I-Pay Merchant Agreement
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING THE I-PAY WEBSITE OR USING I-PAY SERVICES, YOU AGREE TO BE BOUND BY THIS 1) I-PAY MERCHANT AGREEMENT, THE 2) I-PAY ACCEPTABLE USE POLICY, THE 3) I-PAY ELECTRONIC COMMUNICATIONS DELIVERY POLICY, AND THE 4) I-PAY PRIVACY POLICY. IF YOU DO NOT AGREE WITH THESE TERMS, PLEASE DO NOT ACCESS THE I-PAY WEBSITE OR USE THE I-PAY SERVICE. THE HEADINGS CONTAINED IN THIS AGREEMENT ARE FOR REFERENCE PURPOSES ONLY. YOU SHOULD PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
1. Our Agreement.
This Merchant Agreement, including any amendments, addendums, schedules, exhibits, and/or attachments, describes a contractual relationship ("Agreement") between you ("you", "your", or "Merchant") and I-Pay Inc. and/or Fyntech Ventures. (collectively, "I-Pay," "we," "us," "our") regarding your use of the I-Pay website ("Website"), your use of the I-Pay service as described below, and your access to your I-Pay account information and service through the Website (together, the "I-Pay Services" or "Services") concerning services and/or products rendered to consumers ("User," "I-Pay User," "Shopper"). Unless otherwise specified, this Merchant Agreement applies to you regardless of where you are residing internationally. Using I-Pay Services means that you must accept all of the terms and conditions contained in this Agreement and the agreements on the Legal Agreements page including the Privacy Policy, the Acceptable Use Policy, and the Electronic Communications Delivery Policy. You should read all of these terms carefully.
This Merchant Agreement, including any amendments, addendums, schedules, exhibits, and/or attachments, describes a contractual relationship ("Agreement") between you ("you", "your", or "Merchant") and I-Pay Inc. and/or Fyntech Ventures. (collectively, "I-Pay," "we," "us," "our") regarding your use of the I-Pay website ("Website"), your use of the I-Pay service as described below, and your access to your I-Pay account information and service through the Website (together, the "I-Pay Services" or "Services") concerning services and/or products rendered to consumers ("User," "I-Pay User," "Shopper"). Unless otherwise specified, this Merchant Agreement applies to you regardless of where you are residing internationally. Using I-Pay Services means that you must accept all of the terms and conditions contained in this Agreement and the agreements on the Legal Agreements page including the Privacy Policy, the Acceptable Use Policy, and the Electronic Communications Delivery Policy. You should read all of these terms carefully.
2. What is I-Pay?
I-Pay is a technology that enables Users to pay for purchases in store or online and convert their purchases into a installment Payment Plan, or any other plan I-Pay may offer to Users. Users can use I-Pay through the web, via a mobile Application or any other interface. To start using I-Pay as a Merchant, you need to open a I-Pay Account. I-Pay initially serves as a third party service provider to the Merchant in the purchase process, enabling Merchants to offer an Profit Free Payment Plan to their shoppers.
At the time of purchase, the Merchant owns the Instalment Payment Plan. Immediately after a purchase through I-Pay, the Merchant automatically assigns the Instalment Payment Plan to I-Pay or the corresponding bank
To become a Merchant using I-Pay Services, you must create a I-Pay Merchant Account. By opening a Merchant Account and accepting the terms as outlined in this Agreement, you attest that you are establishing the Account to enable yourself to provide the full I-Pay functionality to Merchant's customers during the Term which enables Merchant’s customers to make purchases utilizing I-Pay. By opening a Merchant Account and accepting the terms as outlined in this Agreement, you attest that you are not establishing the Account primarily for personal, family, or household purposes. During the term of the Agreement, you agree to enable I-Pay as a payment method within your checkout page, which shall be made available to 100% of your customers who utilize your site and or you physical store.
3. Using I-Pay To Accept Payments and Drive Shopper Engagement.
You can receive money for purchases from I-Pay Users when you implement I-Pay functionality on any of your user interfaces. These interfaces include, but are not limited to, your business’s website(s), your business’s application(s) or your business’s point of sale device(s). When you receive money for a product or service through I-Pay, I-Pay begins to collect payments from the applicable I-Pay User Account and credits your Merchant Account for the value of the agreed upon transaction amount minus any I-Pay fees. Payment acceptance through I-Pay and other I-Pay Services constitutes a binding agreement by you, the Merchant, to provide the product or services purchased in the transaction. When you receive money for purchases with I-Pay, you will see the credit in your Merchant Account as soon as the transaction was initiated. I-Pay relies on our partners, third party systems, and institutions to facilitate transfers via EFT and other methods. Because of this reliance on other parties, and for our risk management and internal controls, your balance is not immediately available for withdrawal.
You agree that you will not impose a surcharge or any other fee for accepting I-Pay as a payment method. You may charge a handling fee in connection with the sale of goods or services as long as the handling fee does not operate as a surcharge and is not higher than the handling fee you charge for non-I-Pay transactions.
It is your responsibility to determine what, if any, taxes apply to the payments you make or receive, and it is your responsibility to collect, report and remit the correct tax to the appropriate tax authority. I-Pay is not responsible for determining whether taxes apply to your transaction, or for collecting, reporting or remitting any taxes arising from any transaction. You acknowledge that I-Pay or any of its partners will report to tax authorities the total amount of payments for goods and services you receive each calendar year into all the Accounts you own if you receive into these Accounts (i) more than $20,000 in payments for goods or services and (ii) receive more than 200 payments for goods or services in the same calendar year.
To sell goods or services, you will publish a return policy and a privacy policy on your website. You agree that you will not impose a different return policy for consumers using I-Pay as a payment method. You may impose return processes and fees in connection with the return of goods or services as long as those processes and fees do not operate differently for I-Pay and non-I-Pay transactions.
If a payment is subject to Payment Review, I-Pay will place a hold on the payment and provide notice to the User and the Merchant. I-Pay will conduct a review and either clear or cancel the payment. If the payment is cleared, I-Pay will provide notice to the User and the Merchant. Otherwise, I-Pay will cancel all payments initiated.
4. Payments and Merchant Profit Program.
Funds from I-Pay transactions typically settle into your external bank account one (1) to seven (7) Business Days from when the transaction is fully processed by I-Pay. Merchant is required to have proper and active bank account information on file with I-Pay during the term of the contract and for thirty (30) Days following cancellation, termination or expiration of the Agreement. The exact settlement time will depend on explicit agreements and approval decisions made by I-Pay's staff. In some cases, due to risk decisions, delayed shipment, made-to-order products, or excessive Dispute levels, I-Pay may implement a settlement time longer than this initial range. You will be notified of any proposed settlement changes 1 business day before these changes are implemented. Participants in the Merchant Profit Program agree to different settlement times per the Merchant Profit Program requirements. Orders placed after midnight GMT are considered as orders placed on the next business day for settlement purposes. Settlements to bank accounts outside of the United States may experience prolonged processing timelines outside of I-Pay's control.
Certain Merchants have the opportunity to participate in the Merchant Profit Program. Not all I-Pay Merchants are guaranteed access to the Merchant Profit Program. Please see your Merchant Dashboard or contact your I-Pay representative to check for access.
For Merchants participating in the Merchant Profit Program, funds will receive profit earnings at the I-Pay daily rate published in the Merchant Dashboard and compounded on a daily basis. I-Pay reserves the right to impose limits on your Merchant Profit Program and make changes to your Merchant Profit Program without notice or limits. These limits and/or changes to your Merchant Profit Program can include, but are not limited to, maximum balances, withdrawal amount limits, withdrawal frequency, the I-Pay daily rate for all or a portion of your specific Merchant Profit Program balance, and the ability for you to participate in the Merchant Profit Program.
Under the Merchant Profit Program, the maximum amount you can withdraw during any seven (7) day period is two hundred and fifty thousand dollars ($250,000 United States or Canadian dollars). Any request greater than two hundred and fifty thousand dollars ($250,000 United States or Canadian dollars) will be honored in seven (7) Days.
In most cases, your account balance with I-Pay will provide the necessary funds to process i) returns and refunds and ii) reconcile fees owed to I-Pay. In cases where (i) your account balance with us does not cover the amount of the refund, or (ii) you are utilizing the virtual card network settlement option, you authorize I-Pay to automatically process via auto-debit/ACH of the Merchant account on a daily basis but no later than five (5) business days after the fees have been accrued.
5. I-Pay's Fees.
Some fees are expressed as a percentage of the payment amount. All fees are in the currency of the sale unless otherwise stated. We reserve the right to adjust your future fees at our sole discretion upon 30 Days written notice to you. Unless an overriding agreement states otherwise, our fees follow the schedule described in this section.
Our standard payment processing fee is 3% plus 30¢ per transaction. The standard rate may vary by industry classification and could be higher due to our view of the associated risk profile of the industry. The Merchant will be notified via email following the approval of the application if the rate varies from our standard payment processing fee. We reserve the right to increase processing fees in the future if our view of the Merchant's risk profile changes. If a decision is made to increase the processing rate for the Merchant, I-Pay will notify the Merchant via email.
If you refund a payment, I-Pay retains the original payment processing fee but charges no additional fees for the refund. I-Pay will handle all payments to the I-Pay User to complete the refund.
As currency prices vary constantly, it’s not possible to know for certain the Foreign Exchange (FX) rate you’ll receive on a settlement. The online rate you see at various sites, such as XE.com, is the mid-market rate: the average prices at which people are buying and selling the currency. The actual FX rate includes markups from financial institutions. When I-Pay performs an FX conversion to settle your payments, funds are usually converted at a rate approximately 2.5% above the daily mid-market rate.
6. Disputes with Users.
I-Pay provides communication tools within the User Account and Merchant Account interfaces to improve the dispute resolution process. To aid with the dispute process, we also allow Merchants to refund transactions directly within the dispute management system and elsewhere within the Merchant Account interface. In an effort to minimize User disputes, Merchant will post or otherwise expressly provide expected shipping times in a location and format easily identified by the User.
In order to aid with disputes between Merchants and Users, I-Pay reserves the right to withhold or reverse payouts to Merchants if it is deemed that the Merchant has failed to provide the value promised to the User in the Dispute in question. In the event of a Dispute Resolution, I-Pay will notify the Merchant to allow them to provide evidence supporting their decisions in this Dispute. A Merchant is required to provide a trackable shipment code to both I-Pay and the User in order to provide proof of fulfilling the order to the User.
A Merchant is required to respond with a relevant response to a dispute with evidence within two (2) Business Days of the dispute. If the Merchant fails to respond with a relevant response to the dispute within the required response time, the Merchant will lose the Dispute. Users are required to respond to additional information requests with a relevant response within (2) Business Days to keep a Dispute active. Should Merchant repeatedly fail to respond to Disputes or have an unreasonably large volume of Disputes, I-Pay reserves the right to implement measures to protect the Users including a) extending the payout to up to thirty (30) Days; b) refund Disputed amounts through the Merchant portal after providing two day’s advance notice; c) freeze, hold or close Merchant’s account; and/or d) take actions in accordance with Section 11.4.
I-Pay, at its sole discretion, will determine if a merchant is experiencing an excessive dispute volume. If a merchant experiences excessive dispute volumes, I-Pay reserves the right to delay or change a Merchant's payout schedule, even if that payout schedule was part of an agreed upon contract with I-Pay.
7. Our Communication.
You agree that I-Pay may provide you Communications about your Account and I-Pay Services electronically as described in our Electronic Communications Delivery Policy. Any electronic communications will be considered to be received by you within 1 hours after the time we post it to our website or email it to you. Any communications sent to you by postal mail will be considered to be received by you 3 Business Days after we send it.
Except as otherwise stated above in the Electronic Communications Delivery Policy, and herein, notice to I-Pay must be sent by postal mail to: Fyntech Ventures Ltd. 27 Old Gloucester Street, London, United Kingdom
In order to contact you more efficiently, we may at times contact you using calls or text messages at the telephone number(s) you have provided us. We may place such calls or texts to (i) provide notices regarding your Account or Account activity, (ii) investigate or prevent fraud, or (iii) collect a debt owed to us. You agree that we and our service providers may contact you using autodialed or prerecorded message calls and text messages to carry out the purposes we have identified above. We may share your phone number(s) with service providers with whom we contract to assist us in pursuing these profits, but will not share your phone number(s) with third parties for their own purposes without your consent. Standard telephone minute and text charges may apply. We and our service providers will not use autodialed or prerecorded message calls or texts to contact you for marketing purposes at the telephone number(s) you designate unless we receive your prior express written consent.
You understand and agree that I-Pay may, without further notice or warning and in our discretion, monitor or record telephone conversations you or anyone acting on your behalf has with I-Pay or its agents for quality control and training purposes or for its own protection. You acknowledge and understand that, while your communications with I-Pay may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by I-Pay, and I-Pay does not guarantee that recordings of any particular telephone calls will be retained or retrievable.
8. Marketing Your Brand and Our Privacy Policies.
By signing up with I-Pay, you are agreeing to let I-Pay use your company name, brand mark, social and public assets in I-Pay marketing materials and communications during the term of the Agreement.
You acknowledge and agree that you and I-Pay are each independent controllers of Regulated Information. To the extent that you provide I-Pay with Regulated Information of any User, you represent and warrant to I-Pay that you have obtained all required consents, and provided all required notices, to such User to allow I-Pay to process their Regulated Information in accordance with the Privacy Policy. If you receive Information (including Regulated Information) about a User through I-Pay Services, you must keep the Information confidential and only use it in connection with I-Pay Services. You may not disclose or distribute a User's Information to a third party or use the Information for marketing purposes unless you receive the User's express consent to do so. You may not send unsolicited email to a User or use I-Pay Services for sending, or assisting in sending, unsolicited emails to third parties.
You are responsible for maintaining adequate security and control of any and all IDs, passwords, personal identification numbers (PINs), or any other codes that you use to access I-Pay Services.
Each party agrees to protect the other party’s Confidential Information, using at least the same degree of care that it uses to protect its own confidential and proprietary information of similar importance, but no less than a reasonable degree of care. The receiving party may use and copy the Confidential Information only to the extent necessary for the performance of its obligations under the Agreement. The receiving party agrees not to disclose Confidential Information to any person except those affiliates and representatives who need to know such information in connection with the performance of the Agreement. The receiving party shall be responsible for any violation of the terms of this Section by its representatives or affiliates and shall promptly notify the disclosing party of any unauthorized use or disclosure of Confidential Information of which the receiving party becomes aware. The receiving party may disclose Confidential Information to the extent required by law, or with the prior written consent of the disclosing party. I-Pay is entitled to disclose Confidential Information to its subcontractors, external advisors and affiliates, provided that such parties are subject to confidentiality obligations at least as protective as those set forth in this section. In the event of legally required disclosure, the receiving party shall make reasonable efforts to give the disclosing party notice of such requirement prior to disclosure so that the disclosing party may seek a protective order or other appropriate remedy to prevent or limit the scope of disclosure.
9. Identifying You.
You authorize I-Pay, directly or through third parties, to make any inquiries we consider necessary to validate your identity. This may include asking you for further Information, requiring you to provide your date of birth, a taxpayer identification number and other Information that will allow us to reasonably identify you, requiring you to take steps to confirm ownership of your email address or financial instruments, ordering a credit report, or verifying your Information against third party databases or through other sources. We may also ask to see your driver’s license or other identifying documents at any time. I-Pay reserves the right to close, suspend, or limit access to your Account and/or I-Pay Services in the event we are unable to obtain or verify this Information.
10. Activities Restricted Throughout I-Pay Services.
In connection with your use of our website, your Account, I-Pay Services, or in the course of your interactions with I-Pay, other Users, or third parties, you will not:
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Breach this Agreement, the Acceptable Use Policy or any other agreement or policy that you have agreed to with I-Pay;
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Violate any law, statute, ordinance, or regulation (for example, those governing language , financial services, consumer protections, unfair competition, antidiscrimination or false advertising);
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Infringe I-Pay's or any third party's copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
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Provide false, inaccurate or misleading information;
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Send or receive what we reasonably believe to be potentially fraudulent funds;
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Refuse to cooperate in an investigation or provide confirmation of your identity or any Information you provide to us;
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Control an Account that is linked to another Account that has engaged in any of these Restricted Activities;
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Conduct your business or use I-Pay Services in a manner that results in or may result in complaints, Disputes, Reversals, fees, fines, penalties or other liability to I-Pay, Users, third parties or you;
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Have a credit score from a credit reporting agency that indicates a high level of risk associated with your use of I-Pay Services;
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Use your Account or I-Pay Services in a manner that I-Pay, or any other EFT network, reasonably believes to be an abuse of the EFT system or a violation of card association or network rules;
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Provide yourself a cash advance (or help others to do so);
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Take any action that imposes an unreasonable or disproportionately large load on our infrastructure; facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information; use an anonymizing proxy; use any robot, spider, other automatic device, or manual process to monitor or copy our website without our prior written permission; or use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere with our website, mobile App or I-Pay Services;
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Take any action that may cause us to lose any of the services from our Internet service providers, payment processors, or other suppliers;
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Use I-Pay Services to test payment behaviors;
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Circumvent any I-Pay policy or determinations about your Account such as temporary or indefinite suspensions or other limitations or restrictions, including, but not limited to, engaging in the following actions: attempting to create new or additional I-Pay Account(s) when an Account has been restricted, suspended or otherwise limited; creating new or additional I-Pay Accounts using information that is not your own (e.g. name, address, email address, etc.); or using someone else’s I-Pay Account; and/or
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Harass and/or threaten our employees, agents, or other Users.
11. Liability.
You are responsible for all Reversals, fees, fines, penalties and other liability incurred by I-Pay, a User, or a third party caused by or arising out of your breach of this Agreement, and/or your use of I-Pay Services. You agree to reimburse I-Pay, a User, or a third party for any and all such liability.
In the event that you are liable for any amounts owed to I-Pay, you authorize I-Pay to immediately remove such amounts from your Account or your bank account on file. If you do not have sufficient funds in your Account or your bank account, you acknowledge that I-Pay may engage in collection efforts to recover such amounts from you.
If I-Pay, in its sole discretion, believes that you may have engaged in any Restricted Activities, we may take various actions to protect I-Pay, Users, other third parties, or you from Reversals, fees, fines, penalties and any other liability. The actions we may take include but are not limited to the following:
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We may close, terminate, suspend, or limit your access to your Account or I-Pay Services (such as limiting your ability to accept payments, make withdrawals, or remove financial Information);
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We may contact Users you have interacted with, contact your bank, and/or warn other Users, law enforcement, or impacted third parties of your actions;
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We may update inaccurate Information you provided us;
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We may refuse to provide I-Pay Services to you in the future;
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We may hold any Balance for up to 180 Days if reasonably needed to protect us against the risk of liability or if you have violated our Acceptable Use Policy;
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We may take legal action against you; and
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If you violate the Acceptable Use Policy, then in addition to the above actions you will be liable to I-Pay for the amount of I-Pay's damages caused by your violation of the Acceptable Use Policy. You acknowledge and agree that the equivalent of $2,500.00 USD per violation of the Acceptable Use Policy is presently a reasonable minimum estimate of I-Pay's actual damages considering all currently existing circumstances, including the relationship of the sum to the range of harm to I-Pay that reasonably could be anticipated because, due to the nature of the violations of the Acceptable Use Policy, actual damages would be impractical or extremely difficult to calculate. I-Pay may deduct such damages directly from any existing Balance in the offending Account or any other Account you control. I-Pay, in its sole discretion, reserves the right to terminate this Agreement, access to its website, or access to I-Pay Services for any reason and at any time upon notice to you. Such notice will include payment to you of any unrestricted funds held in your Balance.
I-Pay, in its sole discretion, may take various actions including a) limitation on your Account or the funds in it; b) releasing any or all of your funds in the event it receives notice of a court order or other legal process that restricts the use of or access to your funds or requires their release; c) seeking injunctive relief for harm caused by Merchant which negatively impacts I-Pay’s risk profile or reputation; and/or d) any other remedy in law or equity. I-Pay will give notice of a limitation it makes to comply with a court order or other legal process, unless the court order or other process directs that I-Pay does not provide you notice, in which case the court order or other process supersedes any notice obligation I-Pay has undertaken or agreed to under the terms of this Agreement. I-Pay has no obligation to contest or appeal from any such order or process. Limitations on your account that are placed in response to a court order or other legal process may be maintained longer than 180 Days. I-Pay will decide in its sole discretion the appropriate scope of a limitation to assure compliance with a court order or other legal process. Additionally, in the event I-Pay receives notice of a garnishment or equivalent legal process directing the restraint of funds in your Account or directing payment of funds from your Account to the court or another third party, I-Pay may limit your Account and hold the funds in it for up to 180 Days, and may disburse funds from your Account, as needed, for the purpose of resolving any Dispute, Chargeback, or Reversal.
If we close your Account or terminate your use of I-Pay Services for any reason, we will provide you with notice of our actions. Except as expressly provided otherwise in this Agreement, if we limit access to your Account, including through a Reserve or hold, we will provide you with notice of our actions; we will also provide you with an opportunity to request restoration of access if, in our sole discretion, we deem it appropriate. Further, you acknowledge that I-Pay’s decision to take certain actions, including limiting access to your Account by placing holds or imposing Reserves, may be based on confidential criteria that are essential to our management of risk and the security of Users’ Accounts and the I-Pay system. You agree that I-Pay is under no obligation to disclose the details of its risk management or security procedures to you.
Each party will establish, maintain and implement an information security program, including appropriate administrative, technical and physical safeguards, designed to (i) ensure the security and confidentiality of Regulated Information, (ii) protect against any reasonably anticipated threats or hazards to the security or integrity of such Regulated Information, and (iii) protect against unauthorized access to or use of such Regulated Information that could result in substantial harm or inconvenience to the other party or a data subject/owner and/or violation of law. Each party complied, and is presently in compliance with its privacy policy and all third-party obligations and applicable laws regarding the collection, use, transfer, storage, protection, disposal and disclosure by it and its subsidiaries of Regulated Information.
IN NO EVENT SHALL WE, OUR PARENT AND AFFILIATES, AND THE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS OF I-PAY, OUR PARENT OR OUR AFFILIATES BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF DATA OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH OUR WEBSITE, THE I-PAY SERVICES, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE), UNLESS AND TO THE EXTENT PROHIBITED BY LAW. OUR LIABILITY, AND THE LIABILITY OF OUR PARENT AND AFFILIATES, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE ACTUAL AMOUNT OF DIRECT DAMAGES. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, I-PAY, OUR PARENT, AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES, AND SUPPLIERS ARE NOT LIABLE, AND YOU AGREE NOT TO HOLD THESE PARTIES RESPONSIBLE, FOR ANY DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO, LOSS OF MONEY, GOODWILL, OR REPUTATION, PROFITS, OR OTHER INTANGIBLE LOSSES OR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES) RESULTING DIRECTLY OR INDIRECTLY FROM: (1) YOUR USE OF OR YOUR INABILITY TO USE I-PAY’S SITES AND SERVICES; (2) DELAYS OR DISRUPTIONS IN I-PAY’S SITES AND SERVICES; (3) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING I-PAY’S SITES OR SERVICES OR ANY SITE OR SERVICE LINKED TO I-PAY’S SITES OR SERVICES; (4) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN I-PAY’S SITES OR SERVICES OR IN THE INFORMATION AND GRAPHICS OBTAINED FROM THEM; (5) THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES; (6) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT; (7) YOUR NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR YOUR LOSS OF OR INABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THIS MERCHANT AGREEMENT OR I-PAY’S POLICIES. I-PAY RESERVES THE RIGHT TO MODIFY ITS POLICIES AND THIS MERCHANT AGREEMENT AT ANY TIME CONSISTENT WITH THE PROVISIONS OUTLINED HEREIN.
THE I-PAY SERVICES ARE PROVIDED "AS IS" AND WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. I-PAY, OUR PARENT AND AFFILIATES, AND THE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS OF I-PAY, OUR PARENT OR OUR AFFILIATES, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. I-Pay does not have any control over the products or services that are paid for with I-Pay Services and I-Pay cannot ensure that a buyer or a Seller you are dealing with will actually complete the transaction or is authorized to do so. I-Pay does not guarantee continuous, uninterrupted or secure access to any part of I-Pay Services, and operation of our site may be interfered with by numerous factors outside of our control. I-Pay will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and check issuances are processed in a timely manner but I-Pay makes no representations or warranties regarding the amount of time needed to complete processing because I-Pay Services are dependent upon many factors outside of our control, such as delays in the banking system or the U.S. and Canada or international mail service. Certain I-Pay Services may not be available to you based on residency, geographic location or other eligibility criteria. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. This paragraph gives you specific legal rights and you may also have other legal rights that vary from state to state, country to country.
Each party agrees to comply with all applicable laws and regulations including, but not limited to, regulations around anti-corruption, anti-bribery, export, data protection, data security, prohibition of modern slavery/human trafficking and equal opportunity. Failure to comply with this section shall be a material breach. Additionally, Merchant will comply with the Partner Code of Conduct.
If a Party is unable to perform or is delayed in performing, in whole or in part, its obligations under this Agreement, as a direct result of a Force Majeure Event affecting such Party, then that Party shall promptly notify the other Party of the Force Majeure Event with reasonably full particulars and timing of such event. Such Party also shall promptly notify the other Party when the Force Majeure Event terminates or no longer adversely affects its ability to perform under this Agreement. The obligations of the Party giving notice, so far as they are affected by the Force Majeure Event, shall be suspended during, but not longer than, the continuance of the Force Majeure Event, and any failure to perform or adhere to any obligation or covenant hereunder shall not constitute a Termination Event, I-Pay Termination Event, or Merchant Termination Event, as applicable.
12. Limitations upon Account Closure.
If we are conducting an investigation on your account, we may hold your Balance for up to 180 Days to protect I-Pay, its affiliates, or a third party against the risk of Reversals, fees, fines, penalties and other liability. You will remain liable for all obligations related to your Account even after the Account is closed. You agree to an extended funds settlement period of 42 Days at account closure to ensure funds are available for returns and refunds.
13. Disputes with I-Pay.
If a dispute arises between you and I-Pay, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. Disputes between you and I-Pay regarding the I-Pay Services may be reported to support@I-Pay.com or by calling +43 684248818 from 9 AM to 5 PM, Central European Time.
You agree that, except to the extent inconsistent with or preempted by federal law and except as otherwise stated in this Merchant Agreement, the laws of the State of Delaware, without regard to principles of conflict of laws, will govern this Merchant Agreement and any claim or dispute that has arisen or may arise between you and I-Pay.
You and I-Pay each agree that any and all disputes or claims that have arisen or may arise between you and I-Pay, including without limitation federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation or any other legal theory,shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. This Agreement to Arbitrate is intended to be broadly interpreted. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
YOU AND I-PAY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND I-PAY AGREE OTHERWISE, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator or arbitrators instead of a judge or jury, and court review of an arbitration award is very limited. However, the arbitrator(s) can award the same damages and relief on an individual basis that a court can award to an individual. The arbitrator(s) also must follow the terms of this Merchant Agreement as a court would. All issues are for the arbitrator(s) to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of subsection (13.3.1) of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
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The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org. A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”). The Notice to I-Pay should be sent to I-Pay, Inc., Attn: Litigation Department, Re: Notice of Dispute, PO Box 24218, Minneapolis, MN 55424. I-Pay will send any Notice to you to the physical address we have on file associated with your I-Pay Account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided including a description of the nature and basis of the claims the party is asserting and the relief sought. If you and I-Pay are unable to resolve the claims described in the Notice within 30 Days after the Notice is sent, you or I-Pay may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's website at www.adr.org. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or I-Pay may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and I-Pay subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or I-Pay may attend by telephone, unless the arbitrator(s) require otherwise. Any settlement offer made by you or I-Pay shall not be disclosed to the arbitrator(s).
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The arbitrator(s) will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator(s) shall not be bound by rulings in prior arbitrations involving different I-Pay Users, but is/are bound by rulings in prior arbitrations involving the same I-Pay User to the extent required by applicable law. The award of the arbitrator(s) shall be final and binding, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules unless otherwise stated in this Agreement to Arbitrate. At your request, I-Pay will pay as much of the filing, administration, and arbitrator fees as the arbitrator(s) deem necessary to prevent the cost of accessing the arbitration from being prohibitive. In the event the arbitrator(s) determine the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse I-Pay for all fees associated with the arbitration paid by I-Pay on your behalf that you otherwise would be obligated to pay under the AAA's rules.
With the exception of any of the provisions in subsection (13.3.1) of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), if a court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If a court decides that any of the provisions in subsection (13.3.1) of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief") is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of this Merchant Agreement will continue to apply.
Notwithstanding any provision in this Merchant Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against I-Pay prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and I-Pay. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.I-Pay.com at least 30 days before the effective date of the amendments and by providing notice through email. If you do not agree to these amended terms, you may close your account within the 30 day period, and you will not be bound by the amended terms.
If any proceeding by or against you is commenced under any provision of your government's bankruptcy code or under any other bankruptcy or insolvency law, I-Pay will be entitled to recover all reasonable costs or expenses (including reasonable attorneys' fees and expenses) incurred in connection with the enforcement of this Agreement.
Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
You agree to defend, indemnify and hold I-Pay, our parent, Affiliates and the officers, directors, agents, joint venturers, employees and suppliers of I-Pay, our parent, or our Affiliates, harmless from any claim or demand (including attorneys’ fees) made or incurred by any third party due to or arising out of your breach of this Agreement, your improper use of I-Pay Services, and/or your violation of any law or the rights of a third party.
If you have a dispute with one or more Users, you release I-Pay (and our parent, our Affiliates, and our and their respective officers, directors, agents, joint ventures, employees and suppliers) from any and all Claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release, you expressly waive any protections that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
14. Our Intellectual Property and Your Use of It.
"I-Pay.com," "I-Pay," and all logos related to I-Pay Services are either trademarks or registered trademarks of I-Pay or I-Pay’s licensors. You may not copy, imitate or use them without I-Pay’s prior written consent. Also, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of I-Pay. You may not copy, imitate, or use them without our prior written consent. You may use HTML logos provided by I-Pay through our Merchant services or affiliate programs without prior written consent for the purpose of redirecting web traffic to I-Pay Services. You may not alter, modify or change these HTML logos in any way, use them in a manner that is disparaging to I-Pay or I-Pay Services or display them in any manner that implies I-Pay’s sponsorship or endorsement. All right, title and profit in and to the I-Pay website, any content thereon, I-Pay Services, the technology related to I-Pay Services, and any and all technology and any content created or derived from any of the preceding is the exclusive property of I-Pay and its licensors.
If you are using I-Pay software such as an API, developer's toolkit or other software application that you have downloaded to your computer, device, or other platform, then I-Pay grants you a revocable, non-exclusive, non-transferable license to use I-Pay's software in accordance with the documentation. This license grant includes the software and all updates, upgrades, new versions and replacement software for your personal use only. You may not rent, lease or otherwise transfer your rights in the software to a third party. You must comply with the implementation and use requirements contained in all I-Pay documentation accompanying I-Pay Services. If you do not comply with I-Pay’s implementation and use requirements you will be liable for all resulting damages suffered by you, I-Pay and third parties. I-Pay may change or discontinue any APIs upon notice to you. You agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the software. You acknowledge that all rights, title, and profit to I-Pay’s software are owned by I-Pay. Any third party software application you use on the I-Pay website is subject to the license you agreed to with the third party that provides you with this software. I-Pay does not own, control nor have any responsibility or liability for any third party software application you elect to use on the I-Pay website and/or in connection with I-Pay Services. If you are using I-Pay Services on the I-Pay website, or other website or platform hosted by I-Pay, or a third party, and are not downloading I-Pay’s software or using third party software applications on the I-Pay website, then this section does not apply to your use of the hosted I-Pay Services.
When providing I-Pay with content or posting content using I-Pay Services, you grant us a nonexclusive, worldwide, royalty-free, transferable, and sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademarks, database rights and intellectual property rights you have in the content, in any media known now or in the future during the term of the Agreement. Further, to the fullest extent permitted by applicable law, you waive your moral rights and promise not to assert such rights against I-Pay, its sublicensees or its assignees. You represent and warrant that none of the following infringe any intellectual property or publicity right: your provision of content to I-Pay, your posting of content using I-Pay Services, and I-Pay’s use of such content (including of works derived from it) in connection with I-Pay Services.
15. Special Considerations
I-Pay may provide special rates or discounts in exchange for various Merchant considerations. Any reduced pricing or considerations will be expressly called out in a separate addendum to these terms (“Addendum”). If the Addendum expressly calls out a special consideration, the respective provisions shall apply.
If, and to the extent, offered in the respective Addendum, in consideration for Merchant’s participation in agreed upon promotional activities, I-Pay will provide Merchant with funds during the Initial Term for Merchant to spend on mutually agreed upon marketing of the Program to drive traffic to both Merchant and I-Pay. The Program Funds shall be (i) as expressly set forth in the Addendum; and (ii) spent on approved marketing activities. Merchant shall invoice I-Pay for amounts incurred accompanied by a proper accounting of the use of the Program Funds.
If, and to the extent, offered in the respective Addendum, in consideration for discounted pricing, during the Initial Term and each Renewal Term, the Parties agree that I-Pay shall be the exclusive provider to Merchant for all of Merchant’s pay-over-time financing, buy now, pay later solutions, and similar alternative credit offerings provided to Merchant’s customers based in the United States of America and Canada. Additionally, Merchant shall not engage any direct competitor of I-Pay for services of a nature the same or similar to those provided by I-Pay within the United States of America and Canada. Any exclusions, carve outs, or exceptions to this provision must be expressly called out in the Addendum.
Should Merchant violate or breach any provision which was provided as consideration for discounted pricing or Program Funds, in addition to any other rights available in law or equity, I-Pay reserves the right to a) invoice and auto-debit Merchant for the difference between the agreed-upon discounted processing rate actually paid and I-Pay’s then-current standard processing rate from the Effective Date forward (standard rates will then apply throughout the remainder of the Term); and/or b) require reimbursement from Merchant for any marketing or Program Funds paid.
16. General Provisions.
You may not transfer or assign any rights or obligations you have under this Agreement without I-Pay’s prior written consent. I-Pay reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
This Agreement, along with any applicable policies and agreements on the Legal Agreements page on the I-Pay website, sets forth the entire understanding between you and I-Pay with respect to I-Pay Services. Sections which by their nature should survive will survive the termination of this Agreement. Unless stated otherwise in this Agreement, if any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck, and the remaining provisions shall be enforced.
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