Payments – Terms & Conditions

1. Acceptance of these Payment Terms.

(a) Please read the binding arbitration clause and class action waiver in clause 22. It affects how disputes are resolved.

(b) In these Payment Terms, a reference to ‘EzyCollect,’ ‘we’ or ‘us’ is to EzyCollect USA Inc. and each of its related entities, as applicable.  Capitalized terms are defined either in (i) Clause 24 or (ii) the context in which they first appear.

(c) You accept these Payment Service Provider Terms and Conditions (Payment Terms), on behalf of yourself and any related business, by (i) using or registering for the Payment Services, (ii) clicking a box indicating acceptance of these Payment Terms, (iii) consenting to our order form that references these Terms (a Sales Order), (iv) paying us, (v) integrating your accounting system with our Payment Services, or (vi) creating an account for the Payment Services (an Account). If the individual accepting these Payment Terms is accepting on behalf of a company or other legal entity, such individual represents that they are at least 18 years of age and have the authority to bind such entity to these Payment Terms, in which case the terms “you” and “your” shall refer to such entity. Engaging in any of the activities described in this section 1(b) signifies that you have read, understood and agree to be bound by these Payment Terms. If you do not agree with theses Payment Terms, you must cease use of the Payment Services immediately.

(d) You may not use the Payment Services and may not accept these Payment Terms if: 

(i) the individual accepting these Payment Terms does not have authority; (ii) you are not of legal age to form a binding contract with us; (iii) you are a person barred from receiving the Payment Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Payment Services; (iv) you are a direct competitor of ezyCollect or any of its affiliates or related entities (Affiliate); or (v) you intend or may use the Payment Services for family, household or personal purposes.

(e) By engaging us, you acknowledge and understand that we (i) are not a debt collector and (ii) do not provide you with any tax, legal, accounting or other specialist, professional or technical advice. For further information, please read these Payment Terms carefully. 

(f) We reserve the right to review and change any of these Payment Terms by updating this page at our sole discretion. When we update the Payment Terms, we will use reasonable endeavors to provide you with notice of the same via your contact information then on file with us. Any changes to these Payment Terms take immediate effect from the date of their publication or such later date as may be specified in the updated Payment Terms. If you choose not to accept any changes to the Payment Terms, your sole recourse will be to stop using the Payment Services. Before you continue, we recommend you keep a copy of the Payment Terms for your records.

2. Payment Services

2.1 Scope

(a) Pursuant to these Payment Terms, you agree to retain and appoint EzyCollect as your Payment Service Provider (PSP) for the acceptance and processing of recurring, ongoing and/or real time payments owed to you by a Customer of yours where the payment is unrelated to family, household or personal purposes (Payment Services) .

(b) We grant you a non-exclusive, revocable, non-transferable, non-sublicensable right to electronically access and use the Payment Services solely for the purpose of accepting and receiving payments and managing the funds we may receive on your behalf from Customers.  If you have access to our integrated payment portal via a separate license described in our General Terms and Conditions (General Terms), electronic access to the Payment Services will be provided via an EzyCollect portal; otherwise, access will be provided via a direct integration with your compatible accounting software. 

(c) You must promptly notify EzyCollect in writing if you appoint another party to provide any service that is similar or identical to the Payment Services.

2.2 Payment Partners

(a) EzyCollect  operates with approval from its then-current third-party payment processor(s) (each, a Payment Partner) to utilize their platforms and payment processing services.

(b) We facilitate Customer Payments, including recurring automatic payments, from Financial Institution, credit and debit card accounts, and real time and e-Commerce card-based payments, through each of our Payment Partners’ respective Payment Gateways.

(c) By agreeing to these Payment Terms you agree to be bound by the relevant

Payment Partner’s Services Agreement, as modified from time to time.[MK1] 

2.3 Our obligations

(a) We will accept and process recurring automatic payments and any fees and interest owed to you by your Customers and directed to us on your behalf.

(b) We will accept and process real time payments directed to us on your behalf as initiated by your Customers.

(c) Automatic payments may only be accepted from (i) USA-based Financial Institution accounts or (ii) credit cards or debit cards issued in the USA by a USA-based Financial Institution.

(d) Customer Payments made by automatic payment or credit or debit card will be held in an account operated by our relevant Payment Partner until the funds are Cleared Funds.

(e) Customer Payments made via credit and debit cards through your own merchant facility will be settled directly to your assigned settlement account as per your merchant agreement with your financial institution.

(f) Subject to clause 2.3(g) below, we will credit funds processed through our automatic payment facility or EzyCollect-issued merchant account, following clearance in accordance with clauses 2.3(d) and 2.3(e), to your designated Financial Institution account, less fees and any other amounts you owe us.

(g) We may withhold Customer Payments: (i) if any holding deposit, security, retainer or minimum account balance has been agreed between us, to the extent necessary to maintain such deposit, security, retainer or minimum balance; (ii) if we, for any reason whatsoever, suspect that you or your Customer have acted in a fraudulent, illegal, unlawful, unconscionable or improper manner in relation to Customer Payments or their collection or processing; or (iii) if we have been instructed to do so by a regulatory body.

3. Automatic Payment Authorization

3.1 Definition

(a) Each authorization from a Customer to debit the Customer’s Financial Institution account via the Automated Clearing House (ACH) system (an automatic payment authorization or “APA”), whether in hard copy or electronic format, shall remain our property at all times.  As used in these Payment Terms, the term “APA” includes electronic automatic payment authorizations (eAPAs), such that all terms and conditions which apply to APAs apply equally to eAPAs.

(b) No other automatic payment service provider or Financial Institution may conduct debit transactions from Customer accounts as a result of the Customer completing a signed APA using our branding unless otherwise authorised by us in writing.

(c) Any debit transaction conducted by a company or institution on your behalf without our authorization shall constitute a material breach of these Payment Terms and shall not be recognized by us as a valid transaction.

(d) You must store all APAs, either in hard copy or electronic format, in a safe and secure place, for at least seven (7) years from the date of the last transaction.

(e) Each APA is a separate, confidential agreement we have with the applicable Customer.

(f) If a Customer gives us seven days written notice of termination, we will terminate their APA within such notice period.

(g) You must not use APAs for: (i) Customers with whom you do not have an ongoing relationship; or (ii) payments made for family, household or personal purposes.

3.2 Client APAs and eAPAs

Nothing in these Payment Terms prevents you from continuing to use existing automatic payment authorizations or electronic automatic payment authorizations (Client APAs) which contain your branding to conduct debit transactions with your Customers.  You are solely liable for any loss or liability you incur as a result of your use of Client APAs.

4. Sub-merchants

(a) This clause 4 applies to our standard merchant facilities using EzyCollect as a sub-merchant identifier (Merchant Facility) unless specified otherwise.

(b) You will adhere to all terms and conditions which apply to the usage of an

EzyCollect Merchant Facility for the acceptance and processing of card-based transactions in a recurring or real time environment.

(c) You will accept all valid cards and process all transactions in accordance with all laws, any obligations in these Payment Terms and any direction of EzyCollect in carrying out activities related to the Merchant Facility.

(d) All transactions are to be processed in US dollars.

(e) You must not process or encourage transactions through the Merchant Facility that relate to, or are in connection with, the sale of goods or services that are in contravention with applicable Law.

(f) We will not be responsible or liable for any delay that might occur in the processing of payments or any lost transactions that might occur where the Merchant Facility is not available for any reason.

(g) If, in the reasonable opinion of EzyCollect, you have excessive Chargebacks and/or fraudulent transactions, you must take immediate action to rectify the situation. Failure to resolve the cause of the problem may result in a suspension or cancellation of our services to you.

(h) You are required to obtain and hold cardholder authorisation for all recurring transactions and ensure the designated card is within current validity at all times.

(i) You are at all times bound by and must strictly comply with all applicable local, state, national and international laws, regulations and enforcement actions (Laws) that apply to you, including, without prejudice to the generality of the foregoing, those Laws concerning bribery, money laundering, terrorism, corrupt practices or which in any manner prohibit the giving of anything of value to any official, agent or employee of any government, political party or public international organisation, candidate for public office, or to any officer, director, employee or representative of any other organisation, such as AML/CTF Laws and the United States Foreign Corrupt Practices Act.

(j) You must not take, and you must ensure that Your Customers do not take, any action that would be illegal under any Law or give rise to penalties if taken by us. You expressly warrant and covenant to us that, in connection with your use of the Payment Services, the offering of any goods, assets or Payment Services, and the initiation of any transaction, you and your employees, officers, directors, affiliates and Customers have not, and will not, directly or indirectly, pay, offer, give, promise to pay or give or authorize the payment or gift of any portion of a transaction or any other financial advantage or other thing of value to: (i) an official or employee of any government or public international organisation or any family member of such official or employee; (ii) an official or employee of any department, agency or instrumentality of said government or organisation including any government-owned or government-controlled commercial enterprise, or any family member of such official or employee; (iii) an official or employee of any Customer, purchaser of goods, assets or Payment Services or other commercial party doing business with you, your affiliates or your Customers , or any family member of such official or employee; (iv) a candidate for political office or family member of the same; (v) a political party or party official or family member of the same; (vi) any Person acting in an official capacity for or on behalf of any such government, department, agency, instrumentality, political party, or commercial party doing business with you, your affiliate or your Customer; or (vii) any other Person at the suggestion, request or direction or for the benefit of any of the Persons described above.

(k) You may not use the Merchant Facility for: (i) impersonating any Person or falsely claiming an affiliation with any Person; (ii) accepting payments for goods or services provided by someone other than you; (iii) providing yourself or others with a cash advance from a credit card; (iv) any illegal purpose, or violating any Law; (v) defaming, harassing, abusing, threatening, or defrauding others; (vi) competing with EzyCollect or EzyCollect’s business partners; (vii) abusing the payment card system or violating the operating rules of the Merchant Facility as reasonably determined by EzyCollect; (viii) transferring funds between Financial Institution accounts held in the same name; or (ix) accepting payments for goods and services you may provide outside the industries that identified when applying for the facility.

(l) If you are conducting eCommerce transactions over the internet: (i) you are responsible for all goods and services offered via the internet, including through any website, application or social media account, and all acts and omissions in connection with any website, application or social media account; (ii) the URL of your website(s), and the name/account name of each app and social media account, must be substantially similar to your trading name and designed in such a way that a reasonable cardholder is able to identify it as your website, app or social media account; (iii) you must not display or return the cardholder’s number to the cardholder either online or on the transaction receipt; (iv) you must not substantially change your goods or services being sold on your website(s), app(s) or social media account(s), or other material aspects of your website(s), app(s) or social media account(s), from the time Merchant Facilities were provided by us; (v) you must ensure that all information on the website(s), app(s) and social media account(s) is true, accurate, current and complete; and (vi) you will display the following on your applicable website(s), app(s) and social media account(s): (A) contact information including trading name, company tax ID, trading address, telephone number, fax number, email address and your country of domicile; (B) a complete description of all goods and services you offer through such media; (C) a clear explanation of shipping practices and delivery policy; (D) transaction currency; (E) total cost of goods or services offered, including shipping/handling charges and taxes; (F) Customer service policies, including usual delivery timeframes and processes if you cannot fill the order for any reason; (G) export restrictions, if known; (H) refund/return policy; (I) privacy policy; and (J) all other disclosures and disclaimers required by Law.

(m) You are responsible for: (i) ensuring that the connection between each of your website(s), app(s) and social media account(s) and us is operational. We do not warrant that the provision of the Payment Services will be continuous, uninterrupted or without errors; and (ii) ensuring that each of your website(s), app(s) or social media account(s) is secure and that Cardholder information is encrypted during the exchange of Cardholder information between your website and us.

5. Account Set Up

(a) To access the Payment Services, you are required to register for an account with ezyCollect the Account). You may register for an Account by contacting us directly.

(b) As part of the registration process or as part of your continued use of the Payment Services, you will be required to provide business or personal information about yourself (such as identification, contact details, payment details, Financial Institution details, and other personal information such as qualifications, skills, and previous employment details).

(c) You will (i) ensure that any information you give to us will be accurate, correct and up to date and (ii) promptly update such information.

(d) By supplying us with your address, email address and phone number, you agree to receive: (i) regular emails, newsletters, telephone calls or SMS updates from us to keep you informed about our activities; and (ii) similar communications from your Customers, where the applicable Payment Service functionality permits or requires communications or where you have indicated your consent to be contacted by such parties within the Payment Service. If you do not wish to receive updates from us, you may contact us at [insert email address for USA]privacyofficer@ezycollect.io.  If you lose or plan to give up the telephone number(s) or email accounts that are linked to your Account, you agree to unsubscribe from future communications to such telephone numbers and email accounts, and agree to update all Account data in a timely manner.  You represent and warrant that you own and control all Account data, including the email account(s) and the telephone number(s). 

(e) EzyCollect may and will hold and use any information provided in relation to the Payment Services in accordance with the Privacy Policy.

6. Identify Verification

(a) Due to the nature of the Payment Services, we may be required to verify your identity to ensure that you are not using the Payment Services in an illegal or fraudulent manner.

(b) Where we advise you in writing that we require further verification of your identity, you will comply with this request within seven (7) days of receipt of same.

(c) You warrant that any information that you provide pursuant to this clause will be true and correct to the best of your knowledge and belief.  Your failure to comply with this clause will warrant an immediate termination of the Payment Services.

7. Fees and Payment

7.1 Fees

(a) In exchange for us providing Payment Services, you will timely pay to us our then-current fees and other amounts due under these Payment Terms as provided in the Fee Schedule (Fees), as updated from time to time upon 30 days’ written notice.

(b) You may request for us to accept and process transaction fees from the Customer (Transaction Fees), in addition to the requested payment amount. You agree that if Transaction Fees passed to the Customer are not paid by the Customer for any reason, our transaction fees will remain payable by you.

(c) You authorize us to deduct from the designated billing account any fees or other monies owing from funds collected by us.

(d) You will: (i) ensure that each Customer executes an APA or eAPA in a form approved by us; and (ii) reimburse us promptly for any funds which have been paid to you but to which you are not entitled under these Payment Terms.

(e) In the event you elect to pay a Fee by way of automatic payment and/or credit card and there is a chargeback by your debit or credit provider, or any invoice is more than 30 days past the due date, we may suspend or terminate the Payment Services immediately. You will be charged our then-current administration fee, plus any Taxes applicable to that fee (the Administration Fee), plus interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, on amounts which remain unpaid more than thirty (30) after the due date. Upon payment of the Administration Fee and applicable interest in accordance with the Payment Terms, we may reinstate the Payment Services to you in our discretion.

7.2 Taxes

We will: (a) advise if sales or use taxes have been included or excluded on all Fees quoted; and (b) provide you with a statement at the end of the month reconciling to the funds deposited into your designated account.

8. Refunds

(a) Where a Customer Payment has been paid via a Financial Institution account, we will not enter into any agreement that requires us to transfer funds to a Customer as a refund and are not, pursuant to these Payment Terms or otherwise, required to do so.

(b) Subject to these Payment Terms, all funds debited from a Customer’s Financial Institution account are held on your behalf in trust and will, in the ordinary course, be transferred to your designated settlement account.

(c) It is your obligation to determine the circumstances under which refunds will be made to your Customers and to perform any refunds relating to Customer Payments from Financial Institution accounts external to our Payment Services.

(d) Where a Customer Payment has been paid by credit or debit card via a merchant account issued by us, should the refund value exceed your refund limit, a refund to the Customer will only occur upon written request by you.

(e) If you provide a refund to any Customer, we: (i) will not refund any transaction Fees paid to us for the original transaction; and (ii) may charge a Fee for the processing of each refund should its cost exceed our original Fee for facilitating the transaction.

9. Chargebacks

(a) We may refuse to accept any transactions, and/or return applicable transaction funds to the applicable Customer’s account (each, a Chargeback), if in our reasonable opinion: (i) the transaction is invalid; (ii) the transaction is deemed to be not for the entity that the good or service is provided to; (iii) the transaction is fraudulent; or (iv) the cardholder claims that the transaction is invalid or disputes liability for any reason.

(b) Transactions which are invalid or which the cardholder claims are invalid or disputes for any reason, where funds have been reversed back to the cardholder, will be charged back to your account.

(c) Chargebacks may be processed against your designated account up to eighteen months after the date of the original transaction.

(d) Should a Customer Chargeback be successful, notification of the Chargeback will be made to you.

(e) We will not participate in any disputes between you and your Customer in respect to a Chargeback.

(f) Fees related to a transaction that has been charged back to the Cardholder are not refundable.

(g) We will apply a Dispute Fee, as described within the Fee Schedule, to each Chargeback and each refused or returned transaction, which will be deducted from your next settlement or debited from your designated billing account in conjunction with the Chargeback transaction.

(h) You must ensure that Chargebacks do not exceed 0.5% of your total transactions processed by us in any calendar month. Where Chargebacks exceed 0.5% of total transactions, Payment Services may be suspended immediately without notice to you. We reserve the right to not re-activate your Payment Services, or if we re-activate your Payment Services, we reserve the right to request a holding deposit for any further Chargebacks that may occur as a condition of re-activating the Payment Services.

(i) To reduce the incidence of disputes, claims, dishonours, and Chargebacks and to comply with all applicable Card Payment Scheme regulations, we may include all or part of your business/trading name in the Debit transaction description on your Customer’s account statement. You hereby consent and authorise us to establish, obtain and identify any Credit Card Merchant or automatic payment facility by name/code which includes all or part of your business/trading name.

10. Failed Payment

In the event that a Customer has a Failed Payment and contacts us, we will direct the Customer to contact you or your designated representative directly via your designated email or contact points.

11. Disputes and Dishonours

(a) In the event that we receive a disputed claim in relation to a transaction, we will request from you evidence and supporting documentation to supply to the claimant’s financial institution.

(b) Should a disputed payment claim by a Customer be successful, we will notify you of the claim and the transaction to be refunded.

(c) Upon receipt of a claim notification from a Customer’s Financial Institution, we will apply a Dispute Fee, as described in the Fee Schedule, for each notification of claim. This Dispute Fee will be deducted from your next settlement or debited from your designated billing account in conjunction with the chargeback transaction.

(d) We reserve the right: (i) to deduct the amount of any such claim or late dishonour from monies held in your linked account in the first instance; and (ii) to debit any settlement account or billing account for the amount.

(e) You agree to pay to us all monies due and owing to us pursuant to this clause within 7 days of being notified by us.

12. Representations and Warranties

You represent and warrant that: (a) you are a duly incorporated company or registered business and conduct operations as a business; (b) if you are a trustee, the trust is validly formed and you have the right of indemnity from the trust assets in respect to these Payment Terms; (c) you have the legal capacity and authority to execute our Application Form and to be bound by these Payment Terms; (d) the person who executed the Application Form is duly authorised to execute on your behalf; (e) you will obtain authorization from each Customer for EzyCollect to automatic payment the Customer’s account; and (f) you are not currently and are not likely to be declared insolvent and will endeavour to not become so during the term of these Payment Terms.

13. Indemnities and liability

13.1 Indemnity

You agree to release, indemnify and hold EzyCollect, its affiliates and vendors, and their respective officers, directors, employees and agents (collectively, the EzyCollect Indemnitees) harmless from and against any and all claims, threatened claims (including Customer claims), regulatory actions, and all liabilities, expenses, damages, actions or losses (including attorneys’ fees) suffered or incurred by us, arising in any way from or in connection with our receipt or processing of Customer Payments or the provision of Payment Services, including: (a) any failure by you to pay any Fees; (b) any failure by you to pay any other amount due under these Payment Terms; (c) any matter affecting the validity of Customer Payments, affecting the creditworthiness of a Customer and/or any misrepresentation of the identity of a Customer; (d) any violation of any representation or warranty by you, or any other breach by you of your obligations under or in connection with these Payment Terms; (e) any failure by you or a Customer to provide correct information to us; (f) any Financial Institution fees or charges incurred in respect of a Customer Payment under circumstances described in this clause; (g) any failure of a Customer Payment or any of its operations or processes due to any accident, neglect or misuse by you or a third party; (h) any failure of a Customer Payment or any of its operations or processes due to a computer failure; (i) any failure of a Customer Payment or any of its operations or processes due to incorrect, partial or inaccurate information being provided by an integrated software management program; (j) any failure of a Customer Payment or any of its operations or processes due to any viruses, security hacking or any errors in code or software; (k) any instance where we hold your funds in accordance with these Payment Terms; (l) your negligence or fraud or that of any of your employees, contractors or agents; (m) the fraudulent use, misuse or theft of an APA or eAPA or the information stored in an APA or eAPA, whether lost, stolen or otherwise; (n) any dispute arising between you and your Customer; (o) any representation, warranty or statement made by you or your employees, contractors or agents, to a Customer; (p) any misrepresentation, breach of contract or failure of consideration in relation to your dealings with a Customer; (q) any Failed Payment; (r) any use of an eAPA or Payment Gateway; (s) any claim that a payment, obligation, transaction or transfer in connection with these Payment Terms is void or voidable under any insolvency law; (t) any failure by you or your agent(s) to comply with applicable laws, including the PCI Security Standards; (u) your voluntary provision of a telephone number or email account that is not owned by you, or your failure to promptly notify us of any changes in your contact information, including telephone numbers.  Your obligation to indemnify, defend, and hold the EzyCollect Indemnitees harmless from and against any and all such threatened claims and claims extends to any and all losses, liability, costs and expenses (including reasonable attorneys’ fees) that any or all of the EzyCollect Indemnitees may incur or otherwise be subject to as a result of such claims or threatened claims.  EzyCollect Indemnitees will have the exclusive right to choose counsel, at your expense, to defend any such claims.  In the event of a claim, threatened claim or other action for which we require defense, indemnification or hold harmless rights, we will promptly give you written notice of the claim, threatened claim or other action.

13.2 No warranty

(a) If we process an automatic payment transaction, we are not warranting that: (i) the transaction is valid; (ii) the identity of the Customer is correct; or (iii) the Customer is creditworthy.

(b) You agree: (i) that we shall be entitled to utilize and transfer any funds held in any account helad or operated by us on your behalf to our own account in satisfaction of the indemnity granted in clause 11.1 above after notice to you;  and (ii) to release us in relation to any liability in respect of any such funds so applied or used.

(c)  Subject to this clause and to the maximum extent permitted by applicable law: (i)  the Payment Services are provided “AS IS” and “AS AVAILABLE”; (ii) we disclaim all warranties and guarantees, whether express or implied, by statute, trade or otherwise, including (A) the implied warranties of merchantability, fitness for a particular purpose, non-infringement, uninterrupted or error-free use or service, error correction, availability, accuracy of informational content and system integration and (B) all warranties regarding performance, quality and results; (iii) we will not be liable for any claims, causes of action, damage or expenses arising out of or in connection with the Payment Services (including as a result of not being able to use the Payment Services or the late supply of the Payment Services), whether at common law, in equity, pursuant to statute, or otherwise; (iv) all Payment Services are supplied to you on an “as is” and “as available” basis; and (v) we do not guarantee any uptime or availability of the Payment Services.

(d) To the maximum extent permitted by law: (i) our total liability to you arising out of or in connection with the Payment Services or these Payment Terms, however arising, including at law, in equity, under statute, or otherwise, is limited to our resupply of the Payment Services to you; and (ii) we will not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability, including any loss of profit, any loss of goodwill or business reputation and any other intangible loss.

14. Term and termination

14.1 Term

(a) These Payment Terms commence from the date we accept the Application Form submitted by you and remain in force for the initial term specified in the Application Form (Initial Term), along with any successive Renewal Term(s), unless terminated by either party on 60 days’ written notice to the other party, provided either: (i) prior to expiration of the Initial Term or then-current Renewal Term (each, a Term); or (ii) during any Renewal Term.

(b) These Payment Terms shall automatically renew on completion of the then-current Term for a further Term of the same duration as that which has just expired (Renewal Term), unless terminated in accordance with the provisions of clause 12.2.

14.2 Termination

(a) We may terminate these Payment Terms upon seven (7) days’ notice in writing where you fail to comply with any material obligations set out in these Payment Terms.

(b) We may terminate these Payment Terms immediately without notice if, in our reasonable opinion, you have utilized the Payment Services in any unlawful, or unconscionable manner, or are in breach of the PCI Security Standards.

(c) The Company may at any time, terminate the Terms with you if: (i) you have breached any provision of these Payment Terms or intend to breach any provision; (ii) we are required to do so by law; (iii) a partner, if any, with whom we offered the Payment Services to you has terminated its relationship with us or ceased to offer the Payment Services to you; (iv) we are transitioning to no longer providing the Payment Services in the country in which you are resident or from which you use the service; (v) our provision of the Payment Services to you is, in our opinion, no longer commercially viable; (vi) you have used the Services (A) in breach of any law, (B) in a way that is misleading or deceptive, (C) in a way which is unreasonable as we determine in our absolute discretion, (D) in a manner which can or does bring us into disrepute or could damage our reputation as we may determine in our absolute discretion; or (vii) for no reason.

14.3 Suspension

(a) We may immediately and without notice, suspend your account and refuse to process any payments or remit any payments to you if we reasonably suspect or have been advised that you have acted in an unlawful or unconscionable manner in utilizing the Payment Services, or are in breach of the PCI Security Standards.

(b) For the avoidance of doubt, we may terminate any account suspended in accordance with clause 12.3(a) and in accordance with clauses 12.1 and 12.2 above in our sole discretion, without lifting the suspension imposed in accordance with clause 12.3(a).

14.4 Survival

Clauses 11, 12.4, 13, 14, 17, 19(r), 20 through 24 and Schedule 1 shall survive termination of these Payment Terms.

15. Confidentiality

(a) Except as otherwise permitted in writing by a party disclosing Confidential Information (a Disclosing Party), a party receiving Confidential Information from or on behalf of a Disclosing party (a Receiving Party) will: (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) to protect the Confidential Information of the Disclosing Party; (ii) not use any Confidential Information of the Disclosing Party for any purpose not authorized by these Terms; and (iii) except as otherwise authorized by the Disclosing Party in writing, limit access to, and disclosure of, the Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.

(b) The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

(c) These Terms include the data processing addendum (“DPA”) attached as Schedule 1, and shall apply to the extent that you provide Personal Data (as defined in the DPA) to us, or we transfer Personal Data, as part of your use of the Payment Services.

(d) This Clause does not apply to the extent necessary to enable disclosure required by law or where the Confidential Information has entered the public domain other than as a result of a breach of these Payment Terms.

(e) Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any contractual, legal, or fiduciary obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without reference to, or reliance upon, the Confidential Information of the Disclosing Party. Each party retains all ownership, right, and title in and to its Confidential Information.

(f) Neither party may mention the other party or any information concerning these Payment Terms in any public marketing or similar format without the other party’s express written consent, which may be granted or withheld in its discretion.

16. Privacy

(a) Both you and we agree to comply with our Privacy Policy and all applicable requirements of the Privacy Legislation in performing the Payment Services.

(b) Without prejudice to the generality of clause 14(a), you represent, warrant and covenant that you have all necessary and appropriate consents and notices in place to enable lawful transfer to us of any information which you provide, or cause to be provided, to us (including any data which identifies, or is capable of identifying or relating to, an individual) for the duration and purposes of these Payment Terms so that we may lawfully use, process and transfer such information in accordance with these Payment Terms.

17. Force Majeure

Neither party shall be liable for any delay or failure to perform their obligations in a timely manner pursuant to this document if such delay is due to a Force Majeure Event.

18. Change of ownership

(a) You must provide us with sixty days’ written notice of any actual or intended Change in Control of your business.

(b) If you give us notice under clause 16(a), we may, at our election terminate these Payment Terms on thirty (30) days’ written notice.

(c) If we do not exercise our right to terminate: (i) the new owner will be required to complete an Application Form and return the executed documents with the required additional information to us no later than thirty (30) days prior to taking ownership, control or management of the business and/or its operations; and (ii) you agree to provide the new owner with the original or copies of the original signed or authorised APA or eAPA forms.

(d) In the event of any Change in Control, you will require the new owner to complete and provide the necessary documentation to us within the specified period prior to taking over control or settlement.

(e) Upon the date of any Change in Control (herein referred to as Handover Date) the following processes shall apply: (i) payments conducted prior to the Handover Date will be paid to the outgoing owner; and (ii) payments conducted on or after the Handover Date will be paid to the incoming owner.

(f) We may: (i) refrain from providing information or Payment Services to the new owner until we receive satisfactory evidence of the change of ownership, control or management; and/or (ii) refrain from providing information or Payment Services to the new owner until we receive records issued by appropriate government authorities which accurately reflect the applicable Change in Control.

(g) Continued transaction processing and other Payment Services may be disrupted if this clause has not been adhered to.

19. Copyright and Intellectual Property

(a) The Payment Services and all of the related products and services made available by us in connection with the Payment Services (the Materials) are subject to copyright. Unless otherwise indicated, all rights (including copyright) in the content and compilation of the Materials (including any and all text, graphics, logos, button icons, video images, audio clips, platforms, code, scripts, lists, design elements and interactive features) (the Content) are owned or controlled for these purposes and are reserved by us or our contributors.

(b) We retain all rights, title and interest (including copyrights, patents, trade secrets and trademarks) in the Material, the Content, and all related content therein. Nothing you do will transfer any interest in the Material or the Content to you.

(c) Except as expressly set forth in these Payment Terms, we do not grant you any rights whatsoever in relation to the Payment Services, Material and/or the Content. All other rights are expressly reserved by us.

(d) You may not, without our prior written consent and the permission of any other relevant rights owner, broadcast, republish, upload to a third party, transmit, post, distribute, show or display or publish in public, adapt or change in any way the Material or Content for any purpose, other than for the purposes expressly allowed by these Payment Terms. This prohibition does not extend to the Material and Content (if any) which we identify as freely available for re-use or in the public domain.

20. Third Party Content and Services

(a) We work with a number of partners and Affiliates whose websites or mobile phone applications may be linked with or provided by us and are controlled by third parties (each a Third Party Provider).

(b) We do not endorse and are not responsible or liable for the availability, contents, products, services or use of any third party product or service, Third Party Provider, any website accessed from a Third Party Provider or any changes or updates to such sites. We make no guarantees about the content or quality of the products or services provided by such sites.

(c) By using any information, product, service, or functionality originating from the Payment Services, you are allowing us to share with any third party vendor of ours any information necessary to facilitate its provisions of products, services, or functionality to you.

21. Restrictive Covenants

You warrant that you will not:

(a)  resupply, resell, repackage or otherwise reuse, copy, download, upload, modify, translate, adapt, make any derivative work, improvement or enhancement to or in any other way reproduce, the Payment Services or any part of the Payment Services;

(b)  permit any person to access or use the Payment Service or otherwise provide a Payment Service to any person, whether directly or indirectly, other than use by your authorized employee(s), officer(s), or agent(s) (each, an Authorized User) and only for the internal business purpose of providing your Customers with a method of paying you;

(c)  except to the extent permitted by applicable law, reverse engineer or derive the source code of any aspect of the Payment Services;

(d) introduce, directly or indirectly, any virus, worm, trojan or other harmful or malicious code into any aspect of the Payment Services or otherwise corrupt, degrade or disrupt any aspect of the Payment Services;

(e)  tamper with any aspect of the Payment Services or circumvent any technological measure that is designed to prevent unauthorized use or access to any part of the Payment Services;

(f) engage in any form of systematic extraction of all or part of any aspect of the Payment Services, including the use of “screen-scraping”, “bots” and “spiders”;

(g) merge any part of the Payment Services with any other database or system, unless otherwise agreed to by the parties in writing;

(h) use the Payment Services to generate any statistical or other information, or to prepare any comparison to other information databases, that may be provided to any third party, unless otherwise agreed to by the parties in writing;

(i) use the Payment Services if you are a direct or indirect competitor, or a sales agent, consultant or distributor for a direct competitor of, EzyCollect;

(j) use the Payment Services for any unlawful purpose or in a manner that contravenes any applicable laws, including those related to privacy, electronic communications, and anti-spam;

(k) use the Payment Services to disseminate, store, or transmit infringing, libelous, or otherwise unlawful or tortious material, or to disseminate, store, or transmit material in violation of third-party intellectual property or privacy rights;

(l) interfere with or disrupt the integrity or performance of the Payment Services;

(m) attempt to gain unauthorized access to the Payment Services or its related systems or networks;

(n) permit direct or indirect access to or use of the Payment Services in a way that circumvents any provision of these Payment Terms;

(o) build a competitive product or service;

(p) build a product or service using similar ideas, features, functions or graphics of the Payment Services;

(q) remove, delete, alter, or obscure any disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Payment Services; or

(r) at any time during the term and for a period of 18 months after termination of your use of the Payment Services, whether for your own account or for the account of others, solicit for employment, hire or otherwise engage any of the employees or independent contractors of EzyCollect (but the foregoing shall not prevent you from hiring any person who responds to a general solicitation not personally directed to such person; in the event you hire or engage an employee or contractor of EzyCollect in violation of this clause, we shall be entitled to collect liquidated damages from you to compensate us for locating, recruiting, hiring and training a replacement person, and our liquidated damages shall be a sum equal to two times the gross annual compensation of the person you wrongfully hired or engaged. Gross annual compensation means twelve times the subject employee or contractor’s last full month’s compensation from us, including bonuses and benefits. The parties agree and acknowledge that this amount is a reasonable, liquidated amount and not a penalty).   Any use of the Payment Services in breach of this clause may result in immediate suspension or termination of the Payment Services, in our sole discretion.

22. Dispute Resolution

(a) Compulsory Mediation and Arbitration.  If a dispute arises out of or relates to these Payment Terms or the Payment Services (a Dispute), unless the parties to the Dispute (the Dispute Parties) have complied with the following clauses, the parties may not commence any arbitration, tribunal, or court proceedings in relation to the Dispute (except where urgent relief is sought).

(b) Notice and Response.  A party claiming a Dispute must, within thirty (30) days of becoming aware of the Dispute, provide written notice to EzyCollect (the Dispute Notice) detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute and serve it on the other party by sending an email to the other party’s email, and in the case of EzyCollect to privacyofficer@ezycollect.io.  Within fourteen (14) days of receipt of the Dispute Notice, the other party must respond by providing to the other party their detailed response to the Dispute by sending an email to the other party’s email, and in the case of exyCollect to privacyofficer@ezycollect.io.

(c) Mediation.  Within seven (7) days after the date of the receiving party’s response to the Dispute Notice, the Dispute Parties shall endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.  If for any reason whatsoever the Dispute has not been resolved within twenty-one (21) days after the date of the Dispute Notice, the Dispute Parties must engage in mediation and either (a) agree upon selection of a mediator or (b) request that an appropriate mediator be appointed by the American Arbitration Association the AAA)   The mediation will be held in accordance with the AAA’s guidelines for Commercial Mediation.  The Dispute Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and, without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Dispute Parties must each pay their own costs associated with the mediation.

The mediation will be held in Wilmington, Delaware.

(d) Arbitration.  In the event that the Dispute is not resolved at the conclusion of the mediation, the Dispute Parties are prohibited from instituting legal proceedings concerning the subject matter of the Dispute and the Dispute, including any question regarding the existence, validity or termination of the Services, will be resolved by arbitration in accordance with the AAA’s Rules of Arbitration (or any rules which supersede these rules). The seat of arbitration shall be Wilmington, Delaware. The language of the arbitration shall be English. The number of arbitrators shall be one. This clause may be used as a bar to legal proceedings, however, EzyCollect may apply for immediate injunctive relief in any court of competent jurisdiction.

(e) Confidential.  All communications concerning negotiations made by the Dispute Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

23. Governing Law and Jurisdiction

The Payment Services are intended solely for businesses organized in the United States with respect to their Customers who, in turn, are domiciled and located in, or residents of, the United States. These Terms are governed by and are to be constructed in accordance with the laws of the State of Delaware, United States. Except as agreed in the compulsory mediation and arbitration provisions of clause 20, you submit to the exclusive jurisdiction of the state and federal courts situated in Wilmington, Delaware in respect of all matters arising out of or relating to these Payment Terms and the Payment Services and their performance.  The parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods, the Convention on the Use of Electronic Communications in International Contracts, and the Uniform Computer Information Transactions Act.

24. General

(a) If any part of these Payment Terms is found to be invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited; otherwise, that part shall be severed and the rest of the Payment Terms shall remain in force. 

(b) A waiver of any right, power or remedy under these Payment Terms must be in writing signed by the party granting it.  A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.  The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement does not amount to a waiver.

(c) These Payment Terms supersede all previous agreements about Payment Services and embody the entire agreement between the parties concerning Payment Services.  If you are a party to then-current General Terms, these Payment Terms do not supersede the General Terms.

(d) Each party must do all things reasonably necessary to give effect to this document and the transactions contemplated by it.

(e) We may assign or transfer our rights or obligations under these Payment Terms without your consent.  You may not assign or transfer your rights or obligations under these Payment Terms without our prior written consent.  A purported assignment without our written consent will be deemed to be void and convey no rights.

25. Notices

(a) We may provide any notice to you under these Payment Terms by sending a message to your email address. Any notice we provide to you by email shall be deemed to have been properly given on the date we send the email, regardless of whether you have received the email.

(b) Unless specified otherwise, any notices provided by you to us must be in writing and be delivered either in person, or via registered U.S. mail to 1601 5th Ave Suite 900, Seattle, WA 98101. Any notices provided by registered U.S. mail shall be deemed to have been properly given three Business Days after they are posted.

26. Defined terms & interpretation

In these Payment Terms:

(a) Application Form means an application form signed by you and accepted by EzyCollect for the provision of Payment Services.

(b) ACH Procedures means Automated Clearing House.

(c) Business Day means a day that is not a Saturday, Sunday or federal public holiday in the United States.

(d) Change in Control means a change in the directors, shareholders or unit holders of a party or its holding company so that a different person or group of persons, either: (i) becomes a director(s) and can control 50% or more of the votes at meetings of directors; or (ii) acquires 50% or more of the shares or units giving a right to vote at meetings of shareholders or unit holders.

(e) Chargeback has the meaning set out in clause 9(a).

(f) Confidential Information means all non-public information disclosed by a Disclosing Party to a Receiving Party, whether electronically, orally, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure. Confidential Information of EzyCollect includes our object code, source code, Content, Materials, the Payment Services, and the identity information of its subscribers and visitors to any of our websites, and the terms and conditions of these Payment Terms (including all Application Forms and pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. 

(g) Customer means one of your business customers, where payments sought or collected are unrelated to family, household or personal purposes.

(h) Customer Payment means an electronic payment made by a Customer through a Payment Partner’s Payment Gateway.

(i) Dispute Fee has the meaning set out in the Fee Schedule.

(j) Failed Payment means a payment transaction that was declined by a Customer’s card issuer or Financial Institution.

(k) Fee Schedule means EzyCollect’s schedule of fees attached (or linked) to the Application Form, as updated by us from time to time.

(l) Fees mean the fees as described in the Fee Schedule, as amended by us from time to time.

(m) Financial Institution means a bank, savings and loan association or credit union.

(n) Force Majeure Event means the occurrence of an event or circumstances beyond the reasonable control of a party affected by it, including a war (declared or undeclared), insurrection, civil commotion, military action, or an act of sabotage; a strike, lockout or industrial action, dispute or disturbance of any kind; an act of a government or a government authority; an act of God; a storm, tempest, fire, flood, earthquake, pandemic or other natural calamity; or such other event as is outside the reasonable control of the parties, other than an obligation to pay money.

(o) “include” or “includes” or “including” means “include without limitation,” “includes without limitation” and “including,” respectively.

(p) Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether registered, unregistered or unregistrable, including all copyrights, patents, trademarks, service marks, designs, confidential information, trade secrets, know how, data and databases, systems and domain names.

(q) Merchant Facility has the meaning set out in clause 4(a).

(r) Payment Partner means a technology partner ezyCollect has utilised to support the Payment Services, and includes the following payment partners:

– Stripe, Inc. with services rendered pursuant to its Payment Services Agreement located at https://stripe.com/legal/ssa as amended from time to time.

(s) Payment Services means the services to be provided by us as specified in clause 2.1(a), or as otherwise agreed between the parties.

(t) PCI Security Standards means the Payment Card Industry Security Standards issued by the Payment Card Industry Security Standards Council, as amended from time to time.

(u) Payment Services Agreement means the applicable services and/or gateway agreement(s) pursuant to which the relevant Payment Partner will provide services.

(v) Person means any individual, entity or organization.

(w) Privacy Legislation means the Privacy Act; and all other laws, regulations, registered privacy codes, privacy policies and contractual terms applicable in the jurisdiction where the Payment Services are being provided that relate to the processing of personal information.

(x) Privacy Policy means EzyCollect’s privacy policy located at https://ezycollect.io/privacy-policy-us.

 

Last updated on 23 November 2023.