Merchant’s Terms and Conditions
Welcome to Splitit. Using Splitit allows you to accept a new form of installment payments that uses your customer’s existing credit card and works through your existing processor. This new payment form provides convenience to your customers, increases your customers’ ability to make purchases at your establishment and helps speed payment to your account.
You must read, agree with, and accept all of the terms and conditions contained in this Merchant Agreement. Your use of the Splitit Services and Splitit Platform constitutes your acceptance of the terms of this Merchant Agreement and forms a legally binding contract. We will not accept any alterations or strike-outs to the Merchant Agreement and, if made, any such alterations or strike-outs shall not apply. You further acknowledge that all Splitit Services referenced in the Merchant Agreement may not be available to you, and your Merchant Application will indicate those Splitit Services you have elected to accept.
We may amend this Merchant Agreement, including the Fee Schedule, at any time by posting a revised version on our website. The revised version, and any revised directions, will be effective as of the time we post it. In addition, if the revised version includes a material change, including a change in the Fee Schedule, we will provide you with 30 days prior notice of such material change by posting notice on the “Policy Updates” page of our website and with respect to any change of the Fee Schedule, also by providing you with a notice (electronically or by other reasonable means). If you would like to receive notification by email of new Policy Updates, you may do so by notifying Splitit in writing, which may be by e-mail. If you do not agree with any material change or with any change to the Fee Schedule then you may terminate your use of the Splitit Services and Splitit Platform pursuant to this Merchant Agreement.
This Merchant Agreement (“Merchant Agreement”), together with the Merchant Application (“Application”), form a contract between the merchant identified in the Application (“you”, “yours”, “your” or “Merchant”) and Splitit USA, Inc. (“we”, ”us”, “our”, or “Splitit”).
1. Description of Services
This Merchant Agreement governs your use of Splitit to provide installment payment processing (“Splitit Installments”) and proprietary software products (the “Splitit Platform”) that works through Merchant’s existing processor described more fully herein and on the Splitit website, as selected by you in the Application (collectively the “Splitit Services”).
1.1 Splitit Installment Processing Via The Splitit Platform
a) Splitit Platform. Merchant will accept installment payments for any sales transaction for goods or services (“Transaction”) processed through Merchant’s existing processor on the Splitit Platform. The Splitit Platform shall secure the balance of each Transaction with a a direct authorization of the outstanding balance of the sale price (“Authorization”) utilizing a consumer’s available credit on a preexisting Visa or MasterCard or ant other applicable card associaton engaged with Splitit (the “Card Networks”). The Splitit Platform will automatically issue a new Authorization, not less than once each month, to the respective Card Network for the remaining balance. Notwithstanding the two situations described in the last sentence of Section 1.2 (b), Merchant will provide the consumer the purchased goods and/or services at the time of purchase in accordance with Merchant’s polices. Consumer will pay Merchant in monthly installments (each payment an “Installment”) on such terms
b) Notice of Shipment or Receipt of Goods. Merchant understands and agrees that Splitit will authorize a Transaction at the time of purchase. Merchant understands and agrees that Splitit will capture the consumer’s first Installment when Splitit receives notification (the “Notice”) from the Merchant that the goods or services purchased by the consumer were taken or received by the consumer upon completion of a physical Transaction, or shipped in the case of an e-commerce Transactions completed online. The Notice in a physical Transaction shall be in the form of Merchant’s standard receipt. However, Merchant understands and agrees that Splitit will only capture the Consumer’s first installment at the time of the purchase before Splitit receives Notice from the Merchant in the following scenarios: (a) if the Consumer has agreed to a delayed delivery transaction or an advance deposit transaction, or (b) in the case of prepayment of services or custom merchandise, only if the Merchant advises the Consumer of the immediate billing at the time of the transaction.
1.2 Exclusivity and Required Use of Splitit Installments and Materials. Splitit will be the sole and exclusive provider of any installment processing services, including the Splitit Services, to Merchant during the term of this Agreement. By agreeing to use the Splitit Services, you must offer Splitit Installments as a payment option to your customers. You shall adequately display service marks supplied by Splitit, and such marks must be displayed with equal prominence to the logos for your other payment options. You shall not discriminate against Splitit Installments, nor discourage its use, as a payment option over any other payment option offered by you. You shall cease to use or display such service marks immediately upon notice from Splitit or upon termination of this Agreement. You promise and guarantee that before using any other solution than Splitit to provide installment processing services and/or securitized installment payments, you will provide Splitit with a 60-day prior written notice. The Parties agree that: money damages would not be a sufficient remedy for any breach or threatened breach of this Provision 1.2 by Merchant, that Splitit shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and the Parties waive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive remedy for breach of this Provision 1.2 but shall be in addition to all other remedies available to Splitit at law or equity. Merchant agrees to indemnify and hold harmless Splitit from any damage, loss, cost or liability relating to or resulting from any breach of this Provision, including all legal fees and disbursements and the costs of enforcing this Merchant Agreement or any action for relief pursuant to this Provision.
1.3 Agreement with Consumer. For each and every Transaction, Merchant shall provide Consumer with, and shall ensure Consumer’s execution of, an Agreement and Recurring Installment Payment Authorization and the accompaning Terms and Conditions (“Consumer Disclosures”) in the exact form as attached in FORM A, without any modification or alteration. The Consumer Disclosures shall obtain the consumer’s consent to the authorization and capture of the full amount of the Transaction, along with the specified number of Installments and the amount of each Installment. The Consumer Disclosures shall also clearly notify the consumer that Splitit may authorize the consumer’s credit card at any time for the outstanding amounts due, until the balance is paid in full. The Consumer Disclosures shall further provide that in case of rejection of any installment and/or authorization, the total outstanding amount will be collected. Splitit may contact the consumer in order to obtain other credit card information.
1.4 Merchant Recordkeeping. Merchant shall retain and preserve for each Transaction for at least 3 years: (a) in the event of a cardholder-present transaction, a manual imprint authorization of the consumer’s card for the full amount of the Transaction; (b) in the event of an online transaction, confirmation of online authorization in a form acceptable to Splitit; and if relevant (c) proof of shipment or receipt by the consumer of any goods or services.
1.5 Anti-Fraud. The Parties understand and agree that fraud detection and fraud prevention measures are the sole responsibility of Merchant.
2.1 Fee Schedule. Merchant agrees to pay to us the Fees as set forth in the fee schedule (“Fee Schedule”) in the exact form as set out in the Merchant Application on or before the date the Fees are due as set forth in the Fee Schedule. Merchant shall also execute as part of the Merchant Application a Credit Card Authorization (“Merchant Authorization”) in the exact form as set out in the Merchant Application to allow Splitit to charge Merchant’s bank account. The Fee Schedule is hereby incorporated by reference into the terms of this Merchant Agreement. We may provide notice of changes directly to you (electronically or by other reasonable means) and/or on our website at merchant-admin.splitit.com. We reserve the right to suspend or cancel service in the event of any Fees remain unpaid for more than three (3) days after the due date.
2.2 Payment Terms
a) You agree that the usual means of payment of any funds from you to Splitit will be from your existing payment-processing provider (“Acquirer”) out of the funds received from the consumer under your irrevocable instruction to Acquirer.
b) You agree to allow Splitit to charge the credit card or bank account that you provided when you registered for this Splitit Platform on the Merchant Authorization for fees that become due under this Merchant Agreement. You authorize us to initiate transaction entries to a depository account identified by you through ACH. This authority shall remain in full force and effect until i) 30 days after we have received written notification from you of your request for termination of this Merchant Agreement, ii) your depository has responded to the request and iii) Splitit has collected all Fees due and owing under this Merchant Agreement. In the event of any change to your depository account, you shall promptly update your account information by providing us with current and accurate information. If you fail to provide current and accurate depository account information, we may immediately discontinue providing the Splitit service to you, without liability, until such information is provided to us, and/or terminate this Merchant Agreement and take other actions to protect our interest. You acknowledge that any change in account information may not be effective until the month following the month in which we receive such notice. If we agree not to require payment by ACH, you shall pay us by wire transfer or by other means we may designate, such payments to be made in accordance with the Fee Schedules or as otherwise applicable pursuant to this Section 3.
c) In the event that Splitit is unable to recover any fee amount that is due from your Splitit Account, Splitit may terminate your use of the Splitit Services within 30 days of the date that the fee was due and exercise any other rights Splitit has under this Merchant Agreement.
2.3 Other Fees and Charges
a) Late Fees. You shall incur a late fee in the amount set forth in the Fee Schedule if any amounts due to us under this Merchant Agreement are not paid in accordance with this Section 2. In addition, you shall be subject to a finance charge equal to one and one-half percent (1.5%) per month, or the highest rate allowable by law, whichever is less, determined and compounded daily from the date due until the date paid. Payment of such late fee(s) and finance charge(s) will not excuse or cure any breach or default for late payment. We may accept any check or payment from you without prejudice to our rights to recover the balance due or to pursue any other right or remedy. No endorsement or statement on any check or payment or any correspondence accompanying any check or payment or elsewhere will be construed as an accord or satisfaction. On each occurrence when we are unable to collect Fees from you for any reason, including but not limited to insufficient funds, closed account, or any other negative response, we may charge you a Return Payment Fee in the amount set forth in the Fee Schedule. You agree to pay all costs and expenses, of whatever nature, including attorneys’ fees, incurred by us or on our behalf in connection with the collection of any unpaid charges and fees.
b) Advance Deposit of Funds for Payment of Fees. If there are credit-worthiness or international banking reasons for us to do so (as we may determine in our sole discretion), we may require you and you agree to make a deposit of funds in a non-interest-bearing account as we direct, as an advance on the payment of fees. We will make automatic withdrawals against such advance deposits in accordance with our normal billing practices as described herein. You will be required to replenish the advanced deposits periodically as the balance on such deposits falls below the minimum amount as we may direct to you from time to time in our discretion. Upon termination of this Merchant Agreement, any unused funds in your advanced deposit account after the payment of all fees and other associated expenses will be returned to you within a reasonable period of time, in the normal course of business, without interest.
3. Operations and Procedures
3.1 Compliance with Visa, MasterCard, and Discover Rules. Merchant agrees to be bound by the operating regulations and rules of Visa, MasterCard, Discover (the “Rules”) and any other card association or network organization utilized by Splitit in accordance with this Merchant Agreement, as any of the above referenced documents may be modified and amended from time to time. Merchant acknowledges that the Rules are located on the Visa and MasterCard.
3.2 Third Party-Compliance. Merchant shall be PCI DSS compliant and will annually validate such compliance. Merchant further agrees to comply with and be bound by, and to cause any third party who provides Merchant with services related to payment processing or facilitates Merchant’s ability to accept credit and debit cards and who is not a party to this Merchant Agreement to comply with and be bound by, the rules and regulations of Visa and MasterCard and any other card association or network organization related to cardholders and transaction information security, including, without limitation, PCI DSS, Visa’s Cardholder Information Security Program and MasterCard’s Site Data Protection Program.
3.3 Indemnification for Fines and Penalties. Merchant will indemnify and hold harmless Splitit and anyone acting on Splitit’s behalf from any fines and penalties issued by Visa, MasterCard or any card association or network organization and any other fees and costs arising out of or relating to the processing of Transactions by Splitit through the Splitit Platform and will promptly reimburse Splitit for any such fines, penalties, fees and costs.
3.4 Refunds. Merchant shall be entitled to request the refund of a Transaction at any time when the transaction is still in progress, in case a request of a full refund is duly submitted to Splitit by Merchant, Splitit shall process such refund and cancel the remaining installments under the Transaction. In case of a request for partial refund the merchant will choose whether to cancel the remaining installments under the transaction or to continue the plan with the updated installments amount. The Merchant should be notified that Splitit is subject to the maximum period of time that the gateway is allowing the merchant to process refunds, however, Merchant shall be entitled, on its own expense to independently apply to the applicable card association and any other relevant third party in order to have such refund approved and if such refund is approved by all relevant parties, Splitit is notified of such approval, Splitit shall process such refund.
3.5 Chargebacks. Splitit integrates with Merchant’s existing payment processor utilizing the Card Networks. Merchant understands that obtaining an authorization for any Splitit Transaction shall not constitute a guarantee of payment, and such Transaction can be returned or charged back to Merchant like any other transaction. In the event of a chargeback, Merchant shall exercise commercially reasonable efforts to promptly resolve the chargeback with Merchant’s payment processor. Merchant shall be solely liable for any chargeback initiated by Merchant’s customer. If a customer disputes any Transaction processed by Splitit, where the Transaction is charged back for any reason by the card issuing institution, or if Splitit has any reason to believe a Splitit Installment previously issued is not valid or otherwise deemed to be improper by Splitit in its sole discretion, any outstanding fees owed to Merchant may be deducted from any payment due to Merchant or may be charged against any of Merchant’s accounts. Merchant acknowledges and agrees that it is bound by the rules of the Card Networks with respect to any chargeback. Upon Splitit’s receipt of any notice of chargeback for a Transaction, Splitit shall provide such notice to Merchant, and Splitit may immediately terminate all activities regarding the Transaction. Merchant shall respond to such notice within two (2) business days by advising Splitit whether Merchant disputes such chargeback, and Splitit shall deem Merchant’s failure to respond within such period as Merchant’s consent to the chargeback.
3.6 Effect of Chargebacks. In the event of a chargeback, Splitit will be unable to maintain securitization of the Transaction during chargeback processing. Merchant acknowledges that Merchant was informed of and understands the forgoing. Therefore, even if Merchant is successful in opposing the chargeback, Splitit cannot assure processing of the remaining Installments.
3.7 Point of Sale Terminals and Merchant Accounts. Each merchant shall have a separate Merchant ID (“MID”). When applicable, the Parties agree that for any point of sale that uses the Splitit services, Merchant will establish a separate Terminal ID (“TID”). The TID and the MID will be operated by Splitit. Merchant shall provide Splitit the TID, and the user name and password for such TID. Merchant hereby grants Splitit the irrevocable authorization to check and verify with any Gateway and/or Acquirer the TID, user name and password for any TID.
3.8 Reserves and other Protective Actions. If Splitit determines, in its sole discretion, that Merchant’s Account receives, or is likely to receive, a disproportionately high number of customer complaints, reversals, chargebacks, disputes, claims, fees, fines, penalties or other liability (collectively “Risk Factors”), Splitit may take certain actions in connection with Merchant’s Account and/or Merchant’s use of the Splitit Services in order to secure the performance of Merchant’s obligations under this Merchant Agreement.
a) Termination of New Transaction Acc Splitit may refuse to provide securitization for all future transactions until future notice or permanently. However, Splitit will continue to provide securitization though Authorizations for existing Transactions until the last Installment is paid. Splitit obligation to provide such continued Authorizations is subject to the terms of this Agreement, including, without limitation, the Chargeback and Refund provisions. Merchant agrees to pay all Splitit’s fees during such period.
b) Additional Actions. Splitit may take other reasonable actions Splitit determines are necessary to protect against the Risk Factors associated with Merchant’s Splitit Account, including requesting additional collateral from Merchant such as a letter of credit or a personal guarantee. Splitit may contact Merchant’s customers, on its behalf, in the event that Splitit is investigating potential fraud.
c) Security Interest. Merchant hereby grants to Splitit a security interest in any of the accounts referred to in Section 3 or any other accounts belonging to Merchant held by any designated depository (or by any other financial institution) and irrevocably authorizes Splitit to make such withdrawals at such times and in such amounts as it may deem necessary hereunder (“Security Interest”). Merchant, hereby, irrevocably instructs any financial institutions to honor any requests made by Splitit under the terms of this provision, including, but not limited to, requests for: account balance or other information, statements, hold, freeze, transfer or any other action Splitit deems necessary to protects its Security Interest. Merchant understands and agrees that Splitit is relying on such irrevocable instructions and such instructions are a major inducement for Splitit to enter into this agreement.
d) Setoff. Merchant agrees that, in the event of a default by Merchant, and in furtherance of its rights described herein and otherwise, Splitit has a right of setoff and may apply any of Merchant’s deposit balances or any other monies due Splitit from Merchant towards the payment of amounts due from Merchant under the terms of this Merchant Agreement. The rights stated herein are in addition to any other rights Splitit may have under applicable law.
3.9 Financial and Other Information
a) Books and Records. Splitit reserves the right to reassess your eligibility for any of the Splitit Services if your business is or becomes materially different from the information you provided in your application. Splitit may request at any time and you agree to provide commercially relevant information about your financial condition. You agree to retain copies of all paper and electronic sales slips and credit slips submitted to Splitit for a period of three (3) years from receipt of funds in the last Installment, or such longer period of time as may be required by the operating rules or regulations of the card associations or network organizations, by law, or by Splitit as specifically requested in writing. You further agree that Splitit and anyone acting on Splitit’s behalf may seek injunctive relief with respect to your failure to furnish financial or other information upon request.
b) Credit Report Authorization. You understand and agree that you are providing Splitit with your “written instructions” in accordance with the Fair Credit Reporting Act, and you are authorizing Splitit to obtain your, or any of your owners’, officers’, shareholders’, partners’, proprietors’, managing agents’ or guarantors’ credit reports from a credit bureau for the purpose of processing this application for Splitit Services. You further understand and agree that you are authorizing Splitit to obtain your credit report on an ongoing basis for account review purposes. In addition, you understand and agree that you will provide Splitit with the irrevocable Authorization to Obtain Information (“Authorization to Obtain Information”) set forth in the Merchant Application, and that this Authorization to Obtain Information shall not be time barred.
c) Release and Exchange of Financial Information. You hereby authorize Splitit or any depository institution to release any financial information concerning Merchant or its accounts to Splitit. Splitit may exchange information about Merchant, Merchant’s owners, principals, partners, proprietors, officers, shareholders, managing agents and guarantors with other financial institutions and credit card associations and network organizations that may reasonably request such information. Merchant hereby authorizes Splitit to disclose such information without any liability whatsoever to Merchant.
4. Intellectual Property
4.1 Grant of Non-Exclusive License for Splitit Platform. During the Term of this Merchant Agreement, you are hereby granted a non-exclusive, non-transferrable, limited right to use the Splitit Platform, so long as you are current in paying all applicable Fees in accordance with this Merchant Agreement subject to the restrictions contained herein and restrictions communicated to you in the future by us. Merchant acknowledges the Splitit Platform under this Merchant Agreement is subject to a patent issued to Splitit by the United States Patent and Trademark Origination on July 4, 2013, as Patent number 8290864, and is further subject to a patent published by the World Intellectual Property Organization on October 4, 2014, as application number, WO/2014/053920.
4.2 Ownership. Merchant shall not obtain title, copyrights or any other proprietary right to the Splitit Platform. At all times, Splitit retain all rights to the Splitit Platform, including but not limited to updates, enhancements and additions. Merchant shall not disclose the Splitit Platform to any party, convey, copy, license, sublicense, modify, translate, reverse engineer, decompile, disassemble, tamper with, create any derivative work based or otherwise attempt to discover the source code or trade secrets of the Splitit Platform or related technology.
4.3 Use of Platform. Merchant’s use of the Splitit Platform shall be limited to that expressly authorized by Splitit. Splitit’s suppliers and vendors are intended third-party beneficiaries of this Merchant Agreement to the extent of any terms herein pertaining to such suppliers’ ownership rights; such suppliers have the right to rely on and directly enforce such terms against Merchant. Merchant shall use and operate the Splitit Platform only for the Splitit Services.
4.4 Use of Trademarks. Except as authorized in this Merchant Agreement, you shall not take any actions inconsistent with our ownership of Splitit Platform, our Trademarks and any associated registrations or attack the validity thereof. You shall not use the Splitit Platform or our Trademarks in any manner that would indicate that you are using such Splitit Platform or our Trademarks other than as a licensee nor assist any third party do the same.
4.5 Compliance with Laws. You agree that you will comply, at your own expense, with all applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction over such matters. You shall not use the Splitit Platform in any manner, or in furtherance of any activity that may cause us to be subject to investigation, prosecution or legal action. We reserve the right to amend, modify or change our policies, procedures and guidelines, and you shall comply with all of our then current policies, procedures and guidelines governing the Splitit Platform.
4.6 Splitit Platform Service and Maintenance. Merchant will promptly notify Splitit of any failure or other incident resulting in the loss of use of the Splitit Platform or need for repair or maintenance, whereupon Splitit will use commercially reasonable efforts to repair or make the necessary arrangements to obtain required maintenance. Merchant shall cooperate with Splitit in its attempt to diagnose any problem with the Splitit Platform. In the event Merchant’s Splitit Platform requires additional Software, Merchant is obligated to cooperate with Splitit to achieve service restoration. Merchant acknowledges that Splitit does not warrant that any such repair or maintenance efforts will be successful. If Splitit’s efforts are not successful, Merchant may terminate this Agreement in accordance with Section 3. THE FOREGOING SHALL CONSTITUTE YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, FOR INTERRUPTIONS, OUTAGES OR OTHER DELAYS IN THE SPLITIT SERVICES OR SPLITIT PLATFORM.
4.7. Use of Merchant Promotional Materials. Merchant shall make available to Splitit certain Merchant logos, button links, text links, and/or other graphic for display and use on the Splitit website (the “Promotional Materials”). Merchant agrees that Splitit may prominently display the Promotional Material on Splitit’s website in a reasonable manner. During the Terms of this Merchant Agreement, Merchant grants Splitit a non-exclusive, worldwide, royalty-free license to use any of the Merchant’s intellectual property necessary to display the Promotional Materials on Splitit’s website for marketing and promotional purposes.
Merchant agrees that by accepting and using the Splitit Services, Merchant will receive from Splitit certain property and highly sensitive information, including but not limited to the Splitit Platform.
5.1 Definition. “Confidential Information” shall mean any and all technical and non-technical information disclosed, provided or made available by Splitit to Merchant, either directly or indirectly, in writing, electronically, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, materials and equipment), for the purpose of evaluating a Transaction, at any time, including prior to the date hereof, which includes, but is not limited, to proprietary information, marketing techniques and know-how, data compilations, analyses, projections, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of Splitit.
5.2 Exclusions from Confidentiality Information. Confidential Information shall not include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Splitit; (ii) becomes publicly known and made generally available after disclosure by Splitit through no action or inaction of Merchant; (iii) is already in the possession of Merchant at the time of disclosure by Splitit as proven by written records; or (iv) is obtained by Merchant from a third party without a breach of such third party’s obligations of confidentiality.
5.3 Nonuse and Nondisclosure. Merchant agrees not to use any Confidential Information of Splitit for any purpose except those purposes stated in this Merchant Agreement.
5.4 Required Disclosure. If Merchant is required by law regulation, or legal or administrative process (by oral questions, interrogatories, requests for information, subpoena, civil investigative demand, or similar legal process) to disclose any Confidential Information, Merchant will provide Splitit with prompt written notice of such requirement(s) so that Splitit may seek an appropriate protective order or waive compliance with the provisions of this Merchant Agreement, and Merchant will cooperate with Splitit to obtain any such protective order. If, failing the entry of a protective order or the receipt of a waiver hereunder, Merchant, in the opinion of its counsel, is legally compelled to disclose Confidential Information, Merchant may disclose only that portion of such Confidential Information as is legally required; provided, that Merchant agrees to use commercially reasonable efforts to obtain assurance that confidential treatment will be afforded to such Confidential Information; provided, further that Merchant shall promptly notify Splitit, in writing, of Merchant’s determination to make such disclosure and the scope and contents of such disclosure.
5.5 Maintenance of Confidentiality. Merchant agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, Merchant shall use at least that degree of care that it takes to protect its own confidential information of a similar nature, but in no event less than reasonable care, and shall ensure that its employees and representatives who have access to Confidential Information have signed a nonuse and nondisclosure agreement protecting Confidential Information that is substantially similar in content to the provisions hereof, prior to any disclosure of Confidential Information to such employees.
5.6 Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by Splitit to Merchant, and all copies thereof which are in the possession of Merchant, shall be and remain the property of Splitit and shall be promptly returned to Splitit, or destroyed, upon Splitit’s written request.
5.7 Remedies. The Parties agree that money damages would not be a sufficient remedy for any breach or threatened breach of this Section 5 by Merchant, and that Splitit shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and the Parties further agree to waive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive remedy for breach of this Section 6 but shall be in addition to all other remedies available to Splitit at law or equity. Merchant agrees to indemnify and hold harmless Splitit from any damage, loss, cost or liability relating to or resulting from any unauthorized use or disclosure by Merchant of the Confidential Information, including all legal fees and disbursements and the costs of enforcing this Merchant Agreement or any action for relief pursuant to this Section.
6. Representations AND Warranties
6.1 Mutual. Each Party represents and warrants to the other that (i) this Merchant Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms; (ii) the Party’s obligations under this Merchant Agreement do not violate any law or breach any other agreement to which such Party is bound; (iii) it has all necessary right, power and ability to execute this Merchant Agreement and to perform its obligations therein; and (iv) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Merchant Agreement.
6.2 Merchant. You represent and warrant that you are engaged in a lawful business and are duly licensed to conduct such business under the laws of all jurisdictions in which you conduct business. You further represent and warrant that all statements made by you in this Merchant Agreement, or in any other document relating hereto by you or on your behalf, are true, accurate and complete in all material respects.
6.3 Compliance with Applicable Laws. You will comply with all applicable laws, regulations, rules, ordinances, and orders of governmental authorities having jurisdiction over you and your business. You will further comply with the Payment Card Industry Data Security Standard (PCI DSS), the Gramm-Leach-Bliley Act, the National Automated Clearing House Association (NACHA) and any other regulatory body or agency having jurisdiction over the subject matter hereof or any association recognized within the applicable industry. You will comply with all material terms of the then-current policies, procedures, and guidelines of Splitit governing the Splitit Services.
6.4 Transactions. You represent that each Transaction delivered hereunder will represent a bona fide sale to an authorized cardholder by you for the amount shown on the sales slip, which shall accurately described the goods and services sold and constitutes the binding obligation of the cardholder, free from any claim, demand, defense, setoff or other adverse claim whatsoever. You will fulfill completely all of your obligations to the cardholder and will resolve any consumer dispute or complaint directly with the cardholder.
6.5 Internal Revenue Service (“IRS”) Reporting. You herby warrant and certify that: (i) the taxpayer identification number (“TIN”) provided on the Merchant Application is your true and correct TIN; or (ii) you are not subject to backup withholding because (a) you are exempt from backup withholding, (b) you have not been notified by the IRS that it is subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified you that you are no longer subject to backup withholding, and (iii) You are a citizen of the United States of America (“U.S.”) or other U.S. person. (For federal tax purposes, you are considered a U.S. person if You are: an individual who is a U.S. citizen, or U.S. resident alien, partnership, corporation, company or association created or organized in the United States or under the laws of the United States, an estate (other than a foreign estate), or a domestic trust (as defined in the Internal Revenue Code section 301.7701-7.)
6.6 Splitit. Splitit represents and warrants that Splitit Services provided to you hereunder will substantially conform to applicable laws and regulations and shall be provided in a timely and commercially reasonable manner. You acknowledge that Services are designed for use with certain third-party programs, including, without limitation, certain internet browser software programs. You will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. We do not warrant the services of any third party, including, without limitation, any Third Party Service Providers, Affiliate Partners, VARS, or Card Associations. Splitit is and will take responsibility for its errors and omission in the operation of Splitit’s system. Merchant agrees that Splitit has no responsibility whatsoever for the actions or inactions of other participants in the processing the Splitit Installments, including, but not limited to, any customer, Merchant, Gateway, or Acquirer.
6.7 Remedies. The Parties agree that money damages would not be a sufficient remedy for any breach or threatened breach of this Section 6 by Merchant and that Splitit shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. The Parties further agree to waive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive remedy for breach of this Section 6 but shall be in addition to all other remedies available to Splitit at law or equity. Merchant agrees to indemnify and hold harmless Splitit from any damage, loss, cost or liability relating to or resulting from any unauthorized use or disclosure by Merchant of the Confidential Information, including all legal fees and disbursements and the costs of enforcing this Merchant Agreement or any action for relief pursuant to this Section.
7. Data Security
7.1 Data Usage
a) By Merchant. Merchant agrees that it will use any personal, financial, Card, or Transaction information (“Card Data”) obtained from a cardholder in connection with a card Transaction solely for the purpose of processing a Transaction with that cardholder or attempting to re-present a chargeback with respect to a Transaction. Merchant agrees to comply will all applicable and then-current legal obligations and security measures of any nation, state, or governmental authority having jurisdiction over Merchant, including without limitation, those issued by the United States, any state and/or municipal authority, Card Association, the United States Federal Trade Commission, PCI DSS and any other applicable governing body in connection with your collection, security and dissemination of any Card Data on your website. Merchant is fully responsible for the security of data on its website or otherwise in its possession or control.
7.2 PCI Compliance. You expressly agree that at all times you shall be compliant with the Payment Card Industry Data Security Standards (PCI DSS) and the Payment Application Data Security Standards (PA DSS), as applicable. You agree to promptly provide us with documentation evidencing your compliance with PCI DSS and/or PA DSS if requested by us. You also agree that you will use only PCI compliant service providers in connection with the storage, or transmission of Card Data defined as a cardholder’s account number, expiration date, and CVV2. You must not store CVV2 data at any time.
7.3 Data Storage. Unless you receive the express consent of your customer, you may not retain, track, monitor, store or otherwise use Card Data beyond the scope of the Transaction. Further, unless you receive the written consent of each Acquiring Bank and/or the Card Networks, as applicable, you agree that you will not use nor disclose the Card Data for any purpose other than to support payment for your goods and services. Card Data must be completely removed from your systems, and any other place where you store Card Data, within 24 hours after you receive an authorization decision unless you have received the written consent of your customer to retain the Card Data for the sole purpose of processing recurring payments. To the extent that Card Data resides on your systems and other storage locations, it should do so only for the express purpose of processing your Transactions. All Card Data and other information provided to you by Splitit in relationship to the Splitit Services and all Card Data will remain the property of Splitit, its Acquiring Bank or the Card Companies, as appropriate.
7.4 Accuracy and Retention of Data. You agree that you are solely responsible for verifying the accuracy and completeness of all Card Data submitted to us associated with your Splitit Account and verifying that all corresponding funds are accurately processed. Except as otherwise provided herein, we shall have no obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or other Card Data collected or processed by us. You acknowledge that upon termination of this Merchant Agreement, we shall have no obligation to provide you with any Card Data
7.5 Data Access. You shall provide us with remote access to Card Data and to your applicable databases, and you shall maintain and update our database access protocols. You agree to authorize your credit card payment processor(s) to provide us with unrestricted remote access to your credit card payment processing information. You give us the right to access your payment gateway, Splitit account, and other reasonable methods for obtaining the Card Data, for use in providing Services.
7.6 Chargebacks. You authorize Splitit to act on its behalf to communicate with any person to assist in chargeback and retrieval resolution. You agree to provide all chargeback notifications to us within 48 hours of notification of such chargeback. Such notification must be electronically delivered in a manner directed by us in our current provision of the Splitit Services. We shall not be held accountable for any chargeback that is not received or if notification occurs outside of the 48 hour time period, unless agreed to in writing by us.
7.7 Password Security. Splitit will issue to Merchant, or permit you to use, a user name and password to enable you and/or your employees and agents to access your Splitit account and to use Splitit services. You agree to restrict use and access to your password and log-on ID to your authorized employees and agents as may be reasonably necessary and will ensure that each such employee or agent is aware of and complies with the terms of this Merchant Agreement. You will not give, transfer, assign, sell, resell or otherwise dispose of the information and materials provided to you to utilize the Splitit Services. You are solely responsible for maintaining adequate security and control of any and all IDs, passwords, or any other codes that are issued to you by Splitit, each Acquiring Bank or the Card Network. Upon Splitit’s request, you shall provide Splitit with all available information regarding such authorized employees and agents. You shall cooperate in any inquiry regarding such authorized employees and agents.
7.8 Audit. If Splitit believes that a security breach or compromise of Card Data has occurred, Splitit may require you to engage, at your expense, a third party auditor selected by Splitit to conduct a security audit of your systems and facilities and issue a report to be provided to Splitit, the Acquiring Banks and the Card Networks. In the event that you fail to initiate an audit within ten (10) days of Splitit’s request, Splitit may conduct or obtain such an audit at your expense, and you will fully cooperate with and provide prompt access to Splitit or its designee.
8. TERM AND TERMINATION
8.1 Term. This Merchant Agreement shall come into force upon your first use of the Splitit Platform and shall remain in full force and effect for an unlimited period of time, until otherwise terminated as provided below (“Term”).
8.2 By Merchant. You may terminate your use of the Splitit Services at any time upon 90 days written notice.
8.3 By Splitit. Splitit may terminate your use of the Splitit Services:
a) Upon 60 days written notice for any reason;
b) Upon 30 days written notice if we decide, in our discretion, that you become or are likely to become, ineligible for the Splitit Services because there is a high level of Risk Factors associated with your Splitit Account;
c) Immediately, if you fail to comply with the terms of, or if you are unable to pay or perform, or if you refuse to perform any of your obligations under this Merchant Agreement, or under any of the Splitit Agreements that apply to the Splitit Services, or upon request by Visa, MasterCard, Discover and any other card association or network organization related to cardholders and Transaction.
d) Upon 30 days written notice, subject to the occurrence a Change in a Merchant Business (as this term is defined below).
8.3 Change in Merchant Business. Upon the occurrence of any of the following events, Splitit may, in its sole discretion, terminate this agreement upon 30 days written notice or modify the terms of this Merchant Agreement to address issues arising therefrom, including, but not limited to, requirements of applicable card associations or network organization: (a) if you transfer or sell any substantial part (10% or more) of your total stock, assets and/or to liquidate; or (b) if you change the basic nature of your business (each, a “Change in a Merchant Business”). Merchant agrees to provide Splitit sixty (60) days prior written notice of its intent to make a Change in a Merchant Business.
8.4 Effect of Termination. If your use of the Splitit Services is terminated, your use of the Splitit Services will immediately end. You agree to complete all pending Transactions, immediately remove all Splitit logos, and stop accepting new Transactions through the Splitit Platform. If your use of the Splitit Services is terminated, you will not be refunded the remainder of the Monthly Fees that you have paid for the Splitit Services. Splitit shall continue to process any remaining Installments for existing Transactions, and you will continue pay all fees for such Transactions until the last Installment is received. In addition, you shall continue to pay monthly service fees and other applicable fees for thirty (30) days following the receipt of the last Installment. Upon termination of this Merchant Agreement for any reason whatsoever, all rights and interests under this Merchant Agreement shall be extinguished and shall be given no further force nor effect, except that: (i) all accrued payment obligations hereunder, including any payment of finance charges, and related fees and charges, shall survive such expiration or termination; and (ii) the provisions of this Merchant Agreement relating to confidentiality, warranties, limitation of liability, indemnification, governing law, severability, headings and this paragraph shall survive termination or expiration of this Merchant Agreement.
9.1 Limitation of Liability. THE SPLITIT PLATFORM AND THE SPLITIT SERVICES AND ALL ACCOMPANYING DOCUMENTATION ARE PROVIDED TO YOU ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SPLITIT MAKES NO WARRANTY THAT THE SPLITIT SERVICES WILL BE CONTINUOUS OR ERROR-FREE. Merchant understands and agrees that due to the protracted repayment period and the risk of chargebacks, the Splitit installment processing solution is less secure than a traditional transaction. Fraud prevention is Merchant’s sole responsibility, and Splitit is not responsible for any non-valid or fraudulent Transactions that are processed.
9.2 Exclusion of Consequential Damages. UNDER NO CIRCUMSTANCES WILL WE OR ANY OF OUR AFFILIATES OR VENDORS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS OF THE PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES HOWEVER OR WHENEVER ARISING, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE OR OTHERWISE, REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR TOTAL LIABILITY TO YOU, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO ANY SERVICES OR ANY OTHER PRODUCTS OR SERVICES, SHALL NOT EXCEED THE AGGREGATE FEES RECEIVED BY US FOR PROVIDING YOU WITH SERVICES DURING THE THIRTY (30) DAYS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
9.3 Indemnification. You agree to defend, indemnify and hold Splitit, its affiliates, officers, directors and employees, agents, contractors harmless from any claim or demand (including attorneys’ fees) made or incurred by any third party due to or arising out of your breach of this Merchant Agreement and/or your use of the Splitit Platform or the Splitit Services accessed through the Splitit Platform. If you are an agency or instrumentality of a state of the United States and are precluded by the law of your state or the United States, as applicable, from entering into indemnification obligations, then the obligations under Sections 8.1 and 8.2 shall apply only to the extent permitted by such law.
9.4 Assignments and Transferability. Merchant will not have the right or the power to assign any Merchant’s rights or delegate the performance of any of its obligations under this Merchant Agreement without the prior written consent of Splitit. Any attempt by Merchant to assign its rights or to delegate its obligations in violation of this paragraph shall be void. Merchant agrees that Splitit will have the right to assign this Merchant Agreement to our successors and/or assigns (including but not limited to successors and/or assigns in connection with a merger, consolidation, sale of assets, or other change of control), subsidiaries, affiliates, Affiliate Partners and/or Third Party Service Providers without Merchant’s prior written consent or notice. Merchant acknowledges that the transferable rights of Splitit hereunder shall include, but shall not be limited to, the authority and right to debit the Merchant’s account(s) as described herein. Splitit will use commercially reasonable efforts to provide subsequent notice to Merchant in the event of such assignment.
9.5 Notices. All notices to Merchant shall be given electronically, sent to the electronic mail address provided by Merchant during registration for Services and/or posted in the Merchant Control Panel of your Splitit Account and shall be effective upon transmittal. All notices to Splitit shall be given electronically to email@example.com. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by e-mail, or five (5) days after the date of mailing if sent by certified or registered mail, postage prepaid. Any termination notice to Splitit shall be given electronically by sending an email to Merchant’s authorized designee from within the Merchant control panel of your Splitit account.
9.6 Waiver. The failure of any party to insist on or enforce strict performance of any provision of this Merchant Agreement or to exercise any right or remedy under this Merchant Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.
9.7 Governing Law; Jurisdiction. This Merchant Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of New York, without reference or giving effect to its conflicts of law principles, and shall be resolved on an individual basis without resort to any form of class action and not consolidated with the claims of any other parties. Merchant hereby irrevocably consent to the personal jurisdiction of and venue in the state and federal courts located in New York County, in the State of New York, with respect to any action, claim or proceeding arising out of or related to this Merchant Agreement and expressly agrees to the exclusive jurisdiction of such courts and that Merchant will not commence or prosecute any such action, claim or proceeding other than in such courts, except as otherwise provided herein. Merchant waives trial by jury with respect to any litigation arising out of or relating to this Merchant Agreement.
9.8 Attorney’s Fees. Should it be necessary for Splitit to defend or enforce any of its rights under this Merchant Agreement in any collection or legal action, Merchant agrees to reimburse Splitit, as applicable, for all costs and expenses, including reasonable attorney’s fees, as a result of such collection or legal action. Without limiting the generality of the foregoing, Merchant agrees to reimburse Splitit, as applicable, for all costs and expenses, including reasonable attorney’s fees, incurred by Splitit in enforcing or defending its rights under this Merchant Agreement, without regard to whether there has been an adjudication on the merits in any such action.
9.9 Arbitration. Any dispute or claim arising out of or relating to this Merchant Agreement, except claims involving intellectual property and claims for indemnification, will be resolved by binding arbitration. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) rules, as modified by this Merchant Agreement, and will take place in New York, New York. This Merchant Agreement evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. An arbitrator may not award relief in excess of or contrary to what this Merchant Agreement provides or order consolidation or arbitration on a class wide or representative basis, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither Party may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. All administrative fees and expenses will be divided equally between the Parties, but each Party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration. IF FOR ANY REASON THIS ARBITRATION CLAUSE IS DEEMED INAPPLICABLE OR INVALID, THE PARTIES WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE ANY CLAIMS ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. No action, regardless of form, arising out of or in conjunction with the subject matter of this Merchant Agreement, except for claims involving intellectual property and claims for indemnification, may be brought by either Party more than one (1) year after the cause of action arose.
9.1o Prohibition of Class and Representative Actions and Non-Individualized Relief. MERCHANT AGREES THAT IT MAY BRING CLAIMS AGAINST SPLITIT ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. THE ARBITRATOR 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 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 SPLITIT MERCHANTS.
9.11 Headings. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Merchant Agreement.
9.12 Severability. If any provision of this Merchant Agreement or portion thereof is held to be unenforceable, such a determination will not affect the remainder of this Merchant Agreement. Paragraph headings are included for convenience only and are not to be used in interpreting this Merchant Agreement.
9.13 Entire Agreement. This Merchant Agreement together with all of our policies referenced herein sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Merchant Agreement. You acknowledge that this Merchant Agreement reflects an informed, voluntary allocation between Splitit and you of all risks (both known and unknown) associated with Services.
9.14 Single Agreement. Merchant and Splitit agree that, in order for the rights and obligations of the parties to be fairly and equitable administered, the various transactions contemplated under this Merchant Agreement and the Merchant Application shall constitute a single, integrated transaction, and not a series of separate or discrete transactions.
9.15 Telephone Monitoring and Contacting Merchant. From time to time Splitit may monitor and record telephone calls regarding Merchant’s account to assure the quality of their service(s). Merchant agrees, in order for Splitit to service the account or to collect any amounts Merchant may owe, that Splitit may from time to time make calls and/or send e-mails and/or text messages to Merchant, using prerecorded/artificial voice messages and/or through the use of an automatic dialing device, at any telephone number associated with Merchant’s account, including wireless telephone numbers that could result in charges to Merchant, or at any email address Merchant provide to Splitit.
9.16 Financial Accommodation. The acquisition and processing of sales slips hereunder is a financial accommodation and, as such, in the event Merchant becomes a debtor in bankruptcy, this Agreement cannot be assumed or enforced, and Splitit shall be excused from performance hereunder.