Payabli Sub-Merchant Terms and Conditions

Last updated: August 12, 2024

PLEASE READ SECTIONS 33 AND 34 CAREFULLY AS THEY RELATE TO ARBITRATION AND CLASS ACTIONS

This agreement is between “you” and Centavo, Inc. d/b/a Payabli (“Payabli,” “we,” “our,” “us”) and it governs your use of our payment processing services (“Service(s)”). We do, however, utilize a third-party vendor (“Processor”) in certain circumstances to assist us in providing portions of the Services to you.

1. THE SERVICES. The Services are intended to be used for business purposes and not for personal, family or household use. The Services allow you to accept payment from your customers via bankcards (“Cards”) validly issued by Visa, Mastercard, Discover, and American Express (the “Card Brands”) and, if approved, via automated clearing house transactions (“ACH”). The Services may include a card account updater service, as described below, if such service is made available by us. We reserve the right to change the availability of any of the Services without notice.
2. REQUIRED INFORMATION, IDENTITY VERIFICATION. Our sponsor bank, Wells Fargo Bank, N.A. (“Sponsor Bank”), and the Card Brands require us to verify your identity, credit, business operations and compliance with the obligations under this agreement. In order to use the Services, you must provide us sufficient documentation to verify your identity and other information that you provide to us. You also authorize us to order a credit report on you as a merchant, or any of your owners or officers. We will ensure that you are provided with the name and address of the consumer credit reporting agency furnishing such report. You will provide us with your updated business and financial information Payabli may reasonably request from time to time. If the scope or nature of your business or the type of products or services you offer changes, you must notify us prior to the change. You authorize us from time to time, to make additional business and personal credit inquiries in connection with updating, renewing or continuing the Services under this agreement; and to provide any requested information to Sponsor Bank and/or the Card Brands upon request.. Payabli, Sponsor Bank, Processor and any Card Brand, regulator, auditor or any other entity having authority may audit Merchant’s records relating to this Merchant Agreement at any time. Merchant shall provide all documentation, information or other inspection rights requested by Payabli’s, Processor’s, or Sponsor Bank’s regulators or auditors or otherwise to enable Payabli, Processor and Sponsor Bank to meet the requirements of applicable law and policies.
3. PROCESSING LIMITS. We will assign a maximum dollar amount per sales ticket and an aggregate maximum dollar amount of Card and ACH transactions (if applicable) per calendar month. If your use of the Services meets certain Card processing volume thresholds, you must enter into an additional agreement with Sponsor Bank upon request.
4. DATA USE. The transaction data generated by your use of the Services shall be considered Payabli’s data and if the transaction data contains any data relating to you personally or your business, you hereby grant us a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display this data for the following purposes: (a) providing and improving the Services; (b) using the data internally, including but not limited to, data analytics so long as such data is anonymous and aggregated with other customer data; (c) complying with applicable legal requirements and assisting law enforcement agencies; (d) any other purpose for which you provide consent.
5. INTELLECTUAL PROPERTY RESTRICTIONS. Any documentation provided to you in connection with the Services (“Documentation”) is protected intellectual property of Payabli or its third party providers. You shall not (and shall not permit any agent or third party) to, in violation of this agreement: (a) copy all or any portion of the Documentation; (b) decompile, disassemble, or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the contrary) the Services or Documentation, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Services or any Documentation or any portion thereof; (c) modify, translate, or otherwise create any derivative works based upon the Services or any Documentation; (d) distribute, disclose, market, rent, lease, assign, sublicense, pledge, or otherwise transfer the Services or any Documentation, in whole or in part, to any third party; or (e) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on the Services or in any Documentation.
6. ACCOUNT UPDATER SERVICE. Subject to the terms and conditions of this agreement, the account updater service, (if made available by us) will provide you with updated card account information from the Card Brands for Cards that your customers have pre-authorized for recurring transactions. If you elect to enroll in account updater, you authorize Payabli to provide information about you and Cards used by your customers to Payabli’s service providers, including the Card Brands. You may use account updater solely for updating cardholder information in order to complete pre-authorized transactions in accordance with the Rules (defined below), and will not use it for any other purpose. You will not request an update for accounts that have been closed or submit account updater inquiries on behalf of any other entity. To use account updater to update Card data, you must:(a) request an update for every participating account in your customer database at least once every 180 calendar days; (b) submit requests only for those accounts with which you have an ongoing customer relationship, e.g., subscription services, “express checkout” services, membership (club) services, or other recurring payment services; (c) update your customer account database within five business days of receiving an update from us; (d) ensure that information received from the account updater service is properly incorporated into your customer database for utilization in future transactions; (e) correct erroneous account information within five business days of receipt of error notification from us or the Card Brands; and (f) correct operational errors within five business days of receipt of error notification from our Sponsor Bank, Payabli, or the Card Brands.
7. COMPLIANCE WITH RULES, LAWS AND POLICIES. You must comply with the applicable Card Brand rules and operating regulations and (if applicable) the National Automated Clearing House Association rules (“NACHA“) (collectively, the “Rules“). An abridged version of the Visa, Mastercard and American Express Rules may be accessed at https://usa.visa.com/support/consumer/visa-rules.html,   https://www.mastercard.us/en-us/business/overview/support/rules.html, and https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf. Copies of the NACHA Operating Rules and Guidelines are available for review online at www.achrulesonline.org. Payabli is a Payment Card Industry (“PCI”) level 1 service provider and will comply with the Payment Card Industry Data Security Standards (“PCI DSS”) to the extent Payabli possesses or otherwise stores, processes, or transmits Cardholder data on your behalf. If you possess or otherwise store, process, or transmit Cardholder data, then you must comply with PCI DSS. You further agree to comply with applicable federal, state, and local laws, rules, and regulations (collectively, “Laws“). You also agree to the terms of the Privacy Policy, Credit Policy, and other policies as applicable found at https://www.Payabli.com/en-US/Legal  (“Policies“). You will assist us if we are required to ascertain your compliance with any of the Rules, Laws, PCI DSS, or Policies. We may, within our sole discretion, suspend the Services for a reasonable period of time required to investigate suspicious or unusual activity, and we shall have no liability for any losses you may attribute to any such suspension. We may reverse Card transactions that we deem to violate this agreement, the Rules, Laws, PCI DSS, or Policies, and you agree to reimburse us for any such reversal. If any terms of this agreement conflict with the Rules, including PCI DSS, the Rules will govern. If access to Cardholder data in the possession of you or your agents is compromised, you must immediately notify us and cooperate with us regarding reasonable requests for information regarding the compromise.
8. THIRD PARTY SERVICE PROVIDERS. You may be using special services or software provided by a third party to assist you in processing transactions, including authorizations and settlements, or accounting functions. You must notify us if you use such third-party service providers and ensure that such third parties comply with the Rules (including PCI DSS) and Laws. If access to Cardholder data in the possession of you or your agents is compromised, you must immediately notify us and cooperate with us regarding reasonable requests for information regarding the compromise.
9. PROHIBITED PRACTICES. You shall not: (a) interfere with or disrupt the integrity or performance of the Services, or the data contained therein; or (b) attempt to gain unauthorized access to the Services. You will not present for processing or credit, directly or indirectly, any transaction not originated as a result of a Card transaction directly between you and a Cardholder or any transaction you know or should know to be fraudulent or not authorized by the Cardholder. We will refer perpetrators of fraudulent transactions, in our discretion, to the appropriate law enforcement agency. You must not honor any Card that is expired or listed on a current Electronic Warning Bulletin file, regardless of whether authorization has been obtained. You must not request an ACH transfer that violates the Rules or Laws. You agree not to initiate any ACH debits or credits to or from a savings account, or a foreign bank or the branch of a foreign bank in a U.S. territory. The term foreign bank does not include: (i) A U.S. agency or branch of a foreign bank; and (ii) An insured bank organized under the laws of a U.S. territory. You may not split transactions into multiple Card transactions except where: (x) partial payment is entered on the transaction record and the balance of the transaction amount is paid in cash or by check at the time of transaction; or (y) the amount represents an advance deposit in a Card transaction completed in accordance with this agreement and the Rules. You will not use the Services to accept amounts representing the refinancing of an existing uncollectible obligation, debt, or dishonored check of a Cardholder. You may not process transactions for, receive payments on behalf of, or (unless required by Law) redirect payments to a third party. You must not use the Services for high-risk transactions or illegal activities, as per the Policies. We reserve the right to refuse to allow you to use the Services for any reason. If access to Cardholder data in the possession of you or your agents is compromised, you must immediately notify us and cooperate with us regarding reasonable requests for information regarding the compromise.
10. USE OF TRADEMARKS. The Card Brands are the sole and exclusive owners of their trademarks and trade dress and your use of their marks must comply with the Rules. We are the sole and exclusive owner of our trademarks and trade dress and your use of our marks will fully comply with our policies and instructions (collectively the “Marks”). At any time, we may prohibit your use of the Marks or require changes to your use of the Marks as we deem necessary or appropriate. Your right to use any of the Marks will cease upon termination of this agreement and you agree not to contest the ownership of the Marks for any reason.
11. CARD ACCEPTANCE. You will honor, without discrimination, any valid Card properly tendered by a person asserting to be the person in whose name the Card is issued (“Cardholder”). Terms specific to American Express cards are set forth below. In accepting Cards for the purchase of your goods and services, you shall comply with the requirements of this agreement, including but not limited to the Rules, as the same are revised from time to time. Our name will appear in conjunction with your name on Cardholders’ statements. You will not accept any payments from a Cardholder relating to previous charges for merchandise or services, and if you receive such payments, you will promptly remit them to us.
12. SUBMISSION OF VALID TRANSACTIONS. You will submit a transaction to us only if it is made or approved by the Cardholder who is issued the Card used for the transaction.  The burden of verifying the identity of the Cardholder and the Cardholder’s authority to initiate a transaction rests solely with you. You must not submit directly or indirectly: (a) any transaction that you know or should know to be fraudulent or not authorized by the Cardholder; (b) any transaction that results from a transaction outside of your normal course of business; or (c) any transaction using a Card issued to you or your business owners, family members, principals, that does not represent a purchase of goods or services from you or a credit transaction related to a purchase of goods or services from you. If at any time the volume of transactions substantially exceeds or decreases from the projected per transaction or monthly volume set by us (see section 3—Processing Limits), or if at any time we suspect violations of Laws or the Rules, we may, in our sole and absolute discretion and in addition to other remedies that the we may have:  (i) refuse to process the excessive or suspect transactions; (ii) process the transactions and retain the funds received from processing until such time as the excess or suspect transactions are found to be valid or invalid and processed in accordance with the Rules; (iii) suspend processing and/or terminate this agreement; or (iv) amend the agreement to protect the interests of our Sponsor Bank or ourselves.
13. RECURRING TRANSACTIONS. You must obtain the Cardholder’s prior written consent for recurring transactions, including a description of the product and the frequency and duration of the recurring charge, and notify the Cardholder that he or she may cancel recurring charges at any time. You must retain evidence of such written consent for 24 months from the date you submit the last recurring charge. You will honor any Cardholder cancellation or recurring charges, and if this agreement is terminated for any reason, you will, at your own cost, advise all Cardholders to whom you submit recurring charges that you can no longer accept the Card for amounts owed.
14. ACH TRANSACTIONS. To enable you to make and accept ACH payments (if applicable), you authorize us to originate credit or debit records for the purpose of a funds transfer (“Entries”) into the ACH network. We will use reasonable efforts to originate Entries on your behalf in accordance with this agreement. You must only submit Entries for bona fide transactions with your customers made in the ordinary course of business in accordance with this agreement, the Rules, and Laws. You shall obtain and maintain appropriate authorizations in accordance with the Rules from each of your customers for each ACH transaction. All disputes between you and any of your customers relating to any ACH transaction must be resolved between you and that customer. If Payabli or our Processor receives any notice of an ACH dispute or NACHA inquiry, we or our Processor will forward such notice directly to you. Payabli bears no financial responsibility for any disputed transaction. You must maintain an unauthorized return rate, as described in the Rules, below 0.5% of originating debits.
15. DISPUTES. Payabli will not, and has no obligation to, confirm the validity of the recipient or the underlying transaction pursuant to which funds are transferred. We assume no liability for any unauthorized transfer request and the attendant transfer of funds, unless and until we receive appropriate and timely notice by you of the unauthorized transfer requests. You must promptly and consistently inspect your transaction history and immediately report any errors.
16. INQUIRIES AND CHARGEBACKS. We and our Processor will handle Card Brand inquiries about your Card transactions in addition to disputes between you and a customer involving Card payment transactions. Based on customer disputes we may reverse Card transactions (“chargebacks”), and we will offset the value of such chargebacks from monies owed to you. You must not reenter or reprocess any Card transaction that has been charged back, but instead allow the chargeback process to proceed to its conclusion as described in the Rules. If you disagree with a chargeback, you may request a chargeback reversal within the applicable Card Brand’s timeline. If at any time this agreement is in effect, if you have a monthly ratio of chargebacks to transactions that we, in our sole and absolute discretion, deem excessive, then we may deem it to be a breach of this agreement that may result in termination or suspension of the Services or creation or maintenance of a reserve as set forth below. We may revoke or reverse any credit given to you where: (a) the Card transaction was not made in compliance with this agreement and the Rules, Laws, and Policies; (b) the Cardholder disputes liability to us for any reason, including but not limited to those chargeback rights enumerated in the Rules; (c) the Card transaction was not directly between you and the Cardholder; or (d) a deposit to you was made erroneously.
17. REFUND CREDITS. You will not submit a credit relating to any Card transaction that was not originally submitted to us, nor will you submit a credit that exceeds the amount of the original Card transaction.
18. CONFIDENTIALITY. You must retain in strictest confidence all information relating to our business and safeguard such information using the same degree of care, but no less than a reasonable amount of care, that you use to protect your own confidential information.
19. DATA SECURITY. You must secure all systems and media containing account, Cardholder, or transaction information (physical or electronic) (“Data”). Any Data on such systems and media that are no longer in service must be rendered unreadable. If you store Data in a database, you must follow Card Brand guidelines on securing such data. You may not retain or store magnetic stripe or CVV2, CVC2, or CID data after authorization. You shall maintain industry “best practices” regarding continuity procedures and systems to ensure security of Data in the event of a disruption, disaster, or failure of your respective data storage system and/or facility. You agree to display your consumer privacy policy on your website as well as your security method for transmission of Data.
20. FEES. Fees for the Services are set out in a fee schedule provided to you by us. In certain instances, Payabli may charge additional fees as follows:

1. DEPOSIT OF FUNDS TO MERCHANT POOL ACCOUNT. Sponsor Bank will deposit to the non-interest- bearing pooled account titled in the name of Sponsor Bank for the benefit of all Processor’s merchants (“Merchant Pool Account”) all amounts of Card and ACH transactions complying with the terms of this agreement and the Rules. We will direct our Processor to move funds owed to you from the Merchant Pool Account to an account you designate with us (“Designated Account”).
2. ELECTRONIC FUNDS TRANSFER AGREEMENT. You authorize Payabli to initiate, process, transmit, and settle through Sponsor Bank ACH debits or credits to your Designated Account. Your authorization will remain in effect after termination of this agreement and until Payabli has received written notice terminating this authorization and all your obligations to Payabli have been paid in full. You irrevocably authorize us to immediately debit the Designated Account for the amounts of any chargebacks, ACH returns, fines, losses, and costs we may incur because of your use of the Services. You may change the Designated Account, but no more than once every 90 days, and must promptly notify us of any changes.
3. RESERVE ACCOUNT. Payabli may, in its reasonable discretion, direct its Processor to hold some of your transaction proceeds in the Processor FBO account if it believes there is (a) a risk of potential chargebacks, returns, or any other risk in your continued use of the Services, or (b) to ensure current or future payments owed to Payabli. We will provide you with notice of and the terms of the reserve. Payabli may change the terms of the reserve at any time by providing you with notice of the new terms. Payabli has the right to use your funds in the Merchant Pool Account or funds otherwise owed to you to establish, increase, or maintain funds in reserve. We may hold a reserve as long as we deem necessary to mitigate risks associated with your transactions. You understand and agree that if you are required to establish a reserve, you have an obligation under this agreement to maintain at all times the balance in the reserve set by Payabli. Payabli may, without notice, direct Processor to apply funds designated as reserves against any outstanding amounts owed to us including, without limitation, rights of set-off and recoupment. You agree that you are liable for all obligations associated with your use of the Services even after the release of any reserve. Payabli reserves the right to direct Processor to hold your reserve for up to 270 days following termination of your use of the Services.
4. ADJUSTMENTS. All transactions and deposits are subject to our audit and final verification and may be adjusted for inaccuracies. All credits provided to you are provisional and subject to chargebacks and adjustments in accordance with the Rules, whether or not a transaction is charged back by the Card issuer.
5. TAXES & IRS REPORTING. To comply with IRS 1099-K reporting requirements, we may be required to file a form 1099-K with the U.S. Internal Revenue Service (IRS). We may suspend your ability to process transactions or place all transaction proceeds in reserve if you do not supply your legal name, SSN or EIN that matches what the IRS has on file, if your information cannot be verified, or if you fail to respond to a request from us to verify the information.
6. YOUR REPRESENTATIONS AND WARRANTIES. You represent and warrant to us: (a) that all information you submit to us relating to your application to use and continued use of the Services is correct, complete, and fully describes and details the nature, type, and scope of the business in which you are engaged; (b) that you are at least 18 years of age; (c) that, if an individual account, you are a sole proprietorship validly existing in the United States or its territories, and if an entity, that the entity was validly formed, registered and is in good standing in at least one of the fifty United States or its territories; (d) that you have never been placed on the Mastercard MATCH system or the Combined Terminated Merchant File, and if so, you have disclosed this to us; and (e) that all transactions are bona fide and no transaction involves the use of a Card for any purpose other than the purchase of goods or services from you and does not involve a Cardholder obtaining cash from you unless allowed by the Rules and agreed to in writing with us.
7. INDEMNIFICATION. You agree to indemnify, defend, and hold us harmless for and from any and all loss, cost, expense, claim, damage, and liability (including attorneys’ fees and costs, and collections costs) paid or incurred by us and arising from, caused by, or attributable to, any of the following: (a) any of your acts or omissions with respect to your use of the Services; (b) any Card transaction processed under this agreement, (c) any breach by you of this agreement; (d) willful misconduct, fraud, intentional tort or negligence by you or that of your employees, agents or representatives; (e) action by us exercising any right we have under this agreement, the Rules, Laws or Policies.
8. PAYABLI’S LIABILITY. Any liability we have to you under this agreement, whatever the basis of the liability, will not exceed in the aggregate the amount of $5,000. In no event will we be liable for indirect, special, or consequential damages.
9. DISCLAIMER OF WARRANTIES. The Services are provided “AS IS” and “AS AVAILABLE.” We make no warranty, express or implied, regarding the Services, and nothing contained in this agreement will constitute such a warranty. To the extent allowed by Law, we disclaim all implied warranties and conditions, express, implied, or statutory, including without limitation those of merchantability and fitness for a particular purpose, and the implied warranties of title and/or non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. Each party acknowledges that it has not entered into this agreement in reliance upon any warranty or representation except those specifically set forth herein.
10. SECURITY INTEREST & BANKRUPTCY. This agreement will constitute a security agreement under the Uniform Commercial Code wherein you grant to us a security interest in and lien upon: (a) all funds representing amounts owing you under this agreement at any time in the Merchant Pool Account, regardless of the source of such funds; (b) all funds at any time in reserve, regardless of the source of such funds; (c) present and future Card transactions; (d) any amount which may be due to you under this agreement, including, without limitation all rights to receive any payments or credits under this agreement; and (e) upon our request, any other security to secure your obligations under this agreement (collectively, the “Secured Assets“). You agree to execute financing statements or other documents to evidence this security interest. These security interests and liens will secure all of your obligations under this agreement and any other agreements now existing or later entered into between you and us and we will have all rights afforded under the Uniform Commercial Code, any other applicable law, and in equity. We may exercise this security interest without notice or demand by making an immediate withdrawal or freezing of your Secured Assets. You represent and warrant that no other person or entity has a security interest in the Secured Assets and you agree to obtain from us written consent prior to granting a security interest of any kind in the Secured Assets to a third party. You agree that this is a contract of recoupment and as such, we are not required to file a motion for relief from a bankruptcy action automatic stay to realize on any of the Secured Assets. Nevertheless, you agree not to contest or object to any motion for relief from the automatic stay filed by us.  Payabli, Sponsor Bank and Processor or you may terminate contract at any time if Processor, Payabli or you becomes insolvent.
11. GOVERNING LAW; JURISDICTION; VENUE.  Your offer to enter into this agreement is made in Dade County, Florida; this agreement shall be performed by you in Dade County, Florida and governed by Florida law, excluding its conflict of laws rules.  You agree to bring any claim or action relating to the agreement in binding arbitration as set forth below.  Any matters not otherwise subject to arbitration (such as, by way of example only, injunctive relief, action to recover any monetary losses or damages from your unpaid obligations under the agreement, or claims to enforce an arbitration award), shall be brought in the state or federal courts located in Dade County, Florida.  You and we irrevocably and unconditionally submit to the jurisdiction of such courts with respect to any such action.  If we are required to resolve a dispute with you that requires any action under this provision, you hereby agree and consent to receive service of process by certified mail.
12. WAIVER OF JURY TRIAL. You and we waive any right to trial by jury in any action concerning any rights or disputes under this agreement.
13. ARBITRATION. NOTE: Please read this section carefully as it affects your rights and the resolution of disputes.Any dispute or claim arising out of, relating to, or in connection with this agreement or the relationships which result from this agreement shall be resolved by binding arbitration, rather than in court. Arbitration does not proceed before a jury and may involve more limited discovery than a court proceeding. Any arbitration under this agreement will only be on an individual basis. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not permitted.The arbitrator’s award or decision will not affect issues or claims involved in any proceeding between us and any person or entity who is not a party to the arbitration. The arbitrator may award monetary, declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. The arbitrator’s award, if any, will not apply to any person or entity that is not a party to the arbitration. However, nothing in this section or the agreement shall preclude any party from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief on your behalf.Further, notwithstanding the foregoing, nothing in this section or this agreement prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this section. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply (if no such rules are in effect, JAMS default arbitration rules shall apply). For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply (if no such rules are in effect, JAMS default arbitration rules shall apply). Unless the arbitrator(s) determine that justice or fairness require otherwise: (i) any arbitration will proceed in Dade County, Florida, (although, for your convenience, any party or its counsel may participate telephonically); and (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties’ desire to keep proceedings cost-effective and efficient. Any decision rendered in any arbitration proceeding shall be final and binding on each of the parties to the arbitration and judgment may be entered thereon in any court of competent jurisdiction. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable law. If the total damage claims in an arbitration are $10,000 or less, not including your attorney fees (“Small Arbitration Claim“), the arbitrator may, if you prevail, award you reasonable attorney fees, expert fees and costs (separate from Arbitration Costs as defined below), but may not grant us our attorney fees, expert fees or costs (separate from Arbitration Costs) unless the arbitrator determines that your claim was frivolous or brought in bad faith. In a Small Arbitration Claim case, we will pay all arbitration filing, administrative and arbitrator costs (together, “Arbitration Costs“). You must submit any request for payment of Arbitration Costs to JAMS at the same time the Merchant submits its Demand for Arbitration. However, if you want us to advance the Arbitration Costs for a Small Arbitration Claim before filing, we will do so at your written request which must be sent to us at the address at the beginning of this agreement. If your total damage claims in an arbitration exceed $10,000, not including your attorney fees (“Large Arbitration Claim“), the arbitrator may award the prevailing party its reasonable attorneys’ fees and costs, or it may apportion attorneys’ fees and costs between you and us (such fees and costs being separate from Arbitration Costs). In a Large Arbitration Claim case, if you are able to demonstrate that the Arbitration Costs will be prohibitive as compared to the costs of litigation, we will pay as much of the Arbitration Costs as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. You hereby agree that claims applicable to American Express may be resolved through arbitration as further described in the American Express Merchant Requirements Guide (the “American Express Guide”). A court, not the arbitrator, will decide any questions regarding the validity, scope and/or enforceability of this section.
14. CLASS ACTION WAIVER. NOTE: Please read this section carefully as it affects your rights and the resolution of disputes.You acknowledge and agree that all disputes arising out of or related to this agreement shall be resolved on an individual basis without resort to any form of class action and shall not be consolidated with the claims of any other parties.
15. AGENCY RELATIONSHIP. You authorize our Processor with respect to the Services to act as your agent for the limited purposes of holding, receiving, and disbursing funds on your behalf. Your authorization permits Payabli to direct Processor to generate an electronic funds transfer to process each payment transaction. This authorization will continue until this agreement is terminated. You agree that Payabli’s receipt of transaction proceeds satisfies your customers’ obligations to you.
16. FORCE MAJEURE. No party will be liable to the other party for any failure or delay in its performance of this agreement if such failure or delay arises out of causes beyond the control and without the fault or negligence of such party.
17. SEVERABILITY AND WAIVER. If any sentence, right, duty, or requirement of this agreement is held invalid, illegal, void, or unenforceable by reason of any judicial decision, all other provisions of this agreement shall nevertheless remain in full force and effect. No course of dealing, delay, or failure to enforce any provision or exercise any right under this agreement by us shall be construed as a waiver or estoppel of such provision or right, nor shall it amend this agreement or affect the validity of this agreement or curtail our ability to enforce such provision or exercise such right in the future. All waivers must be in writing and signed by us.
18. RIGHTS AND REMEDIES CUMULATIVE. The rights conferred upon us in this agreement are not intended to be exclusive of each other or of any other rights and remedies we have under this agreement, at law, or in equity. Rather, each right we have at law or in equity will be cumulative and concurrent and in addition to every other right.
19. ENTIRE AGREEMENT. This agreement, including, Policies, the Rules, and any amendment or supplement to this agreement or other referenced agreements, all of which are incorporated into this agreement, constitutes the entire agreement between the parties, and all prior or other agreements or representations, written or oral, are superseded by this agreement.
20. CONSTRUCTION. The headings used in this agreement are inserted for convenience only and will not affect the interpretation of any provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.
21. ASSIGNABILITY. This agreement may be assigned by us, but may not be assigned by you without our prior written consent.
22. AMENDMENTS. You are bound by this agreement as it may be amended or revised at any time upon notice to you. It is your sole responsibility to review and maintain familiarity with the agreement, the Rules, Laws and Policies. If you do not agree to the any amendments and do not wish to be bound the terms and conditions thereto, you shall provide written notice to us and your right to use the Services will be terminated.
23. CONSENT TO DO BUSINESS ELECTRONICALLY, ELECTRONIC SIGNATURE, COMMUNICATION, AND NOTICES. You consent to do business electronically, which means that you agree that all Payabli agreements and Policies, including amendments thereto and documents referenced therein, as well as any notices, instructions, or any other communications regarding transactions and your agreements with Payabli (all of which are referred to herein as the “Communications”) may be presented, delivered, stored, retrieved, and transmitted electronically. You must keep us informed of any change in your electronic or mailing address or other contact information.  Your electronic signature, including, without limitation clicking “Agree and Continue” or an action of similar meaning or significance, shall be the legal equivalent of your manual signature. You may withdraw your consent to doing business under the Payabli agreements and policies electronically at any time by contacting us and withdrawing your consent to transact business electronically. If you do so, this agreement will be terminated. However, any Communications or transactions between us before your withdrawal of such consent, will be valid and binding.
24. NOTICES. Each notice required by the agreement will be in writing (hard copy or electronic), except as otherwise stated in the agreement, and will be effective when delivered, (a) to us at 25 SE 2nd Ave, Suite 550, #288, Miami, Florida 33131, attention Payabli Legal, and (b) to you at your email address provided to us by you. Where applicable, you may deliver notice to us by electronic mail as long as you receive written confirmation of our receipt of the email (usually by a return email from us).
25. TERMINATION. We, Sponsor Bank, or Processor may terminate the agreement at our sole and absolute discretion, effective immediately, upon written, electronic, or oral notice to you.

AMERICAN EXPRESS TERMS

Important Note: The following sections apply only if you accept American Express Cards. If there is a conflict between any of the following sections and any other section of this agreement as it applies to American Express Cards, the following sections will govern.  For clarity, Sponsor Bank does not sponsor American Express transactions.

1. AMERICAN EXPRESS COMPLIANCE. You authorize Payabli and/or its Processor and affiliates to submit American Express Transactions to, and receive settlement on such Transactions from, American Express on your behalf. You agree to comply with all applicable Laws, Rules and other regulations, including the American Express Merchant Operating Guide requirements, which are incorporated into this agreement by reference as if they were fully set forth in the agreement. The American Express Merchant Operating Guide may be viewed at: www.americanexpress.com/merchantopguide. You shall abide by and fully comply with DSR and PCI DSS. A copy of the American Express Data Security Requirements (“DSR”) can be obtained online at www.americanexpress.com/dsr. You acknowledge and agree to: (i) ensure data quality and that Transaction Data and customer information are processed promptly, accurately, and completely, and in compliance with the American Express Technical Specifications; (ii) report all instances of a Data Incident immediately to Payabli after discovery of an incident;, and (iii) be aware of and adhere to privacy and data protection Laws; and (iv) provide specific and adequate disclosures to Card-members regarding collection, use, and processing of personal data. You certify that all indebtedness arising from Transactions will be for bona fide sales of goods and services (or both) at your business locations and free of liens, claims, and encumbrances other than ordinary sales taxes.
2. HIGH CHARGE VOLUME SPONSORED MERCHANTS. In the event that your Estimated Annual Charge Volume becomes $1,000,000 USD or greater, you will become a direct Card-accepting merchant under the standard American Express acceptance program and cease to be a sponsored merchant under Payabli. As a direct Card-accepting merchant, you will be bound by the then-current American Express Card acceptance agreement and American Express will set pricing and other fees payable by you for card acceptance.
3. PROCESSING RESTRICTIONS. You are prohibited from processing Transactions or receiving payments on behalf of, or (unless required by law) re-directing payments to any other party. Provided, however, that you may sell and assign future American Express-related Transaction receivables to Payabli, its affiliated entities and/or any other cash advance funding source that partners with Payabli or its affiliated entities, without consent of American Express. Notwithstanding the foregoing, Payabli prohibits you from selling or assigning future American Express-related Transaction receivables to any third party other than its Processor.
4. THIRD PARTY BENEFICIARY RIGHTS. You understand and covenant that you are not a third-party beneficiary under Payabli’s or its Processor’s agreement with American Express, including all schedules and exhibits, or the American Express Rules. You acknowledge and agree that American Express is a third-party beneficiary under this agreement between you and Payabli. This means American Express has the rights, but not the obligation, to enforce the terms of this agreement against you.
5. AMERICAN EXPRESS LIABILITY. You acknowledge and agree that in no event shall American Express, its affiliates, agents, successors, or assigns be liable to you for any damages, losses, or costs incurred, including incidental, indirect, speculative, consequential, special, punitive, or exemplary damages of any kind (whether based on contract, tort, including negligence, strict liability, fraud, or otherwise, or statutes, regulations, or any other theory), arising out of or in connection with the agreement.
6. MERCHANT WEBSITE DISPLAY REQUIREMENTS. You will adhere to the following website information display guidelines in the event you have a website and/or operate an e-commerce business (“Merchant Website”). The Merchant Website must display the following: (a) An accurate description of the goods/services offered, including the currency type for the Transaction. Note: Transaction currency must be in U.S. Dollars; (b) your physical address in the U.S.; (c) an email address or telephone number for customer service disputes; (d) return/refund policy; (e) a description of your delivery policy (e.g., no overnight delivery); (f) a description of your security practices (e.g., information highlighting security practices you use to secure Transactions on your systems, including Transactions conducted on the Internet); (g) a statement of known export restrictions, tariffs, and any other regulations, (h) a privacy statement regarding the type of personal information collected and how the information is used. Additionally, you must provide to customers the option to decline being included in marketing campaigns or having their personal information included on lists sold to third parties.
7. COMMUNICATION. (a). You agree that Payabli may disclose to American Express information from the agreement and otherwise regarding you and your Transactions, and that American Express may use such information: (i) to perform its responsibilities in connection with American Express Card Acceptance; (ii) to promote the American Express Network; (iii) to perform analytics and create reports; (iv) for any other lawful business purposes including commercial marketing communications purposes within the parameter of the Program Agreement, (v) for important transactional or relationship communication from American Express, and (vi) to screen and/or monitor you in connection with American Express marketing and administrative purposes; (b) you agree you may receive messages from American Express, including important information about American Express products, services, and resources available to its business. These messages may be sent to your mailing address, phone numbers, email addresses or fax numbers. You may be contacted at your wireless telephone number and the communications sent may include autodialed short message service (SMS or “text”) messages or automated or prerecorded calls. You may opt-out of receiving future commercial marketing communications from American Express by contacting Payabli; however, you may continue to receive marketing communications while American Express updates its records to reflect this choice. Opting out of commercial marketing communications will not preclude you from receiving important transactional or relationship messages from American Express.
8. TERMINATION. (a) Payabli has the right to terminate your participation in American Express Card Acceptance immediately upon written notice to you: (i) if you breach any of the provisions of this agreement applicable to American Express Card Acceptance, including, but not limited to, the American Express Merchant Operating Guide; or (ii) if Payabli has cause to believe you are engaged in illegal or fraudulent activity; or (iii) upon American Express’s request; (b) You may opt out of accepting American Express at any time by written request to Payabli without directly or indirectly affecting your rights to accept other Cards; (c) in the event your participation in American Express Card Acceptance is ended for any reason, you must immediately cease all use of and remove all American Express branding and marks from your business location(s), website(s) and anywhere else they are displayed.
9. REFUND POLICY. Your refund policies for American Express-related Transactions must be at least as favorable as your refund policy for purchase with any other Card, and the refund policy must be disclosed to cardholders at the time of purchase and in compliance with applicable Law. You may not bill or attempt to collect from any cardholder for any American Express-related Transaction unless: (a) a chargeback has been exercised, (b) you have fully paid for such chargeback, and (c) you otherwise have the right to do so.