This Agreement shall commence on the date accepted by Merchant sign-up (“Effective Date”) and, unless otherwise agreed upon in writing, shall continue for one (1) year from the Effective Date (“Initial Term”). This Agreement shall renew automatically for additional one (1) year periods (each a “Renewal Term”) following the expiration of the Initial Term and any subsequent Renewal Term unless i) either party has provided thirty (30) days’ advance written notice to the other party of its intent not to renew; or ii) as otherwise stated in a writing signed by the parties. The combination of the Initial Term and any Renewal Term shall be the “Term”.
ReachPay is a technology that enables Users to pay for purchases via an Instant Payment, an Interest Free Payment Plan, or any other plan ReachPay may offer to Users. Users can use ReachPay through the web, via a mobile Application or any other interface. To start using ReachPay as a Merchant, Merchant needs to open a ReachPay Account. ReachPay initially serves as a third party service provider to the Merchant in the purchase process, enabling Merchants to offer an Interest Free Payment Plan to their shoppers. For Sales to Residents of Georgia, Indiana, Louisiana, Nevada, New Mexico, and Rhode Island: At the time of purchase, the Merchant owns the Interest Free Payment Plan. Immediately after a purchase through ReachPay, the Merchant automatically assigns the Interest Free Payment Plan to ReachPay. For Sales to Residents of all other states: ReachPay owns the Interest Free Payment Plan created at the time of purchase.
Merchant will create a ReachPay Merchant Account. Merchant attests that Merchant is establishing the Account to enable Merchant’s customers to make purchases utilizing ReachPay. During the term of the Agreement, Merchant agrees to enable ReachPay as a payment method within Merchant’s checkout page, which shall be made available to 100% of Merchant’s customers who utilize Merchant’s site.
Merchant can offer the ReachPay Services to Users by implementing the ReachPay functionality on any of Merchant’s user interfaces. These interfaces include, but are not limited to, Merchant’s website(s), Merchant’s application(s) or Merchant’s point of sale device(s). When Merchant receives settlement for a product or service through ReachPay, ReachPay begins to collect payments from the applicable ReachPay User Account and credits Merchant’s Account for the value of the agreed upon transaction amount minus any ReachPay fees. Payment acceptance through ReachPay and other ReachPay Services constitutes a binding agreement by Merchant, to provide the product or services purchased in the transaction. When Merchant receives payment for purchases with ReachPay, Merchant will see the credit in Merchant’s Account as soon as the transaction is initiated. ReachPay relies on our partners, third party systems, and institutions to facilitate transfers via EFT and other methods. Due to this reliance on other parties, and for our risk management and internal controls, Merchant’s balance is not immediately available for withdrawal. ReachPay reserves the right, in its sole discretion, to refuse payment acceptance or otherwise decline transactions originated through Merchant’s user interfaces attempting to access ReachPay functionality at any time Merchant does not have current, proper and active bank account information on file with ReachPay.
Without limiting the generality of the foregoing, Merchant’s user interfaces on which ReachPay functionality may be implemented include, without limitation, any webpage (“Merchant Agent Webpage”) created by or on behalf of an agent, independent contractor, Affiliate or other representative of Merchant (“Merchant Agents”) where Users can purchase goods or services of Merchant. Merchant shall defend, indemnify, and hold harmless ReachPay (and our parent, our Affiliates, and our and their respective officers, directors, agents, joint ventures, employees and suppliers) from and against any and all claims or demands (including reasonable attorneys’ fees) caused by, resulting from or arising from any act or omission by any Merchant Agent in violation of this Agreement. In the event a Merchant Agent violates this Agreement, (a) Merchant shall be liable to ReachPay for such violation, and (b) ReachPay shall have the right to remove such Merchant Agent from ReachPay’s platform or to require Merchant to remove the ReachPay functionality from such Merchant Agent Webpage or any other act, or require Merchant to take any other act, that terminates such Merchant Agent’s use of ReachPay Services, in ReachPay’s sole discretion and with notice to Merchant, and Merchant shall promptly comply with any such requirement from ReachPay.
In the event Merchant elects to charge subscriptions to Users: (a) Merchant shall not charge monthly fees for such subscriptions; (b) the duration of such subscriptions must be no less than three (3) months; and (c) Merchant shall (i) notify the User regarding the next charge on their ReachPay account, (ii) request User’s consent or opt-in for such charge, and (iii) process such charge, or allow such charge to be processed, upon receipt of such consent or opt-in.
Merchant agrees that Merchant will not impose a surcharge or any other fee for accepting ReachPay as a payment method. Merchant 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 Merchant charges for non-ReachPay transactions.
It is Merchant’s responsibility to determine what, if any, taxes apply to the payments Merchant makes or receives, and it is Merchant’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. ReachPay is not responsible for determining whether taxes apply to Merchant’s transaction, or for collecting, reporting or remitting any taxes arising from any transaction. Merchant acknowledges that ReachPay or any of its partners will report to tax authorities the total amount of payments for goods and services Merchant receives each calendar year into all the Merchant Accounts owned by Merchant if Merchant 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.
If a payment is subject to Payment Review, ReachPay will place a hold on the payment and provide notice to the User and the Merchant. ReachPay will conduct a review and either clear or cancel the payment. If the payment is cleared, ReachPay will provide notice to the User and the Merchant. Otherwise, ReachPay will cancel all payments initiated.
Funds from ReachPay transactions typically settle into Merchant’s external bank account within i) three (3) to seven (7) Business Days after ReachPay receives notification of order capture; ii) as otherwise provided for in this agreement such as with the Merchant Interest Program; or iii) with respective third-party providers, as applicable. Merchant is required to have current, proper and active bank account information on file with ReachPay at all times (i) prior to utilizing the ReachPay functionality on any of Merchant’s user interfaces, (ii) during the Term, and (iii) for thirty (30) Days following cancellation, termination or expiration of this Agreement. The exact settlement time will depend on explicit agreements and approval decisions made by ReachPay. In some cases, due to risk decisions, delayed shipment, made-to-order products, or excessive dispute levels, ReachPay may implement a settlement time longer than this initial range. Merchant will be notified of any proposed settlement changes one (1) Business Day before these changes are implemented. Participants in the Merchant Interest Program agree to different settlement times per the Merchant Interest Program requirements. Orders placed after midnight EST are considered as orders placed on the next business day for settlement purposes. Settlement bank accounts must be located within the United States. ReachPay retains the right to suspend all settlements for Merchant’s benefit at any time Merchant does not have current, proper and active bank account information on file with ReachPay.
In most cases, the Interest Free Payment Plan constitutes four (4) payment installments over the course of six (6) weeks (“Standard Interest Free Payment Plan”). ReachPay reserves the right, but not the obligation, to offer User a plan other than the Standard Interest Free Payment Plan, provided that ReachPay carries the associated credit risk, unless otherwise expressly stated.
ReachPay reserves the right, but not the obligation, to offer Users the Pay In Full Payments through the ACH network or another network of its choosing, provided that ReachPay carries the associated credit risk, unless otherwise expressly stated.
From time to time, ReachPay may provide, at its sole discretion, promotional credit called “ReachPay Spend”. ReachPay Spend is credit provided to Users with an activated ReachPay Account. ReachPay Spend amounts expire as stated in the respective promotion; if no such time is stated, it expires 90 days from date of grant. If ReachPay Spend is awarded specific to a designated merchant, such ReachPay Spend is only available for use with such designated Merchants. ReachPay Spend amounts are non-refundable, non-transferrable, cannot be applied to existing balances, and cannot be redeemed for cash. If Merchant’s account is suspended or terminated, any ReachPay Spend credits in Merchant Account or subject to be awarded under the Agreement are non-refundable, deemed forfeited and have no cash value. ReachPay reserves the right to i) transfer ReachPay Spend between and among Merchants at its discretion; and/or ii) terminate the program at any time.
In the event Merchant’s bank account is closed or otherwise unable to receive funds for at least sixty (60) days (“Unclaimed Funds”), ReachPay will attempt to contact the Merchant about the Unclaimed Funds, in writing, at Merchant’s contact information on file with ReachPay. If Merchant fails to provide commercially reasonable means to receive the Unclaimed Funds within sixty (60) days from the date of the initial request for Merchant’s updated bank account information, then ReachPay reserves the right to segregate and distribute the Unclaimed Funds at its discretion by check to Merchant’s last known address on file with ReachPay, or otherwise in accordance with applicable Delaware Law. It is Merchant’s sole responsibility to ensure that ReachPay has current, proper and active bank account information on file with ReachPay at all times and Merchant acknowledges and agrees that ReachPay shall not be liable for disposition of any Unclaimed Funds made in accordance with applicable law at any time Merchant has failed to maintain such bank account information with ReachPay.
Some fees are expressed as a percentage of the payment amount. All fees are in the currency of the sale unless otherwise stated. Supported sales currencies for North American merchants are U.S. dollars and Canadian dollars. We reserve the right to adjust Merchant’s future fees at our sole discretion upon 30 Days written notice to Merchant. Unless an overriding agreement states otherwise, our fees follow the schedule described in this section.
The Parties agree that ReachPay’s payment processing fee as outlined in Schedule A. 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, ReachPay will notify the Merchant via email.
If Merchant Refunds a payment, ReachPay retains the original payment processing fee but charges no additional fees for the refund. ReachPay will handle all payments to the ReachPay User to complete the refund.
ReachPay reserves the right to charge a $250 fee for processing liens placed against Merchant accounts.
ReachPay 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, ReachPay reserves the right to withhold or reverse payouts to Merchant 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, ReachPay will notify the Merchant to allow them to provide evidence supporting its decisions in such dispute. A Merchant is required to provide a trackable shipment code to both ReachPay 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, ReachPay reserves the right to implement measures to protect the Users including a) extending the Merchant settlement time to up to thirty (30) Days; b) refunding disputed amounts through the Merchant portal after providing two (2) day’s advance notice; c) freezing, holding or closing Merchant’s Account; and/or d) taking actions in accordance with Section 11.4.
ReachPay, at its sole discretion, will determine if a Merchant is experiencing an excessive dispute volume. If a Merchant experiences excessive dispute volumes, ReachPay reserves the right to delay or change a Merchant’s settlement time, even if that settlement time was part of an agreed upon contract with ReachPay.
Merchant acknowledges that any and all goods and services provided to User remains subject at all times to the laws, rules, and regulations applicable to the User and that such laws, rules, and regulations may apply notwithstanding any agreement to the contrary.
Merchant agrees that ReachPay may provide Merchant Communications about Merchant’s Account and the ReachPay Services electronically as described in ReachPay’s Electronic Communications Delivery Policy. Any electronic communications will be considered to be received by Merchant within 1 hour after the time ReachPay posts it to ReachPay’s website or email it to Merchant . Any Communications sent to Merchant by postal mail will be considered to be received by Merchant three (3) Business Days after ReachPay sends it.
Except as otherwise stated above in the Electronic Communications Delivery Policy, and herein, notice to ReachPay must be sent by postal mail to: ReachPay, Inc., Attention: ReachPay Legal Notices, PO Box 3320, Minneapolis, MN 55403.
In order to contact Merchant more efficiently, ReachPay may at times contact Merchant using calls or text messages at the telephone number(s) Merchant has provided us. ReachPay may place such calls or texts to (i) provide notices regarding Merchant’s Account or Account activity, (ii) investigate or prevent fraud, or (iii) collect a debt owed to us. Merchant agrees that ReachPay and ReachPay’s service providers may contact Merchant using autodialed or prerecorded message calls and text messages to carry out the purposes ReachPay have identified above. ReachPay may share Merchant’s phone number(s) with service providers with whom ReachPay contracts to assist ReachPay in pursuing these interests, but will not share Merchant’s phone number(s) with third parties for their own purposes without Merchant’s consent. Standard telephone minute and text charges may apply. ReachPay and ReachPay’s service providers will not use autodialed or prerecorded message calls or texts to contact Merchant for marketing purposes at the telephone number(s) Merchant designate unless ReachPay receives Merchant’s prior express written consent.
Merchant understands and agrees that ReachPay may, without further notice or warning and in ReachPay’s discretion, monitor or record telephone conversations Merchant or anyone acting on Merchant’s behalf has with ReachPay or its agents for quality control and training purposes or for its own protection. Merchant acknowledges and understands that, while Merchant’s communications with ReachPay may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by ReachPay, and ReachPay does not guarantee that recordings of any particular telephone calls will be retained or retrievable.
By signing up with ReachPay, Merchant is agreeing to let ReachPay use Merchant’s company name, brand mark, social and public assets in ReachPay marketing materials and communications during the Term of the Agreement.
Merchant is responsible for maintaining adequate security and control of any and all IDs, passwords, personal identification numbers (PINs), or any other codes that Merchant uses to access the ReachPay 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. ReachPay 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.
Merchant authorizes ReachPay, directly or through third parties, to make any inquiries we consider necessary to validate Merchant’s identity. This may include asking Merchant for further Information, requiring Merchant to provide Merchant’s date of birth, a taxpayer identification number, current bank account information and other Information that will allow us to reasonably identify Merchant, requiring Merchant to take steps to confirm ownership of Merchant’s email address or financial instruments, ordering a credit report, or verifying Merchant’s Information against third party databases or through other sources. We may also ask to see Merchant’s driver’s license or other identifying documents at any time. ReachPay reserves the right to close, suspend, or limit access to Merchant’s Account and/or ReachPay Services in the event we are unable to obtain or verify this Information.
In connection with Merchant’s use of our Website, Merchant’s Account, the ReachPay Services, or in the course of Merchant’s interactions with ReachPay, other Users, or third parties, Merchant will not:
Merchant is responsible for all Reversals, fees, fines, penalties and other liability incurred by ReachPay, a User, or a third party caused by or arising out of Merchant’s breach of this Agreement, and/or Merchant’s use of ReachPay Services. Merchant agrees to reimburse ReachPay, a User, or a third party for any and all such liability.
In the event that Merchant is liable for any amounts owed to ReachPay, Merchant authorizes ReachPay to immediately remove such amounts from Merchant’s Account or Merchant’s bank account on file. If Merchant does not have sufficient funds in Merchant’s Account or Merchant’s bank account, Merchant acknowledges that ReachPay may engage in collection efforts to recover such amounts from Merchant.
If ReachPay, in its sole discretion, believes that Merchant may have engaged in any Restricted Activities, we may take various actions to protect ReachPay, Users, other third parties, or Merchant from Reversals, fees, fines, penalties and any other liability. The actions we may take include but are not limited to the following:
ReachPay, in its sole discretion, may take various actions including a) limitation on Merchant’s Account or the funds in it; b) releasing any or all of Merchant’s funds in the event it receives notice of a court order or other legal process that restricts the use of or access to Merchant’s funds or requires their release; c) seeking injunctive relief for harm caused by Merchant which negatively impacts ReachPay’s risk profile or reputation; and/or d) any other remedy in law or equity. ReachPay 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 ReachPay does not provide Merchant notice, in which case the court order or other process supersedes any notice obligation ReachPay has undertaken or agreed to under the terms of this Agreement. ReachPay has no obligation to contest or appeal from any such order or process. Limitations on Merchant’s account that are placed in response to a court order or other legal process may be maintained longer than 180 Days. ReachPay 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 ReachPay receives notice of a garnishment or equivalent legal process directing the restraint of funds in Merchant’s Account or directing payment of funds from Merchant’s Account to the court or another third party, ReachPay may limit Merchant’s Account and hold the funds in it for up to 180 Days, and may disburse funds from Merchant’s Account, as needed, for the purpose of resolving any dispute, chargeback, or Reversal.
If ReachPay closes Merchant’s Account or terminates Merchant’s use of ReachPay Services for any reason, we will provide Merchant with notice of our actions. Except as expressly provided otherwise in this Agreement, if we limit access to Merchant’s Account, including through a Reserve or hold, we will provide Merchant with notice of our actions; we will also provide Merchant with an opportunity to request restoration of access if, in our sole discretion, we deem it appropriate. Further, Merchant acknowledge that ReachPay’s decision to take certain actions, including limiting access to Merchant’s 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 ReachPay system. Merchant agree that ReachPay is under no obligation to disclose the details of its risk management or security procedures to Merchant.
IN NO EVENT SHALL WE, OUR PARENT AND AFFILIATES, AND THE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS OF ReachPay, 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, APPLICATION, THE ReachPay 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 MERCHANT IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT OF FEES PAID IN THE TWELVE MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ReachPay, OUR PARENT, AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES, AND SUPPLIERS ARE NOT LIABLE, AND MERCHANT AGREES 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) MERCHANT’S USE OF OR MERCHANT’S INABILITY TO USE ReachPay’S WEBSITES, APPLICATIONS, AND SERVICES; (2) DELAYS OR DISRUPTIONS IN ReachPay’S WEBSITES, APPLICATIONS, AND SERVICES; (3) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING ReachPay’S WEBSITES, APPLICATIONS OR SERVICES OR ANY SITE OR SERVICE LINKED TO ReachPay’S WEBSITES, APPLICATIONS OR SERVICES; (4) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN ReachPay’S WEBSITES, APPLICATIONS 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 MERCHANT’S ACCOUNT; (7) MERCHANT’S NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR MERCHANT’S LOSS OF OR INABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THIS MERCHANT AGREEMENT OR ReachPay’S POLICIES. ReachPay RESERVES THE RIGHT TO MODIFY ITS POLICIES AND THIS MERCHANT AGREEMENT AT ANY TIME CONSISTENT WITH THE PROVISIONS OUTLINED HEREIN.
THE ReachPay SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. ReachPay, OUR PARENT AND AFFILIATES, AND THE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES AND SUPPLIERS OF ReachPay, OUR PARENT OR OUR AFFILIATES, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
ReachPay does not have any control over the products or services that are paid for with the ReachPay Services and ReachPay cannot ensure that a buyer or a seller Merchant is dealing with will actually complete the transaction or is authorized to do so. ReachPay does not guarantee continuous, uninterrupted or secure access to any part of the ReachPay Services, and operation of our site may be interfered with by numerous factors outside of our control. ReachPay 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 ReachPay makes no representations or warranties regarding the amount of time needed to complete processing because the ReachPay Services are dependent upon many factors outside of our control, such as delays in the banking system or the U.S. and Canadian or international mail service. Certain ReachPay Services may not be available to Merchant 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 Merchant. This paragraph gives Merchant specific legal rights and Merchant 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, consumer protection, 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 of this agreement.
Either Party may terminate for cause in the event of any one or more of the following events: (a) a Party fails to make a payment of any amount due and payable pursuant to this Agreement and such failure remains unremedied for a period of ten (10) Business Days after the non-defaulting Party gives written notice thereof; (b) such Party fails to perform, satisfy or comply with any material obligation, condition, covenant or other provision contained in this Agreement and such failure remains unremedied for a period of thirty (30) days after the other Party gives written notice thereof specifying the nature of such failure in reasonable detail or immediately where such a cure can not be effectuated in a timely manner or there is continued risk to ReachPay; (c) any representation or warranty by such Party contained in this Agreement fails to be true and correct in any material respect as of the date when made or at any time during the Term; (d) a Bankruptcy, liquidation or insolvency event; and/or (e) there are excessive chargebacks or losses.
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, ReachPay Termination Event, or Merchant Termination Event, as applicable.
If we are conducting an investigation on Merchant’s account, we may hold Merchant’s Balance for up to 180 Days to protect ReachPay, its affiliates, or a third party against the risk of Reversals, fees, fines, penalties and other liability. Merchant will remain liable for all obligations related to your Account even after the Account is closed. Merchant agrees to an extended funds settlement period of 42 Days at account closure to ensure funds are available for returns and refunds.
If a dispute arises between Merchant and ReachPay, our goal is to learn about and address Merchant’s concerns and, if we are unable to do so to Merchant’s satisfaction, to provide Merchant with a neutral and cost-effective means of resolving the dispute quickly. Disputes between Merchant and ReachPay regarding the ReachPay Services may be reported to email@example.com or by calling +1 (844) 720-0729 from 7 AM to 1 AM, Eastern Time.
Merchant agrees 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 Merchant and ReachPay.
Merchant and ReachPay each agree that any and all disputes or claims that have arisen or may arise between Merchant and ReachPay, 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 Merchant may assert claims in small claims court, if Merchant’s 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.
MERCHANT AND ReachPay 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 MERCHANT AND ReachPay 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. ALSO, THE ARBITRATOR(S) MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER ReachPay USERS.
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.
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 ReachPay should be sent to ReachPay, Inc., Attn: Litigation Department, Re: Notice of Dispute, 8 the GRN. Suite A, Dover, DE 19901. ReachPay will send any Notice to Merchant to the physical address we have on file associated with Merchant’s ReachPay Account; it is Merchant’s responsibility to keep Merchant’s 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 Merchant and ReachPay are unable to resolve the claims described in the Notice within 30 Days after the Notice is sent, Merchant or ReachPay 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 Merchant resides or at another mutually agreed location.
If the value of the relief sought is $10,000 or less, Merchant or ReachPay may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on Merchant and ReachPay 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, Merchant and/or ReachPay may attend by telephone, unless the arbitrator(s) require otherwise. Any settlement offer made by Merchant or ReachPay shall not be disclosed to the arbitrator(s).
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 ReachPay Users, but is/are bound by rulings in prior arbitrations involving the same ReachPay 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 Merchant’s request, ReachPay 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) Merchant asserts in the arbitration to be frivolous, Merchant agrees to reimburse ReachPay for all fees associated with the arbitration paid by ReachPay on Merchant’s behalf that Merchant 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, Merchant 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 ReachPay 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 Merchant and ReachPay. We will notify Merchant of amendments to this Agreement to Arbitrate by posting the amended terms on www.ReachPay.com at least 30 days before the effective date of the amendments and by providing notice through email. If Merchant does not agree to these amended terms, Merchant may close Merchant’s account within the 30 day period, and Merchant will not be bound by the amended terms.
If any proceeding by or against Merchant is commenced under any provision of Merchant’s government’s bankruptcy code or under any other bankruptcy or insolvency law, ReachPay 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 Merchant or others does not waive our right to act with respect to subsequent or similar breaches.
Merchant agrees to defend, indemnify and hold ReachPay, our parent, Affiliates and the officers, directors, agents, joint venturers, employees and suppliers of ReachPay, 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 Merchant’s breach of this Agreement (including, without limitation, breach of any representation made or warranty given by Merchant herein), Merchant’s improper use of the ReachPay Services, and/or Merchant’s violation of any law or the rights of a third party. Notwithstanding anything to the contrary contained herein, this Section 13.6 shall survive the termination or expiration of this Agreement.
If Merchant has a dispute with one or more Users, Merchant releases ReachPay (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, Merchant expressly waive any protections that would otherwise limit the coverage of this release to include only those claims which Merchant may know or suspect to exist in Merchant’s favor at the time of agreeing to this release.
“ReachPay.com,” “ReachPay,” and all logos related to the ReachPay Services are either trademarks or registered trademarks of ReachPay or ReachPay’s licensors. ReachPay grants Merchant a revocable, non-transferable, global license to use ReachPay’s trademarks in accordance with ReachPay’s marketing guidelines and in accordance with the terms and Term of this Agreement. Merchant may not copy, imitate or use them without ReachPay’s prior written consent. Also, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of ReachPay. Merchant may not copy, imitate, or use them without our prior written consent. Merchant may use HTML logos provided by ReachPay through our Merchant services or affiliate programs without prior written consent for the purpose of redirecting web traffic to the ReachPay Services. Merchant may not alter, modify or change these HTML logos in any way, use them in a manner that is disparaging to ReachPay or the ReachPay Services or display them in any manner that implies ReachPay’s sponsorship or endorsement. All right, title and interest in and to the ReachPay Website, any content thereon, the ReachPay Services, the technology related to the ReachPay Services, and any and all technology and any content created or derived from any of the preceding is the exclusive property of ReachPay and its licensors.
If Merchant is using ReachPay software such as an API, developer’s toolkit or other software application that Merchant has downloaded to Merchant’s computer, device, or other platform, then ReachPay grants Merchant a revocable, non-exclusive, non-transferable license to use ReachPay’s software in accordance with the documentation. This license grant includes the software and all updates, upgrades, new versions and replacement software for Merchant’s personal use only. Merchant may not rent, lease or otherwise transfer Merchant’s rights in the software to a third party. Merchant must comply with the implementation and use requirements contained in all ReachPay documentation accompanying the ReachPay Services. If Merchant does not comply with ReachPay’s implementation and use requirements Merchant will be liable for all resulting damages suffered by Merchant, ReachPay and third parties. ReachPay may change or discontinue any APIs upon notice to Merchant. Merchant agrees 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. Merchant acknowledges that all rights, title, and interest to ReachPay’s software are owned by ReachPay. Any third party software application Merchant uses on the ReachPay Website is subject to the license Merchant agreed to with the third party that provides Merchant with this software. ReachPay does not own, control nor have any responsibility or liability for any third party software application Merchant elects to use on the ReachPay website and/or in connection with the ReachPay Services. If Merchant is using the ReachPay Services on the ReachPay website, or other website or platform hosted by ReachPay, or a third party, and are not downloading ReachPay’s software or using third party software applications on the ReachPay website, then this section does not apply to Merchant’s use of the hosted ReachPay Services.
When providing ReachPay with content or posting content using ReachPay Services, Merchant grants 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 Merchant has 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, Merchant waives Merchant’s moral rights and promise not to assert such rights against ReachPay, its sublicensees or its assignees. Merchant represents and warrant that none of the following infringe any intellectual property or publicity right: Merchant’s provision of content to ReachPay and products or services to the User, Merchant’s posting of content using ReachPay Services and promotion of Merchant’s products or services to the User, and ReachPay’s use of such content (including of works derived from it), products or services in connection with ReachPay Services.
ReachPay may provide special rates or discounts in exchange for the Merchant considerations listed in a respective Addendum, which would be fully incorporated into this Agreement. Should Merchant violate or breach any provision in the respective Addendum which is provided as consideration for discounted pricing, in addition to any other rights available in law or equity, ReachPay reserves the right to a) invoice and auto-debit Merchant for the difference between the agreed-upon discounted processing rate actually paid and ReachPay’s then-current standard processing rate which would have been charged if the consideration was not offered from the Effective Date forward, and standard rates will then apply throughout the remainder of the Term; and/or b) ReachPay may require reimbursement for any Marketing, Incentive or other amounts paid.
Merchant may not transfer or assign any rights or obligations Merchant has under this Agreement without ReachPay’s prior written consent. ReachPay 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 ReachPay Website, sets forth the entire understanding between Merchant and ReachPay with respect to the ReachPay 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.
Unless stated otherwise in this Agreement, if any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be illegal, invalid or unenforceable, in whole or in part,, such provision or part thereof shall be severed from this agreement,, and the remaining provisions or parts thereof shall continue in full force and effect, without amendment.
16.4.1. “Account” means an account with ReachPay. For Merchants a Merchant Account. For Users a User Account.
16.4.2. “Account Profile” means the location on our website where One can, after logging in, view and manage their profile, including personal information, Payment Method details and Account settings, including notification preferences.
16.4.3. “Active Account” means an account that has been used to purchase products or services using ReachPay Services in the last 12 months.
16.4.4. “Affiliate” or “Affiliated Company” are companies that are direct or indirect subsidiaries of ReachPay, Inc., or are otherwise related to ReachPay through common ownership or control.
16.4.5. “Application” can mean a website, a smartphone, a device, an app, or any other application in which the ReachPay product can be integrated into.
16.4.6. “Authorize” or “Authorization” means a User’s express authorization to ReachPay to debit funds from a connected bank account or payment card on file.
16.4.7. “Business Days” means Monday through Friday, excluding Holidays.
16.4.8. “Communications” means any information that ReachPay provides, including: any agreements and policies agreed to, including updates to these agreements or policies; annual disclosures, including prospectuses and reports; transaction receipts or confirmations; Account statements and history; and federal and state tax statements we are required to make available.
16.4.9. “Confidential Information” means (i) the terms and conditions of the Agreement, and (ii) any other information disclosed by one party to the other party that is designated or declared as confidential or proprietary or, if not so designated or declared, should be reasonably understood by the receiving party as confidential from the context of disclosure or the nature of the information.
16.4.10. “Customer Service” is ReachPay’s customer support which can be accessed online through emailing ReachPay at firstname.lastname@example.org at any time, or by calling +1 (844) 720-0729 from 8 AM to 1 AM Eastern Time.
16.4.11. “Days” means calendar days.
16.4.12. “EFT” means a bank Electronic Funds Transfer. This includes Same-day ACH, ACH or wire transfer payments.
16.4.13. “Holidays” means New Year’s Day (January 1), Birthday of Martin Luther King, Jr. (the third Monday in January), President’s Day (the third Monday in February), Memorial Day (the last Monday in May), Independence Day (July 4), Labor Day (the first Monday in September), Columbus Day (the second Monday in October), Veterans Day (November 11), Thanksgiving Day (the fourth Thursday in November) and Christmas Day (December 25). If a Holiday falls on a Saturday, ReachPay shall observe the Holiday on the prior Friday. If the Holiday falls on a Sunday, ReachPay shall observe the Holiday on the following Monday.
16.4.14. “Initial Term” means one year from the Effective Date, unless otherwise stated in a writing signed by the parties.
16.4.15. “Information” means any confidential and/or personally identifiable information or other information related to an Account, Merchant or User, including but not limited to the following: name, email address, date of birth, tax identification number, billing/shipping address, phone number and financial information.
16.4.16. “Interest Free Payment Plan” means the installment payment plan that a User is following to pay for a product or service offered from a ReachPay Merchant.
16.4.17. “Pay In Full Payments” means the payment via an EFT method that a User is following to pay for a product or service offered from a ReachPay Merchant.
16.4.18. “Merchant Account” means an account created with ReachPay by the Merchant for the purposes of accepting ReachPay as a payment option or using any other ReachPay Services.
16.4.19. “Merchant Interest Program” means a program in which certain approved Merchants may have the opportunity to receive interest earnings on their funds that are held by ReachPay.
16.4.20. “Order” means a transaction with a Merchant for the purchase of goods or services.
16.4.21. “Payment Review” means the process by which ReachPay reviews certain potentially high-risk transactions.
16.4.22. “Payment Schedule” means the dates and times set out for repayment in the installment plan.
16.4.23. “Policy” or “Policies” means any Policy or other agreement between Merchant or user and ReachPay that Merchant or user is entered into on the ReachPay website or in connection with the ReachPay Services.
16.4.24. “Regulated Information” means personally identifiable information, sensitive information or other similar regulated information.
16.4.25. “Renewal Term” means automatically renewing one year periods from the end of the previous term, unless i) one party has provided thirty (60) day’s advance, written notice to the other party of its intent to terminate; or ii) as otherwise stated in a writing signed by the parties.
16.4.26. “Reversal” means ReachPay reverses a payment because (a) it is invalidated by the User’s bank, (b) it was sent to Merchant in error by ReachPay, or its Partners, (c) the User did not have Authorization to send the payment (for example: the User used a bank account that did not belong to the User), or (d) Merchant received the payment for activities that violated this Agreement, the ReachPay Acceptable Use Policy , or any other ReachPay agreement.
16.4.27. “ReachPay,” means ReachPay, Inc. and its subsidiaries and Affiliates related through common ownership or control or an agent acting on their behalf.
16.4.28. “ReachPay Account” means an account that is created by Merchant on the ReachPay website or Application and services through ReachPay partners.
16.4.29. “Store Directory” means the website page present on ReachPay.com where ReachPay advertises participating Merchants to ReachPay Users.
16.4.30. “Total Payments” means all the funds required to pay off an installment purchase, including all account reactivation fees or additional fees.
16.4.31. “User Account” means an account created with ReachPay by the User for the purposes of using ReachPay as a payment option or using any other ReachPay Services.
16.4.32. “Merchant” means a business entity who is using ReachPay Services to process payments for products or services.
16.5. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument. This Agreement may be executed by facsimile signatures, which shall have the same force and effect as original signatures.