Last Updated: October 9, 2022
Thank you for joining PopID’s payment platform, PopPay (“PopPay Platform” or simply “PopPay”) and providing our users with another great place where then can buy goods and services with just their smile! The purchase of goods and services by your customers using PopPay (“Customers”) will be made using their PopPay account after the authentication of their identity by PopID (“Authenticated,” “Authenticating,” or “Authentication”), through the PopPay Platform.
It is important to us that when use join or use PopPay as a merchant you are fully aware of your respective legal rights and obligations. For that reason, we have created the terms and conditions contained in this PopPay Merchant Agreement (“Merchant Agreement” or “Agreement”), as the legally binding contract between you HDFC Bank (including your agents and representatives) (“Merchant,” “you,” and “your”) and PopID, Inc. (“us,” “we,” or “PopID”), which governs your merchant account with PopID (“Merchant Account”), and your use of PopPay to sell goods and services to Customers.
**PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY BEFORE USING JOINING OR USING POPPAY, BECAUSE THESE TERMS AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS.
The PopPay Platform is part of the “Site,” as that term is defined in the PopPay user Agreement, which applies to you when you use the Site as a consumer or non-merchant or when not covered by this Merchant Agreement. If you use the Site to process physical card present transactions, you also agree to the terms of the PopPay POS Merchant Agreement which can be found at popid.com/legal.
◆ NOTICE REGARDING FUTURE CHANGES TO TERMS:
We may make changes to the Merchant Agreement at any time as stated in this notice and in Section 42 below. Any changes we make will be effective immediately when we post a revised version of the Merchant Agreement to the Site. The "Last Updated” date above will tell you when the Merchant Agreement was last changed. Each time you use your Merchant Account or PopPay, you irrevocably agree to the terms and conditions of the Merchant Agreement then posted to our Site. To the extent that the terms and conditions of the updated Merchant Agreement differ from a prior version of the Merchant Agreement which you previously agreed to, this version of Merchant Agreement supersedes and governs your use of the Site from the date of posting forward.
YOU AGREE THAT WE MAY PROVIDE NOTICES, DISCLOSURES AND AMENDMENTS (“NOTICES”) TO THIS MERCHANT AGREEMENT, AND OTHER INFORMATION RELATING TO YOUR MERCHANT ACCOUNT, BY ELECTRONIC MEANS, INCLUDING, WITHOUT LIMITATION, POSTING SUCH NOTICES IN YOUR MERCHANT ACCOUNT OR ONLINE AT WWW.POPID.COM. YOUR CONTINUING CONTINUED USE OF YOUR MERCHANT ACCOUNT, ANY POPID HARDWARE, AND/OR THE POPPAY PLATFORM CONSTITUTES YOUR REAFFIRMATION OF THE TERMS OF YOUR MERCHANT AGREEMENT WITH POPID BASED ON THE TERMS AND CONDITIONS CONTAINED IN THE VERSION OF THE MERCHANT AGREEMENT AVAILABLE ON WWW.POPID.COM OR IN YOUR MERCHANT ACCOUNT.
◆ NOTICE REGARDING ARBITRATION AND CLASS, REPRESENTATIVE, AND CONSOLIDATED ACTION WAIVER
The Terms contain an arbitration agreement and class, representative, consolidated action waiver in Section 37 below. Specifically, you and we agree that any dispute or claim relating in any way to the Terms, your use of the Site, your Account (if applicable) or products or services sold, distributed, issued, or serviced by us or through us, will be resolved by binding, individual arbitration, rather than in court. By agreeing to individual arbitration, you and we each waive any right to participate in a class, representative, private attorney general, or consolidated lawsuit or arbitration. This agreement and waiver—along with some limited exceptions—is explained in Section 21, below.
◆ COVID-19 WARNING:
An inherent risk of exposure to COVID-19 exists in any place where people gather. COVID-19 is an extremely contagious disease that can lead to severe illness and death. You assume all risks, hazards, and dangers arising from or relating in any way to the risk of contracting a communicable disease or illness—including, without limitation, exposure to COVID-19 or any other bacteria, virus, or other pathogens capable of causing a communicable disease or illness, whether that exposure occurs before, during, or after your use of the Service, and regardless of how caused or contracted—and you hereby waive any and all claims and potential claims against PopID—and against any individual or companies affiliated with PopID—relating to such risks, hazards, and dangers.
You Agree to the Terms of this Merchant Agreement. Each time you access or use your Merchant Account, or PopPay, including by registering for a Merchant Account, or using selling goods or services using PopPay, you agree to be bound by this Merchant Agreement (as updated from time to time) and any additional terms that apply to you. If you do not agree with any of these terms and conditions in this Merchant Agreement, including the Privacy Policy incorporated herein, please do not use register for or use a Merchant Account or PopPay.
Term. This Merchant Agreement is effective from the date You register for a Merchant
Account and continues in full force and effect until the date this Agreement is terminated or expires as provided in this Merchant Agreement (“Term”).
PopPay Merchant Account. To become a merchant of PopID, who accepts payments on the PopPay Platform (“Merchant”) You must register for a Merchant Account through the PopID online Portal (“Portal”) by providing us with your personal and business information and linking your bank account at an approved financial institution.
Use of Your Merchant Account. Upon successfully registering for a Merchant Account, you will be able to process Transactions for Customers, through an electronic device compatible with the PopPay Platform. The processing of such Transactions will be governed by the terms and conditions in this Merchant Agreement.
Merchant Information. You will be required to provide information of a personal nature (“Merchant Information”) to PopID as part of the registration and use of your Merchant Account and the processing of Transactions and you warrant to us that you will; (a) provide to us complete and accurate Merchant Information; (b) advise us as soon as your Merchant Information changes or becomes inaccurate; (c) maintain the confidentiality and security of your Merchant Account, at all times; (d) agree to the terms and conditions of this Merchant Agreement prior to registering for a Merchant Account; (e) only register or maintain one (1) Merchant Account at any one time, and (f) your Merchant Account must be held in your legal name or the legal name or dba of your Company at any one time.
Location of Business. You can use your Merchant Account to process Transactions at each location in which you operate your business provided you have added each location to your Merchant Account and you and the Customer have access to an electronic device compatible with the PopPay Platform.
Linking of Bank Account. When registering for your Merchant Account, you will be required to provide us with your bank account information (“Bank Account”) and you authorize us to transfers funds to your Bank Account strictly in accordance with the terms of this Agreement. You agree to sign such documentation and do all things reasonably required by us in order to give effect to the terms of this Agreement. You expressly authorize our service provider, Dwolla, Inc. (“Dwolla”) or another provider we contract with, to originate credit transfers to your Bank Account. You authorize us to collect and share with Dwolla your personal information including full name, email address and financial information, and you are responsible for the accuracy and completeness of that data. Dwolla’s Privacy Policy is available here: https://www.dwolla.com/legal/privacy. You agree to the Dwolla terms of service (which may be amended from time to time) available here: https://www.dwolla.com/legal/dwolla-account-terms-of-service . You also authorize Dwolla or another provider we contract with to initiate debit transfers from your Bank Account if you owe us money for any reason, including for chargebacks or ACH reversals.
Processing Transactions. Each Transaction will be processed once your Customer’s identity has been Authenticated through the PopPay Platform. Once a Transaction has been Authenticated, your Customer will receive a text message to their registered phone with confirmation of the Transaction.
Payment Equipment. Merchant will install any materials and equipment reasonably required by PopID for Merchant to receive and process payments (including, without limitation, QR codes, a tablet, ordering kiosk, fax machine, or other automated, electronic means of receiving payment) (“Payment Equipment”). If any Payment Equipment is provided by PopID, Merchant will pay PopID a Payment Equipment Fee, as set forth in the paragraph below entitled “Payment Equipment Fee,” in exchange for the right to use the Payment Equipment to accept payments from Customers for Transactions processed on the PopPay Platform. Payment Equipment provided by PopID will remain PopID’s sole property and may be used solely for purposes related to fulfilling Merchant’s responsibilities under this Agreement pursuant to a non-transferable, limited license for the duration of the Term (“Payment Equipment License”). Merchant agrees to inspect all hardware upon delivery and then daily for the duration of the Term. Merchant agrees to notify PopID in writing if any Payment Equipment is lost, missing, or damaged, as soon as practicable after discovering such damage or loss. PopID may restrict or rescind Merchant’s right to use the PopPay Platform at any time, for any reason. Merchant will be responsible for any damage to, or loss of, any Payment Equipment provided by PopID (excluding ordinary wear and tear), which will be promptly paid by Merchant. The cost will be the replacement cost without any deduction for depreciation. PopID may recover the replacement cost of damaged or lost Payment Equipment by charging Merchant’s Bank Account or invoicing Merchant, at PopID’s sole discretion. Merchant agrees to pay all subscription fees and deposits reasonably charged by PopID for Payment Equipment. Merchant agrees to return Payment Equipment to PopID within 15 calendar days after the termination of this Agreement to the address specified for Notices to us, or as otherwise directed. In the event Merchant fails to return the Payment Equipment, as specified, within 15 calendar days after termination of this Agreement to the address specified for Notices to us, or as otherwise directed by us, Merchant agrees that it will pay the cost to replace the Payment Equipment at the then current market rate for new and reasonably equivalent equipment without deduction for depreciation.
Payment Equipment Fee. You agree to pay us a monthly fee of $0.00 for each item of Payment Equipment we provide to you.
Restrictions on Transactions. You warrant to us that you will: (a) only process Transactions which are legal; (b) only process Transactions by Customers who are lawfully and voluntarily Authenticating their identity and who are not otherwise acting under any coercion or duress; (c) not process any Transactions or Refunds that require you to pay or exchange cash with your Customers; and (d) include all applicable taxes in the total amount of the Transaction.
Declined Transactions. A Transaction may be declined (“Declined Transaction”) by us due to: (a) your Customer having an inactive or invalid PopPay account; (b) your Customer having an expired or cancelled credit card or bank account linked to their PopPay account;(c) the inability by us to Authenticate your Customer’s identity; (d) any other reason. If you have a Declined Transaction, you will be notified through the Merchant Account and you should neither complete the Transaction nor provide delivery of the goods or services to the Customer. You may contact us at [email protected] regarding any questions relating to a Declined Transaction.
Fees & Charges. For each Transaction processed for your Customers through the PopPay Platform, we will charge you: (a) a fixed fee of $0.11 for each Transaction (“Fixed Fee”); and (b) a fee equal to 1.5% of the Value of each Transaction (“Variable Fee”). For this Agreement, the “Value” of a Transaction is the total amount paid for the goods or services purchased by the Customer plus applicable sales’ taxes and tips, without deduction.
Payments. The Value of any Transaction processed for a Customer through the PopPay Platform, less the Fixed Fee and Variable Fee for the respective Transaction, will be credited to your nominated bank account within five (5) Business Days of the Transaction being Authenticated without being canceled, terminated, returned, or charged back. For this Agreement, a “Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of California or is a nationally recognized federal holiday pursuant to Federal law. The payment of these amounts to you remain subject to the provisions of this Agreement regarding Merchant Disputes and Customer Disputes at all times, including after money has been transferred to your nominated bank account.
Acceptance of Different Customer Payment Methods. PopPay users can attach different payment methods to their PopPay Account to use as Merchants, including with you. These payment methods include credit card, debit card and bank accounts issued by, or held at financial institutions acceptable to us, PopPay credits, as well as other payment methods we approve, in our sole discretion, in the future. By using the PopPay Platform as a Merchant, you understand and agree to accept the different risks and obligations associated with each of these payment methods. For example, you understand and agree to accept the risk that a transaction paid for by a PopPay user with a credit card payment method can be “charged back” up to 180 days after the transaction, or as otherwise provided by the rules of the card network. You are required to participate in good faith and assist us in resolving the dispute with the Customer, and/or the dispute resolution process of the card issuer, and to refund the amount of the purchase as we direct based on our determination, in our sole discretion, or by the Customer’s issuing bank, pursuant to their rules and directions. You also understand that for PopPay transactions where a user has linked their bank account as the payment method may be made through the Automated Clearing House (“ACH”), or another network or service. ACH transactions, for example, may be “returned” up to sixty days, or in some cases more, after the money has been deposited into your bank account. You understand that when an ACH return is submitted by the purchaser there is no opportunity to contest the return. You agree that for all ACH returns—other than returns that we determine were unauthorized by the cardholder, you will immediately refund to us the money from the transaction unless we advise you otherwise in writing as to a particular transaction. You agree that we may initiate an ACH debit from your account for any such ACH transaction returned, or to otherwise debit your bank account or other payment method. You agree to participate in good faith, and promptly assist us as requested, in resolving any disputes with a PopPay user or their financial institution regarding any ACH disputes.
No Surcharges. With the exception of applicable sales’ taxes and tips offered by your Customer, you are not permitted to add any fees, charges, or other amounts over or in addition to the advertised price of the goods or services that are the subject of the Transaction.
Delivery of Goods and Services. Upon the Authentication of a Transaction, you must provide, or initiate the delivery of, the goods or services, which are the subject of the Transaction, to the Customer.
Currency. Transactions, Refunds, Fixed Fees and Variable Fees (each, a “Line Item”) will be processed in the currency of the United States of America being United States Dollars (“USD”).
Reporting. Details of each Line Item processed each day at each location of your Business will be outlined in detail in your Merchant Account. Each Line Item will be allocated a unique Transaction ID. The data for each Line Item will remain in your Merchant Account for a period of one (1) year from the date of the Line Item following which, it may be deleted by us without further notice. It is your obligation to download data from your Merchant Account prior to the data being deleted by us.
Merchant Disputes. Merchant Disputes. You can dispute a Line Item (“Merchant Dispute”) by sending an email to [email protected] within 60 days after the Line Item at issue first appears in your Merchant Account, along with all relevant facts and documents in support of your dispute. We will investigate all Merchant Disputes in a prompt manner and our decision on the Dispute will be final. We will notify you of our decision as soon as practicable, which we will attempt to do within seven (7) Business Days of the date the Dispute is submitted to us. In some circumstances, our decision will result in Merchant incurring a cost. We may recover or collect any costs incurred or owed by Merchant as a result of our decision in resolving any Merchant Disputes in the most convenient manner for us, including, without limitation, deducting the amount owed to us from the amount owed to Merchant, or by withdrawing the amount owed from the Merchant’s Bank Account.
Customer Disputes. Merchant is responsible for all fees incurred by PopID due to Customer complaints or disputes regarding a transaction at Merchant (“Customer Dispute”). Depending on the Customer’s payment type different laws and rules are applicable to the dispute.
Disputes for cards: There are federal laws that allow a card user to dispute any transaction with the issuing bank within specified time periods and pursuant to that financial institution’s procedure. we can request, but we cannot require, Customers to resolve Disputes with you or through us, and not to dispute a charge directly with their issuing bank.
Disputes for bank accounts: we will investigate all Customer Disputes in a prompt manner and our decision on the Dispute will be final. We will notify you of our decision as soon as practicable, which we will attempt to do within seven (7) Business Days of the date the Dispute is submitted to us.
For all Disputes regarding PopPay transactions:
PopID’s Dispute Resolution Process: You agree to cooperate and participate in PopID’s dispute resolution process and agree to accept our decision as final. If the Customer disputes a transaction with you with their card issuing bank, without having participated in or completed, PopID’s dispute process, or after we made a decision on the Dispute, you agree to cooperate with us and participate in the issuing bank’s dispute resolution process, including promptly providing all information and documents requested by the issuing bank or PopID.
Protection from Fraudulent Purchases on PopPay. For any transaction where we determine a Customer used a Card or Bank Account that was not theirs or otherwise obtained fraudulently and the transaction is charged back by the card issuing bank or returned by the Customer’s bank through ACH, you will be paid the transaction amount and will not have to refund the money to us, so long as you have complied with the requirements of our dispute resolution process and participated in good faith in our dispute resolution process, as well as the card network/issuing bank dispute process for Cards and any dispute process required for participating in the ACH network or similar service for Bank Accounts. If we determine that you knew the Customer was engaging in this fraudulent conduct, or you participated or assist them, then you do not have the benefit of this protection and you will be liable to us for the amount.
Responsibility for Other Chargebacks and Returns. In some circumstances, our decision will result in Merchant incurring a cost or being required to refund money to a Customer. For all other transactions that are charged back or returned that are not covered by subsection (ii) above, you are responsible and liable to us for the amounts charged back or returned. We may recover or collect any costs incurred or owed by Merchant as a result of our decision in resolving any Disputes in the most convenient manner for us, including, without limitation, deducting the amount owed to us from the amount owed to Merchant, or by withdrawing the amount owed from the Merchant’s Bank Account. Similarly, if you fail to refund money to a Customer as determined by us in resolution of a Dispute, we may collect the amount from you in the most convenient way for us, including, without limitation, deducting the amount owed to the Customer from the amount owed to Merchant, or by withdrawing the amount owed from the Merchant’s Bank Account. You hereby specifically authorize us to initiate a separate debit transaction from Merchant’s Bank Account to recover these amounts. Such transaction is subject to an additional Fixed Fee and Variable Fee as specified above in the paragraph titled “Fees & Charges,” as well as a Dispute Transaction Fee of $25.
Refunds.
Request for refund made to you. In the event of a Refund request from a Customer to you, you can process the refund at their sole discretion via the Merchant Portal (“Refund”). Refunds are subject to an additional Fixed Fee and Variable Fee as specified above in the paragraph titled “Fees & Charges.” If you do not come to a mutually agreeable resolution with the Customer, the Customer may seek a refund from us, or from the financial institution that issues, sponsors, or holds, their payment method, in which case the Customer Dispute provisions (above) apply.
Request for refund made to PopID. In the event a Customer requests a refund from PopID for goods or services purchased from Merchant through the PopPay Platform, and Customer advises that it has not previously requested a refund from you, then PopID will facilitate a conversation between the Customer and you. If you agree to provide a Refund to the Customer such refund is subject to an additional Fixed Fee and Variable Fee as specified above in the paragraph titled “Fees & Charges.” If you do not come to a mutually agreeable resolution with the Customer, the Customer may seek a refund from us, or from the financial institution that issues, sponsors, or holds, their payment method, in which case the Customer Dispute provisions (above) apply.
Warranties. You hereby warrant to us, for the duration of the Term, that: (a) you are financially responsible; (b) you have the authority to enter into and be bound by the terms and conditions contained in this Agreement; (c) you will not engage in any activity which could cause harm to the PopID system, the PopPay Platform, or the PopID or PopPay brands; (d) the proprietary marks (including, without limitation, trademarks, logos, trade names, service marks, trade dress, and other identifying symbols and words) used to advertise your goods or services are not infringing upon any third (3rd) party’s rights; (e) your Business is a legal enterprise and you are not undertaking activities illegal under applicable Federal, State, or local law including, without limitation, activities of a fraudulent, misleading or deceptive nature.
Laws & Regulations. You warrant to us that you will comply with all applicable laws, regulations and other legal requirements pertaining to the sale of goods and services and the Authentication of Transactions including, without limitation, laws and regulations regarding banking, financial institutions, payment systems, foreign currency exchange, money transmission, anti-money laundering, anti-terrorist financing, sanctions (such as those administered by the US Department of the Treasury’s Office of Foreign Assets Control), privacy and security, consumer protection and trademarks and copyrights. In the event of any conflict between a term contained in this Agreement, our Privacy Policy, or any applicable laws and regulations, the term contained in the applicable law or regulation will govern and prevail.
Intellectual Property. For the duration of the Term, we each grant to the other a fully paid, non-exclusive, non-transferable, royalty-free, limited license (“Proprietary License”) to use each other’s proprietary marks (including, without limitation, trademarks, logos, trade names, service marks, trade dress, and other identifying symbols and words) (“Proprietary Marks”) for the strict purposes of performing our obligations under this Merchant Agreement. We reserve the right to substitute different Proprietary Marks for use in identifying PopID. Further, each of us warrants to the other that they will: (a) not use the other Party’s Proprietary Marks to incur any obligation or indebtedness on behalf of that Party; (b) not use the other Party’s Proprietary Marks as part of their corporate or other legal name; (c) not contest, either directly or indirectly, the validity or ownership of the other Party’s Proprietary Marks nor shall they, directly; (d) not directly or indirectly, seek to or assist any person in the use of or registering of the other Party’s Proprietary Marks in any jurisdiction; and (e) promptly notify the other Party of any suspected infringement of the Proprietary Marks, any challenge to the validity thereof or any challenge to the other Party’s ownership of or right to use the Proprietary Marks.
Ownership of Intellectual Property. Each Party acknowledges and understands that: (a) use of the other Party’s Proprietary Marks in no way gives rise to any ownership interest or other interest in or to the Proprietary Marks; (b) the other Party is the exclusive owner of all right, title and interest in and to that Party’s Proprietary Marks; (c) the license to use the other Party’s Proprietary Marks is revocable, non-transferrable and non-exclusive and is granted subject to the terms and conditions outlined herein; (d) any and all goodwill arising from its use of the other Party’s Proprietary Marks shall inure solely and exclusively to the other Party’s benefit and upon expiration or termination of this Agreement and the license granted herein, no monetary amount shall be assigned or attributable to any goodwill associated with its use of the other Party’s Proprietary Marks.
Marketing and Advertising. You are a merchant of PopID (“Relationship”) and in addition to the rights created in paragraph 25, the Proprietary License allows each Party to use the other Party’s Proprietary Marks to advertise and market the Relationship provided that such marketing and advertising is not likely to, and does not, directly or indirectly, confuse, mislead, or deceive the public including, without limitation, confusing, misleading or deceiving the public into thinking that you are associated with us in any manner other than the Relationship.
Confidentiality. You acknowledge that we may be required to disclose Confidential Information to you in order to give effect to the terms of this Agreement and you warrant to us that, for the duration of the Term and for the maximum period permitted by law thereafter, and no less than a period of five (5) years, you will hold the Confidential Information in the strictest confidence and you will not communicate, disclose, transfer, divulge or otherwise use or deal with (“Disclosure”) the Confidential Information, in any manner whatsoever and whether for the benefit of yourself or any other person, partnerships, associations, corporations or other incorporated entities, except where such Disclosure; (a) is required by law; (b) is to your employee, officer, contractor or advisor (“Associated Parties”) and you first obtain a covenant, in our favor on the terms outlined in this paragraph, prior to making the Disclosure; or (c) relates to Confidential Information which is already in the public domain by reason other than your or your Associated Parties’ Disclosure. For the purposes of this paragraph, “Confidential Information” means any proprietary information of PopID including, without limitation, technical data, software, hardware, trade-secrets, know-how, research, business plans, manuals, information decks, inventions, processes, designs, and engineering configuration, disclosed by us to you either directly or indirectly, in writing, orally or by drawings or observations or otherwise observed by you in your dealings with us.
Your Privacy. The information you provide to us when registering for and using your Merchant Account will be stored, managed, used, and shared in accordance with the terms of our Privacy Policy which can be located at www.popid.com/privacy.
Your Customers’ Privacy. You acknowledge that both we and your Customer will be required to provide to you information of the Customer of a personal nature (“Personal Information” which includes, but is not limited to, name, contact information, food ordering data, items purchased and prices and loyalty data) and a non-personal nature (“Non-Personal Information” which by nature, is aggregate and anonymous information). You warrant to us that you will: (a) use the Non-Personal Information and Personal Information for the strict and limited purposes of Authenticating and processing Transactions and Refunds or as otherwise agreed to by us and your Customer; (b) use all reasonable efforts to protect and safeguard the confidentiality of the Personal Information which at a minimum, shall be the same degree of protection afforded by our Privacy Policy; (c) not share, transfer or otherwise distribute or disseminate the Personal Information to any third (3rd) party without the prior written consent of both us and your Customer. Further, You grant to us a non-exclusive, worldwide, royalty-free, transferable, sublicensable, perpetual, irrevocably license to: (a) copy, display, transfer, share with third (3rd) parties and otherwise use or deal with the Non-Personal Information; (b) copy, display, transfer, share with third parties and otherwise use or deal with the Personal Information in accordance with the terms of our Privacy Policy or as otherwise agreed to between us and your Customer. You agree to transfer the Non-Personal Information and Personal Information to us, upon our request.
Non-Compete. For the duration of the Term, you warrant to us that PopID will be the sole and exclusive facial payment provider or processor of Transactions for you and your business. In addition, for the duration of the Term, you warrant to us that you will not use, offer, display, promote, or otherwise deal with any other facial payment provider or processor without our prior written consent. Such consent may be withheld in our sole and absolute discretion.
Non-Disparagement. For the duration of the Term and for a period of two (2) years thereafter, you warrant to us that neither you nor any of your representatives, agents, or affiliates will, either directly or indirectly, make any statement, comment or communication, whether oral or written, that is disparaging, derogatory or defamatory towards us or any PopID product, including without limitation, PopPay.
Audits. You must, upon reasonable notice from us, provide us or our agents with full access to the books and records of your Business for the purpose of auditing the Transactions (“Audit”) processed through your Merchant Account. Furthermore, you agree to provide such documentation and do all things reasonably requested by us or our agents in relation to the Audit.
Termination. This Agreement will terminate when: (a) you terminate your Merchant Account through the Portal; (b) we terminate your Merchant Account, for any reason or no reason; or (c) we terminate this Agreement, for any reason or no reason. Upon the termination of this Agreement, all rights, privileges, and licenses granted to you in this Agreement will immediately terminate, without notice or liability. Any and all amounts owing to you pursuant to this Agreement, as at the date of termination, will be credited to your bank account within the time frames provided in this Agreement. You will remain liable to us for all amounts you owe us.
Disclaimers and Limits of Liability. Except as outlined in this Agreement and to the maximum extent permitted by Law, PopID and our officers, directors, agents and affiliates (collectively, the “Indemnified Parties”) make no representations or warranties, of any kind, whether express or implied, with respect to your Merchant Account or any matter contemplated by this Agreement including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, title or non-infringement, or any warranty or representation arising by usage of trade, course of dealing or course of performance. Furthermore, in no event shall PopID or any of the Indemnified Parties have any liability for: (a) Declined Transactions; (b) unauthorized access to or alteration of, your Merchant Account; (c) fraudulent Transactions; (d) errors or mistakes in a Transaction or Refund; (e) any other mistake or activity resulting from circumstances beyond our reasonable control. In the event that PopID or the Indemnified Parties are found liable to you, you shall only be entitled to recover actual and direct damages and in any event, such damages shall not exceed the amount You have paid to us is Fixed Fees and Variable Fees in the 12 months prior to the making of the Claim. To the maximum extent permitted by law, in no event shall PopID or its Indemnified Parties have any liability for any incidental, indirect or consequential damages including, without limitation, loss of profit or revenue or use, or any punitive or exemplary damages arising out of or in relation to this Agreement or your Merchant Account, whether in contract, warranty, tort, product liability, strict liability or other theory.
Governing Law. Except with respect to the arbitration provision below, this Agreement shall be governed in accordance with the laws of the State of California without reference to conflict of law principles.
ARBITRATION. PLEASE READ THIS PARAGRAPH CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION PERTAINING TO YOUR RIGHTS. IT PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH ARBITRATION INSTEAD OF COURT TRIALS AND CLASS ACTIONS. This paragraph shall be interpreted broadly and any and all disputes, suits, claims and similar actions (except those which fall within the jurisdiction of a small claims court) (“Claim(s)”), of whatsoever nature (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory), between you and we, or otherwise arising out of or in relation to this Agreement or your Merchant Agreement, shall be resolved by binding arbitration. You and we agree that this Agreement evidences a transaction in interstate commerce. You and we agree that this arbitration provision is governed by, and will be interpreted and enforced in accordance with, the substantive provisions of the U.S. Federal Arbitration Act (“FAA”). You and we further agree that agree that this arbitration provision is governed by, and will be interpreted and enforced in accordance with, the procedural provisions of the Sections 2 and 3 of the FAA (9 U.S.C. §§ 2 & 3), and by the procedural provisions of sections 1280 through 1294.4 of the California Code of Civil Procedure (with the exception of subsection (c) of CCP § 1281.2, the final two paragraphs of section 1281.2, CCP § 1281.3, and CCP § 1284.3, which are specifically excluded and shall not apply or have any effect on any arbitration pursuant to this Agreement), which are not in conflict or inconsistent with Section 2 or 3 of the FAA.
Process. For each Claim, the Parties must first send written notice to the other Party as provided in paragraph 42 of this Agreement and allow the other Party sixty (60) days to attempt to resolve the Claim.
Arbitration of All Disputes. If the Parties are unable to resolve a Claim within sixty (60) days following notice as provided above, then either Party may initiate arbitration by making a demand for arbitration to AAA. The arbitration will be administered by the American Arbitration Association (“AAA”). Except as otherwise provided by this Agreement, the Expedited Procedures of the Commercial Arbitration Rules of the AAA then in effect (“Rules”), will govern the arbitration. The Rules as well as information about AAA can be found at www.adr.org. JAMS All disputes, including without limitation, threshold or gateway issues, including the arbitrability of the Claim and the proper interpretation of the arbitration provision in this Agreement, shall be decided exclusively by the arbitrator, and not by a Court. If for any reason, AAA is unable or unwilling to administer the arbitration, then it will be administered by JAMS pursuant to the Rules.
Conflict with Rules. If there is any conflict or inconsistency between any term of this Agreement and the Rules, the term of this Agreement will prevail and govern, except where AAA (or JAMS, if applicable), refuses to administer the arbitration, in which case, the Rules will prevail and govern as to that limited issue.
Provisional Relief. Nothing in this arbitration agreement prevents either Party for seeking provisional relief in a Court of competent jurisdiction pursuant to Code of Civil Procedure section 1281.8.
Costs. The filing fee for any arbitration Claim must be paid by the Party initiating the arbitration. Further, each Party agrees to bear their own fees, costs, and expenses associated with the arbitration including, without limitation, those for their attorneys, experts, witnesses, and the preparation and presentation of evidence for the Claim. To the maximum extent permitted by law, Each Party will also be responsible for paying one-half of the costs and fees for the arbitration, including the arbitrator’s fees. If either Party fails to pay their portion of the fees or costs required by AAA (or JAMS if applicable), the arbitrator may preclude the party from asserting claims, submitting evidence, or may enter the Party’s default and enter a default judgment following a prove-up hearing. The Parties agree, however, that a Party that fails to pay their portion of the arbitration fees or costs cannot elect to have the dispute resolved in Court due to the termination or suspension of the arbitration by AAA (or JAMS if applicable). But rather, the other Party, so long as they have paid their portion of the fees and costs, has the right to select an alternative arbitrator pursuant to Code of Civil Procedure section 1281.6, who will proceed with the arbitration pursuant to the terms of this Agreement and this arbitration provision.
Award. The arbitrator must issue a written award within thirty (30) days of the completion of the arbitration. The arbitrator must make a ruling based on the facts and applicable law. The arbitrator’s award shall be final, binding, and conclusive upon You and the Firm with no right to any appeal. The arbitrator shall follow the substantive laws of California and may not invoke any other basis (including, but not limited to, notions of “just cause” or “fairness”) to rule on the Claims.
Judgment. The arbitrator’s award is final and may be entered as a judgment in any court having competent jurisdiction.
Miscellaneous. The arbitration will be conducted in English and will be conducted in Los Angeles, or at another mutually agreeable location. To the maximum extent permitted by law, the arbitration will be deemed confidential and neither you nor we may disclose the existence, content, or results of the arbitration, except as may be required by law or for the purposes of enforcing any judgment.
No Class, Representative, or Consolidated Action. You and we agree that any Claim, will be conducted on an individual basis and not in a class, consolidated, or representative action. You waive all rights to be a class representative, class member, or otherwise participate in a class, consolidated, or representative action or proceeding without first having timely complied with the opt-out procedure provided in paragraph 38, below. If you timely opt-out of the arbitration provision as provided in paragraph 38, below, then this paragraph will not apply to you. The arbitrator shall only have jurisdiction and authority to hear a Claim on an individual basis. The arbitrator shall not have jurisdiction or authority to hear or allow any Claim on class, consolidated, or representative basis. You and we agree that the arbitrator lacks fundamental jurisdiction to hear or decide any class, consolidated, or representative claim or action. You and we agree that the arbitrator lacks fundamental jurisdiction to make any award to any person, entity, or group of people and/or entities, other than you and us.
Arbitration Opt-Out. Notwithstanding the agreement to arbitrate contained in paragraph 37, above, you may choose to pursue any Claim in court, and not by arbitration, if you opt out of the arbitration provision within thirty (30) days of the date you first register for your Merchant Account by sending us written Notice, as specified in the paragraph 42 below, to 6800 Owensmouth Avenue, Suite 350, Canoga Park California 91303 addressed to “PopID, Inc. Attn: Legal Department,” which identifies your Merchant Account and stating that you elect to opt-out of the arbitration provision contained in this Agreement. The Parties agree that this opt-out provision must be strictly complied with and the doctrine of substantial compliance does not apply.
Changes to Merchant Agreement. we reserve the right, in our sole and absolute discretion, to amend, revise, or modify the terms and conditions of this Merchant Agreement from time to time by posting the updated Merchant Agreement on our Site, without further notice. You should visit www.popid.com regularly to review the current Merchant Agreement and any other agreements, terms, rules, or policies that apply to you. Your continued use of your Merchant Account, PopPay, or Site, will be deemed as irrevocable acceptance of the revised Merchant Agreement and any other agreements, terms, rules, or policies that apply to you. Any changes we make will be effective immediately when we post a revised version of the merchant Agreement. The “Last Updated” date above will tell you when the Merchant Agreement was last updated. By continuing to use the Site, your Account, or the Service after that date, you agree to the changes. To the extent that the terms of this Merchant Agreement differ from a prior version of the Merchant Agreement which you previously agreed to, this version of the Merchant Agreement supersedes and governs from the date of posting. If you do not agree to the updated Terms, then you must immediately notify us in writing and immediately cease using your Account and the Service. The updated terms will still apply to you, your Account, and your use of the Service from the date of posting to the date you cease using your Account and the Service.
Survival. Paragraphs 1, 2, 7, 9, 11-26, and 28 through 46, inclusive, shall survive termination or expiration of this Agreement, in addition to any provisions that by their nature should, or by their own express terms do, survive or extend beyond termination or expiration of this Agreement.
Entire Agreement. This Agreement, including the Privacy Policy contain all of the terms in relation to the use of the PopPay Platform as a merchant. If there is a conflict between a term contained in this Agreement and a term contained in our Privacy Policy, the term contained in the Privacy Policy will prevail and govern. Your use of the Site and the PopPay Platform is also governed by the PopPay user Agreement. If you are a merchant who also processes payments of physical cards through PopID services or hardware (such as a kiosk, POS, or universal pay terminal) then the PopPay POS Merchant Agreement also applies to you.
Notices. Any notice required to be given under this Agreement shall be in writing. Notices from you to us must be sent by registered, U.S. mail, with postage prepaid, to 6800 Owensmouth Avenue, Suite 350, Canoga Park, California 91303. Notices from you to us will be deemed given three (3) business days after actual receipt by us. Notices from us to you may be given by electronic means, including, without limitation, posting such notices in your Merchant Account, or sent via email to one of the email address(es) registered to your Merchant Account. You expressly consent to receive notices by electronic means, including notices posted to your Merchant Account, and to the maximum extent permitted by law, you agree that any such electronic notices will satisfy any applicable legal requirements for communications or notices to You.
Assignment. You may not assign this Agreement or any of your rights or obligations under this Agreement, in whole or in part, without PopID’s prior written consent. We may assign this Agreement and any of our rights or obligations created hereunder, in whole or in part, at any time and without notice. Upon assignment, you release us from our obligations under this Agreement and agree to indemnify us for any Claims arising from or in connection with this Agreement or your Merchant Account.
Severance. If any provision, or part of any provision, of this Agreement is determined to be void or unenforceable against any Party by any tribunal with jurisdiction, then that provision, or part of the provision, which is void or unenforceable must be severed from this Agreement to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect.
Further Assurances and Documents. You agree to sign such documentation and do all things reasonably required by us in order to give effect to the terms of this Agreement.
Electronic Counterparts and Execution. The Parties agree that this Agreement may be executed electronically and in counterparts.