When you access our website, we, or companies we hire to track how our website is used, may place small data files called "cookies" on your computer. We send a "session cookie" to your computer when you log in to your account. This type of cookie helps us to recognize you if you visit multiple pages on our site during the same session, so that we don't need to ask you for your password on each page. Once you log out or close your browser, this cookie expires and no longer has any effect.
Throughout this policy, we use the term "personal information" to describe information that can be associated with a specific person and can be used to identify that person. We do not consider personal information to include information that has been anonymized so that it does not identify a specific user. We store and process your personal information on our computers in the US, and we protect it by maintaining physical, electronic and procedural safeguards that both meet and exceed applicable US federal and state regulations. We use computer safeguards such as firewalls and data encryption, we enforce physical access controls to our
buildings and files, and we authorize access to personal information only for those employees who require it to fulfill their job responsibilities. We do not sell or rent your personal information with anyone for promotional or marketing purposes. Our primary purpose in collecting personal information is to provide you with a safe, smooth, efficient, and customized experience. We may use your personal information to: ● Provide the services and customer support you request; ● Process transactions and send notices about your transactions; ● Resolve disputes and troubleshoot problems; ● Prevent potentially prohibited or illegal activities; ● Customize, measure, and improve our services and the content and layout of our website; ● Compare information for accuracy and verify it with third parties.
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