You must agree to the Terms in order to use the Service. If you use any aspect of the Service, or click to accept or agree to the Terms if presented to you in a user interface for the Service, we will understand this as your acceptance of the Terms and your agreement to all of its terms and conditions. By accepting the Terms or using the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept the Terms, then you may not use Service. If you are using the Service on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such other entity to the Terms. If you do not have such authority, then you may not use the Service on behalf of your employer or such other entity and you must discontinue all such use immediately.
Anedot may update the Terms at any time, and Anedot will post the updated version of the Terms on the Site and the App. You understand and agree that you will be deemed to have accepted the updated Terms if you use any aspect of the Service after the updated Terms are posted. If at any point you do not agree to any portion of the Terms then in effect, you must immediately stop using the Service.
2. Provision of the Service
You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the Service. You acknowledge and agree that Anedot may make changes to any aspect of the Service at any time without notifying you in advance.
3. Termination of Service
If your Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Service and to remove all card logos from your website and wherever else they are displayed, (c) that the license provided under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of your information and Account data stored on our servers, and (e) that Anedot shall not be liable to you or any third party for termination of access to the Service, deletion of your information or Account data, or export of your information or Account data.
3.2 Anedot's Right to Terminate
Anedot reserves the right to deny service to any person or entity at Anedot's sole and absolute discretion. You acknowledge and agree that Anedot may stop providing the Service or restrict your use of the Service at any time, without notifying you in advance, for any reason or no reason, including, without limitation, for any violation of the Terms or if Anedot suspects that you have used any aspect of the Service to conduct any fraudulent or illegal activity. If Anedot disables your access to your Account (as defined below), you may be prevented from accessing the Service, your Account details or any materials contained in your Account.
3.3 Your Right to Terminate
You may terminate this Agreement by closing your Account at any time. When you close your Account, any pending transactions will be cancelled. Any funds that are held in custody for you at the time of closure, less any applicable fees, will be paid out to you according to your payout schedule, assuming all payout-related authentication requirements have been fulfilled.
3.4 Effect of Termination
If you voluntarily deactivate your User or Account, you may reactivate that User or Account at any time by contacting us via email at email@example.com. Users and Accounts terminated by Anedot for any type of abuse including, without limitation, a violation of the Terms, may not be reactivated for any reason. Additionally, we will securely store your User and Account activity following deactivation or termination for our records and for fraud prevention purposes. If we reasonably suspect that your User or Account has been used for an unauthorized, illegal or criminal purpose, you expressly authorize us to share information about you, your User and/or Account, your access to the Service and any of your transactions with law enforcement.
4. Accounts and Security
4.1 Personal Users; Accounts
To access the Site generally and to make a donation through the Service, you do not need to have an account. However, to access certain aspects of the Service, you must have a personal user account (each, a "User"). You can create a User by completing the applicable registration process. To access certain other aspects of the Service, you may also be required to create a fundraising Merchant account (each, an "Account"). A "Merchant" is a User that is an individual (at least eighteen (18) years old or older), a business, or a non-profit organization that accepts payments through the Anedot Services. Users may be Donating Users (as defined below) or may be authorized Account users, and multiple Users may be associated with and manage an Account. You may be required to provide information about yourself as part of the registration process or your continued use of the Service. You agree that any registration information that you submit to Anedot will be correct, accurate and up to date.
The "DonorID" feature enables users who make contributions through the Service ("Donating Users") to store their personal contact and payment information so that they do not need to input this information each time they make a donation through the Service, and to track their prior transactions. To use DonorID, Donating Users must create a password or add an alternative method of authorization accepted by Anedot.
4.3 Payments and Refunds
Anedot does not retain amounts (other than applicable service charges) contributed by a Donating User, but instead these amounts are transmitted by Anedot directly to one or more Accounts designated by the Donating User. These transactions are between Donating Users and recipient Accounts ("Recipients"), and Anedot is not a party to these transactions. Unless otherwise noted, all currency references are in U.S. dollars. All contributions and related service charges are payable in accordance with payment terms in effect at the time such contribution is made. Anedot may, from time to time, modify, amend, or supplement its pricing and billing procedures, and such changes shall be effective immediately upon posting a link to an update of the Terms or posting such changes elsewhere on the Site or the App. If there is a dispute regarding the Service in general, Anedot shall have the right to terminate the applicable User or Account without prior notice.
Refunds are not available for donations, payments or gifts made through Anedot. All transactions are final. However, our Service team can help research and resolve problems that arise with transactions.
At a Recipient's discretion and based upon Recipient's refund policy, a Recipient may issue a refund to a Donating User, and Anedot cannot reverse the payment. Any donation refunded from a Recipient will be returned via the payment method the Donating User used to make the donation or via a means outside of the Services such as a paper check
If a Donating User is unable to contact the Recipient or the Recipient is unreachable, the Donating User may contact Anedot by emailing firstname.lastname@example.org and specifying the request.
For the avoidance of doubt, if a credit card chargeback is initiated by a Donating User, a debit memo may be issued to the corresponding Recipient.
EACH DONATING USER ACKNOWLEDGES AND AGREES THAT ALL SERVICE CHARGES ARE NON-REFUNDABLE BY ANEDOT IN WHOLE OR IN PART.
4.4 Accepted Forms of Payment
The Services support most domestic credit, debit, prepaid or gift cards with a Visa, MasterCard, American Express, or Discover logo. In addition, the Services support most international cards with these logos. We may add or remove support for certain payment cards at any time without prior notice. We may elect only to process cards that receive an authorization from the applicable issuer. You agree to accept all of the cards listed in accordance with the terms of this Agreement.
4.5 Account Security
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. We cannot guarantee, however, that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Maintaining the security of your account is very important. You are solely responsible for maintaining the confidentiality of your password/passphrase for accessing your User ID or Account. You agree to notify Anedot immediately if you become aware of any unauthorized use of your password or of your User or Account.
4.6 No Transfer of User
Each User is registered to the corresponding individual user only and may not be transferred to a third party under any circumstances.
4.7 Inactive Accounts
Any Account that is inactive for more than six (6) months and has a balance of more than $10 will be subject to a $10 per month inactivity fee until the Account becomes active, including due to funds transfer requests or new transactions involving Account. Accounts with a balance of less than $10 will be subject to an inactivity fee totaling the remaining balance.
4.8 Deactivation by You
You have the right to deactivate your User or Account at any time. You may do so by following the deactivation link and instructions available on the Site or by contacting us via email at email@example.com. Once you deactivate your User or Account, your personal information will no longer be viewable by users of the Service. However, content previously shared with other users of the Service may remain viewable by those users until you delete such content. Deactivation of a User or an Account shall not relieve the User or the Account and its authorized users of their continued obligations under the Terms, including but not limited to obligations with respect to payment of service charges or chargebacks related thereto or other obligations to Donating Users who have made donations.
4.9 Refunds Unrelated to Donations
If you are a Merchant, you agree to process returns of, and provide refunds and adjustments for goods or services through your Account in accordance with this Agreement. It is required that you will (a) maintain a fair return, cancellation or adjustment policy; (b) disclose your return or cancellation policy to purchasers at the time of purchase, (c) not give cash refunds to a purchaser in connection with a payment card sale, unless required by law, and (d) not accept cash or any other item of value for preparing a payment card sale refund. Your refund policies must be the same for all payment methods. If your purchaser is dissatisfied with your refund policy, the purchaser may chargeback the payment. You may not bill or collect from any purchaser for any purchase or payment by means of a card unless the purchaser has exercised chargeback, you have fully paid for the charge, and you otherwise have the right to do so.
5. Use Requirements
5.1 Representations and Warranties
You represent and warrant to us that: (a) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement; (b) the name identified by you when you registered is your name or business name under which you sell goods and services; (c) any transaction submitted by you will represent a bona fide sale by you; (d) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a purchaser or donor; (e) you will fulfill all of your obligations to each purchaser or donor for which you submit a transaction and will resolve any consumer dispute or complaint directly with the purchaser; (f) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (g) except in the ordinary course of business, no transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; (h) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service; (i) your use of the Service will be in compliance with these Terms.
5.2 Merchant Requirements
To register for an Anedot Merchant account, a Merchant must provide an email address, password, street address, telephone number, tax identification number, and date of birth. You agree to provide supplemental documentation upon request. You authorize Anedot, directly or through third parties, to make inquiries or verify that this information is accurate. You specifically authorize Anedot to request a consumer report that contains your name and address. If at any time Anedot is unable to verify that the identity information you provided is correct and up-to-date, then, unless you provide verifiable information promptly, Anedot may terminate your access to your account so that you cannot accept additional payments. To qualify for a Merchant account, you myst be a an individual (eighteen (18) years or older), business, or a non-profit organization located in the 50 United States or the District of Columbia.
5.3 License Grant
Subject to the terms and conditions of the Terms, Anedot hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-assignable license to use the Service, which may only be used in in accordance with the Terms and any rules, restrictions or documentation set forth by Anedot from time to time.
In connection with the Service, you may install the App on one or more mobile devices that you own or control and that meet the minimum specifications provided by Anedot.
Anedot may require that you download and install updates to the App from time to time. You acknowledge and agree that Anedot may update the Service with or without notifying you and add or remove features or functions to the Service at any time in its sole discretion. You acknowledge and agree that Anedot has no obligation to make the Service available to you, make any subsequent versions of the Service available to you or to continue to support the Service in any way. You acknowledge that your access to the Service may not be continuous, features may change during your use of the Service, and Anedot may terminate your access to the Service or stop offering the Service at any time.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld, in connection with your use of the Services. You are solely responsible for collecting, withholding, reporting and remitting any taxes to the appropriate tax authority. Anedot is not obligated to, and will not, determine whether taxes apply, or calculate, collect, report or remit any taxes to any tax authority arising from your use of the Service.
6. Restrictions and Conditions of Use
6.1 Use of the Service
Anedot permits you to view and use the Service solely for your own personal (in the case of Donating Users) or limited commercial use (in the case of Recipients), in either case not inconsistent with the intended purpose of the Service. For the avoidance of doubt, you may be both a Donating User and a Recipient based upon your use of the Service. You agree not to license, create derivative works from, transfer, sell or resell any information, content, materials, data or services obtained from the Service. Anedot reserves the right to add or remove information, content or services from the Service at any time at its sole discretion.
6.2 Accessing the Service
You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the Site or the App. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers), and you agree to comply with the instructions contained in any robots.txt file present on the Site or the Service.
6.3 No Violation of Laws
You agree that you will not, in connection with your use of the Service, violate any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
6.4 Use Restrictions
You may not connect to or use the Service in any way that is not expressly permitted by the Terms.
You may not: (i) remove any proprietary notices from the Service; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity without the prior written consent of Anedot; or (iv) make any false, misleading or deceptive statement or representation regarding Anedot or the Service.
Without limiting the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Service (or any servers, systems or networks connected to the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Service or any other person's or entity's use of the Service (or any servers, systems or networks connected to the Service); (ii) attempt to gain unauthorized access to the Service, an Account registered to other Users, a User associated with another user, or any servers, systems or networks connected to the Service; (iii) use the Service for any commercial purpose unless consistent with the Terms and the intended use of the same, or for the benefit of any third party, or charge any person or entity, or receive any compensation for, the use of the Service, unless you are specifically authorized to do so in a separate written agreement with Anedot; (iv) use the Service to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; (iv) use the Service to perform any unsolicited commercial communication not permitted by applicable law; or (v) use the Service to engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person's identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.
Without limiting the foregoing, you agree that you will not use the Service for any other unlawful, prohibited, abnormal or unusual activity as determined by Anedot in its sole discretion.
Further, by registering for an Anedot Merchant account, you also confirm that you will not accept payments or use the Service in connection with the following activities, items or services:
- Cash, stored value, or virtual currency services;
- Debt services;
- Gambling activities, including lotteries, casino gaming, and fantasy sports;
- Illegal activity, including illicit drugs, counterfeit goods, and deceptive practices;
- Internet auctions;
- Payment aggregation services; or
- Pornography or other adult related content, products, or services;
6.5 No Data Mining or Harmful Code
You agree that you will not (a) obtain or attempt to obtain any information from the Service including, without limitation, email addresses or mobile phone numbers of other Donating Users or Recipients or other data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Service.
6.6 Violation of the Terms
You acknowledge and agree that you are solely responsible, and Anedot has no responsibility or liability to you or any other person or entity, for any breach by you of the Terms or for the consequences of any such breach. Anedot may at its option, terminate its relationship with you, or may suspend your Account immediately if it determines you are using the Service contrary to the restrictions found in this Article 6 or any other terms of the Terms.
7.1 Links from the Site
The Site may contain links to websites operated by other parties. Anedot provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of Anedot and Anedot is not responsible for the content available on the other websites. Such links do not imply Anedot's endorsement of information or material on any other website and Anedot disclaims all liability with regard to your access to and use of such linked websites.
7.2 Links to the Site
Unless otherwise set forth in a written agreement between you and Anedot, you must adhere to Anedot's linking policy as follows: (a) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Anedot's or its licensors' names and trademarks; (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Anedot; and (c) when selected by a user, the link to the Site must display the Site on full-screen and not within a "frame" on the linking website, except as permitted by Anedot for purposes of embedding a campaign form onto a Recipient's website. Anedot reserves the right to revoke its consent to the link at any time and in its sole discretion.
8. Intellectual Property
The Anedot name and logo are trademarks and service marks of Anedot. Unless permitted in a separate written agreement with Anedot, you do not have the right to use any of Anedot's trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
You acknowledge and agree that Anedot, or its licensors, owns all right, title and interest in and to the Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Service is protected by U.S. and international copyright laws. Further, you acknowledge that the Service may contain information that Anedot has designated as confidential and you agree not to disclose such information without Anedot's prior written consent.
We, including third party partners and our affiliates, may ask you for Feedback (as further defined below) on your experience with the Services. Anedot shall become the owner of any reviews, comments, suggestions or other feedback regarding the Services posted to the Services or on Anedot's social media pages (collectively, "Feedback") and it may share with any of its affiliates. Anedot will not be required to treat any Feedback as confidential and will not be liable for any Feedback posted on the Services or elsewhere. Without limitation, Anedot will have exclusive ownership of all present and future existing rights to the Feedback of every kind and nature everywhere and will be entitled to use the Feedback for any commercial or other purpose whatsoever, including to advertise and promote Anedot, without compensation to you or any other person sending the Feedback.
8.4 User Content
To the extent that you decide to post any content ("User Content"), including your profile information or Feedback, on the Services or on Anedot's social media pages, you agree that your User Content will not contain third-party copyrighted material, or material that is subject to other third-party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Anedot all of the license rights granted herein. You acknowledge that you are responsible for whatever material you submit, and you, not Anedot, have full responsibility for the Feedback, including its legality, reliability, appropriateness, originality, and copyright. Anedot may refuse to accept or transmit User Content. Additionally, Anedot shall have the right to delete, edit, modify, reformat, excerpt, or translate any of your User Content. You specifically waive any "moral rights" in and to the User Content.
8.5 Copyright Agent
Anedot respects the intellectual property rights of others, and requires that people who use the Service do the same. Anedot maintains a policy of terminating users of the Service who engage in repeated infringing conduct. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
- Your address, telephone number, and email address;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the alleged infringing material is located;
- A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Copyright Agent, Legal
1920 McKinney Ave, 7th Floor
Dallas, TX 75201
Tel: (225) 250-1301
The Service is operated by Anedot in the United States. If you choose to access the Service from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws.
11. Submitted Content
11.1 Content of Communications
Anedot is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Service or any materials submitted or made available through the Service via any function which allows a user to post or share content ("Submitted Content"). By using the Service, you agree that any content that you submit may be viewable by other users of the Service. The content of communications is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. Submitted Content may be protected by intellectual property rights owned by third parties. You are responsible for the content you choose to communicate and access using the Service. In particular, you are responsible for ensuring that you do not submit material that (a) is protected by copyright, contains trade secrets or otherwise is subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner; (b) is false or is a misrepresentation; (c) is offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; or (d) impersonates another person. Anedot may in its sole discretion block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Service or its customers, or otherwise enforce the terms of the Terms. Further, Anedot may in its sole discretion remove such content and terminate an Account if the Recipient or any authorized user submits any content that is in breach of the Terms.
Anedot does not claim ownership of any of your Submitted Content. With respect to all of your Submitted Content, you grant Anedot a perpetual, irrevocable, non-terminable, transferable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the Submitted Content or any part of the Submitted Content in connection with the Service and Anedot's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any and all media formats and through any and all media channels. You also hereby grant each user of the Service a non-exclusive license to access your Submitted Content through the Service while the Submitted Content is made available through the Service. You may take down any of your Submitted Content at any time; however, you acknowledge and agree, that Anedot may still have access to such Submitted Content and that the above license granted by you to Anedot will remain in effect despite your removal of the Submitted Content from the Service. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section 11.2.
You acknowledge and agree that: (a) by using the Service, you may be exposed to content that you may find offensive or indecent and you do so at your own risk; (b) you are solely responsible for, and Anedot has no responsibility to you or any third party for any Submitted Content that you create, submit, post or publish on or through the Service; (c) Anedot does not guarantee any confidentiality with respect to your Submitted Content; and (d) Anedot is not responsible for any Submitted Content provided by third parties that you may have access to through your use of the Service and all Submitted Content is the responsibility of the person from whom such Submitted Content originated. You acknowledge and agree that (i) Anedot has no control over and is not responsible for the use of Submitted Content by its users, including any user that has uploaded Submitted Content to a personal device; and (ii) Anedot may not be able to remove Submitted Content that is uploaded onto a user's device. Anedot does not endorse any Submitted Content or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with Submitted Content.
You acknowledge that Anedot has the right to pre-screen your Submitted Content, but has no obligation to do so. At Anedot's sole discretion, any Submitted Content may be included in the Service in whole or in part in modified form. In addition, Anedot and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Submitted Content that is available via the Service that violates the Terms or is otherwise objectionable including, but not limited to, being unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or violating any party's intellectual property.
You acknowledge that your Submitted Content is your sole responsibility. You agree, under no circumstances, will Anedot be liable in any way for any Submitted Content, including, but not limited to, any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Service.
The Service is not directed toward children under 13 years of age, and Anedot does not knowingly collect information from children under 13 or allow them to create a User or an Account or access a User or an Account. If you are under 13, please do not submit any personal information about yourself to Anedot.
13. Disclaimer of Warranties
13.1 GENERAL DISCLAIMER
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANEDOT EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. ANEDOT MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SERVICE. ANEDOT DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE SERVICE WILL BE CORRECTED; OR (e) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
13.2 DISCLAIMER REGARDING NO RELATIONSHIP BETWEEN ANEDOT AND MERCHANTS OR OTHER CHARITABLE ORGANIZATIONS
Anedot does not make any representations or guarantees regarding Merchants utilizing the Service. Use of the Services in no way represents any endorsement by Anedot of a Mechant's existence, legitimacy, ability, policies, practices, or beliefs. Anedot does not have control of, or liability for, goods or services that are paid for with the Service.
A charitable organization may use Anedot to accept payments as a Merchant. Not all charitable organizations are tax-exempt, and not all contributions to charitable organizations are tax-deductible. Charitable organizations are responsible for correctly classifying themselves and their transactions, issuing any required reports and receipts, and making any required tax or other filings. Donors are responsible for verifying the status of organizations to which they donate and reporting their donations correctly for tax and other purposes. Anedot specifically disclaims any liability in this regard.
14. Limitation of Liability; SOLE AND EXCLUSIVE REMEDY
14.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANEDOT, AND ITS AFFILIATES, LICENSORS, PROCESSORS, SUPPLIERS, NETWORKS, BANKS, AND OTHER BUSINESS PARTNERS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) (COLLECTIVELY, THE "RELATED PARTIES"), SHALL NOT BE LIABLE TO YOU, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR:
14.1.1 ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE, EVEN IF ANEDOT OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
14.1.2 THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY;
14.1.3 THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE SERVICE; or
14.1.4 (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, OR ANY DELAY IN PERFORMING OUR OBLIGATIONS UNDER THIS AGREEMENT, REGARDLESS OF WHETHER THE FAILURE OR DELAY IS CAUSED BY AN EVENT OR CONDITION BEYOND OUR CONTROL; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
14.2 WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF ANEDOT OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT OF FEES EARNED BY ANEDOT IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Anedot and the Related Parties shall be limited to the fullest extent permitted by law.
You agree to defend, indemnify and hold Anedot and the Related Parties harmless from and against any and all claims, demands, liabilities damages and losses including, without limitation, reasonable attorneys' fees, resulting from or arising out of (a) your use of the Service; or (b) your breach of the Terms or any other policies that Anedot may issue for the Service from time to time.
16. Governing Law; Jurisdiction
The Terms is governed by Delaware law and/or applicable federal law (including the Federal Arbitration Act), without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Anedot agree that, except as otherwise provided in Article 17 below, the state and federal courts located in Wilmington, Delaware will have exclusive jurisdiction of all disputes arising out of or related to the Terms or your use of the Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, Anedot shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
17. Binding Arbitration
It is Anedot's goal that the Service meets your expectations and lives up to our promises to you. However, there may be instances when you feel that Anedot has not fulfilled its obligations or you may have a different type of problem or dispute that needs special attention. In those instances, Anedot is committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your issue. Therefore, for any problem or dispute that you may have with Anedot, you acknowledge and agree that you will first give Aedot an opportunity to resolve your problem or dispute. In order to initiate this dispute resolution process, you must first send us a written description of your problem or dispute within thirty (30) days of the services being performed by sending an email to: help@Anedot.com or by mail to 1920 MCKINNEY AVE, 7TH FLOOR DALLAS, TX 75201. You then agree to negotiate with Anedot in good faith about your problem or dispute for at least sixty (60) days after Anedot's receipt of your written description of it. If we cannot come to a resolution, you agree to abide by arbitration procedures below.
17.1 Arbitration Procedures
You and Anedot agree that, except as provided in Section 17.4 below, all disputes, controversies and claims related to the Terms (each a "Claim"), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the "JAMS Rules") and under the terms set forth in the Terms. In the event of a conflict between the terms set forth in this Article 17 and the JAMS Rules, the terms in this Article 17 will control and prevail.
In the event that you or Anedot are not able to resolve a Dispute with American Express, or a claim against Anedot or any other entity that American Express has a right to join, Exhibit B Section 3 will apply. Except as otherwise set forth in Section 17.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Anedot will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator's decision regarding the Claim, the award given and the arbitrator's findings and conclusions on which the arbitrator's decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in the Terms, (a) you and Anedot may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator's decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
The arbitration will take place in Baton Rouge, Louisiana, unless the parties agree to video, phone or internet connection appearances.
You and Anedot agree that any arbitration shall be limited to the Claim between Anedot and you individually. YOU AND ANEDOT AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
17.4 Exceptions to Arbitration
You and Anedot agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of Anedot's intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court's jurisdiction in lieu of arbitration.
17.5 Arbitration Fees
If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
You and Anedot agree that if any portion of this Article 17 is found illegal or unenforceable (except any portion of Section 17.4), that portion shall be severed and the remainder of the section shall be given full force and effect. If Section 17.4 is found to be illegal or unenforceable then neither you nor Anedot will elect to arbitrate any Claim falling within that portion of Section 17.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within New Castle County, Delaware, and you and Anedot agree to submit to the personal jurisdiction of that court.
18.1 Terms Revisions
The Terms may only be revised in a writing signed by Anedot, or published by Anedot on the Site.
18.2 Supplemental Terms
18.3 No Partnership
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Anedot as a result of the Terms or your use of the Service.
Anedot may assign its rights under the Terms to any person or entity without restriction. The rights granted to you under the Terms may not be assigned without Anedot's prior written consent, and any attempted unauthorized assignment by you shall be null and void.
If any part of the Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the Terms shall be given full force and effect.
All provisions of the Terms that are reasonably necessary to accomplish or enforce the purpose of this Agreement shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
18.7 Geographic Limits of Service
The Service is controlled and operated from facilities in the United States. Anedot makes no representation that materials contained on the Service or products described or offered on or via the Services are appropriate or available for use in jurisdictions outside the United States, or that the Terms comply with the laws of any other country. Accessing the Service is prohibited from territories where the Content is illegal. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. If you access the Service from other locations, you do so at your own initiative and are responsible for compliance with local laws. You agree that you will not access the Service from any territory where the contents are illegal, and that you, and not Anedot, are responsible for compliance with applicable local laws.
18.8 Limitation on Time to Initiate a Dispute
Unless otherwise required by law, an action or proceeding by you relating to any dispute must commence within one year from the event giving rise to the cause of action.
18.9 Attorneys' Fees
In the event any litigation or arbitration is brought by either party in connection with the Terms, except as otherwise provided in Section 17.5, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
18.10 No Waiver
Our failure to enforce any provision of the Terms shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by Anedot of any provision, condition or requirement of the Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
All notices given by you or required under the Terms shall be in writing and sent to firstname.lastname@example.org.
18.12 U.S. Government Rights
If you are, or are entering into the Terms on behalf of, any agency or instrumentality of the United States Government, the Software is "commercial computer software" and "commercial computer software documentation," and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable.
18.13 Equitable Remedies
You acknowledge and agree that Anedot would be irreparably damaged if the terms of the Terms were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of the Terms, in addition to such other remedies as we may otherwise have available to us under applicable laws.
18.14 Entire Agreement
The Terms, including the documents referenced in the Terms, constitutes the entire agreement between you and Anedot with respect to the Service and supersedes any and all prior agreements between you and Anedot relating to the Service.
Exhibit A - Merchant Services Agreement
This Merchant Services Agreement for Merchants ("Merchant Agreement") is made among VANTIV, LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384, and its designated Member Bank (collectively "Acquirer"), Anedot, and the User as defined in, and in connection with, the Terms of Service between Anedot, Inc. and the User (herein referred to as "Merchant"). Capitalized terms not otherwise defined herein have the respective meanings given them in the Anedot Terms of Service. Acquirer will provide Merchant with certain payment processing (the "Services," as further defined in the Anedot Terms of Service) in accordance with the terms of this Merchant Agreement. In consideration of Merchant's receipt of credit or debit card funded payments, and participation in programs affiliated with Visa, MasterCard, Discover, and certain similar entities (collectively, "Associations"), Merchant is required to comply with the Operating Regulations (as further defined below) as they pertain to applicable credit and debit card payments. In addition, if Merchant meets certain requirements under the Operation Regulations or an Association or the Operating Regulations otherwise require, Merchant may be required to enter into a direct relationship with an entity that is a member of the Associations. By agreeing to the Anedot Terms of Service to which this Merchant Agreement is an exhibit (by "click through" agreement or otherwise), Merchant has fulfilled this requirement, if and when applicable. However, Acquirer understands that Merchant may have contracted with Anedot to obtain certain processing services and that Anedot may have agreed to be responsible to Merchant for all or part of Merchant's obligations contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:
A. Merchant Responsibilities
Merchant agrees to comply, and to cause third parties acting as Merchant's agent ("Agents") to comply, with the Associations' and other payment networks' by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks (collectively, "Operating Regulations"). Merchant may review the VISA, MasterCard, and Discover websites for a copy of the Visa, MasterCard and Discover regulations. The websites are: https://usa.visa.com/support/consumer/visa-rules.html; http://www.mastercard.com/us/merchant/; and https://www.discovernetwork.com/merchants/.
Without limiting the foregoing, Merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the Bank Secrecy Act, the US Treasury's Office of Foreign Assets Control (OFAC) and the Federal Trade Commission. For purposes of this section, Agents include, but are not limited to, Merchant's software providers and/or equipment providers.
B. Limited Acceptance Merchants
Merchant may elect to be a limited-acceptance merchant, which means that Merchant has elected to accept only certain Visa and MasterCard card types (i.e., consumer credit, consumer debit, and commercial cards) and must display appropriate signage to indicated the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.
Merchant shall only complete sales transactions produced as the direct result of bona fide sales made by Merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Merchant, or for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities.
Merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions:
- (i) the minimum transaction amount does not differentiate between card issuers;
- (ii) the minimum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand; and
- the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve).
Merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions:
- (i) Merchant is a:
- a. department, agency or instrumentality of the U.S. government;
- b. corporation owned or controlled by the U.S. government; or
- c. Merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 - Schools, Trade or Vocational;
- AND the maximum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand.
Unless otherwise agreed to in writing between Anedot and Merchant, Anedot does not charge fees on a variable rate or in connection with any discount. Anedot charges 4% + 30¢ per transaction (processing included) as a flat rate.
D. Merchant Prohibitions
A Merchant using the Anedot Services must not:
- (i) knowingly submit, any transaction that is illegal or that the Merchant should have known was illegal, including, but not limited to: pornography, money laundering, or financing terrorist activities;
- (ii) require a Cardholder to complete a postcard or similar device that includes the Cardholder's Account Number, Card expiration date, signature, or any other Card account data in plain view when mailed;
- (iii) not add any tax to Transactions, unless applicable law expressly requires that a Merchant be permitted to impose a tax. Any tax amount, if allowed, must be included in the Transaction amount and not collected separately;
- (iv) request or use an Account Number for any purpose other than as payment for its goods or services;
- (v) disburse funds in the form of travelers cheques, if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from that Merchant;
- (vi) disburse funds in the form of cash, unless: The Merchant is dispensing funds in the form of travelers cheque, TravelMoney cards, or foreign currency. In this case, the Transaction amount is limited to the value of the travelers cheques, TravelMoney cards, or foreign currency. Plus any commission or fee charged by the Merchant., or the Merchant is participating in the cash back service;
- (vii) enter into interchange any Transaction Receipt for a Transaction that was previously charged back to the Acquirer and subsequently returned to the Merchant, irrespective of Cardholder approval. The merchant may pursue payment from the customer outside the system;
- (viii) accept a Visa Consumer Credit Card or Commercial Visa Product, issues by a U.S. Issuer, to collect or refinance an existing debt;
- (ix) accept a Card to collect or refinance an existing debit that has been deemed uncollectable by the Merchant providing the associated goods or services; or
- (x) enter into interchange a transaction that represents collection of a dishonored check.
Upon receipt of Merchant's sales data for card transactions, Acquirer will process Merchant's sales data to facilitate the funds transfer between the various Associations and Merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Merchant directly to Merchant's designated demand deposit account ("Merchant-Owned Designated Account") or, at Merchant's request, to a third-party check writer's account.. Any dispute regarding amount of settlement shall be between Anedot and Merchant. Any dispute regarding the receipt of settlement shall be between Acquirer and Merchant. Acquirer will debit the Anedot Reserve Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer may also debit the Merchant-Owned Designated Account for funds owed to Acquirer as a result of the Services provided hereunder. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Merchant or the Anedot reserve account.
F. Term and Termination
This Agreement shall be binding upon Merchant upon Merchant's acceptance (by "click through" agreement or otherwise). The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number and shall be coterminous with Anedot's Terms of Service with Merchant.
Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Agreement without notice if (i) Merchant or Anedot fails to pay any amount to Acquirer when due, (ii) in Acquirer's opinion, provision of a service to Merchant or Anedot may be a violation of the Operating Regulations or any Laws, (iii) Acquirer believes that Merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquirer determines Merchant poses a financial or regulatory risk to Acquirer or an Association, (v) Acquirer's agreement with Anedot terminates, (vi) any Association deregisters Anedot, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by any of the Associations.
Further, Visa/MasterCard shall have the right to limit or terminate a Member's agreement with any Merchant at Visa/MasterCard's sole discretion.
G. Limits of Liability
Merchant agrees to provide Acquirer, via a communication with Anedot, with written notice of any alleged beach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Merchant and a waiver of any and all rights to dispute such breach.
EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Merchant's sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement. In the event that Merchant has any claim arising in connection with the Services, rights, and/or obligations defined in this Agreement, Merchant shall proceed against Anedot and not Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Merchant with respect to this Agreement or the Services. Merchant acknowledges Acquirer is only providing this Agreement to assist in Anedot's processing relationship with Merchant, that Acquirer is not liable for any action or failure to act by Anedot, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Merchant by Anedot. If Anedot is unable to provide its services to Merchant in connection with this Agreement and Acquirer elects to provide those services, directly, Merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer's then current Bank Card Merchant Agreement, which would be provided to Merchant, will govern Acquirer's relationship with Merchant. If Anedot subsequently provides its services to Merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Anedot and this Agreement will govern Acquirer's relationship with Merchant.
This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Agreement may not be assigned by Merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Merchant and is not for the benefit of, and may not be enforced by, any other party. Acquirer may amend this Agreement upon notice to Merchant in accordance with Acquirer's standard operating procedure. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement. "Member Bank" as used in this Agreement shall mean a member of VISA, MasterCard and/or Discover, as applicable, that provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, Member Bank shall be Fifth Third Bank, an Ohio Banking Corporation, located in Cincinnati, OH 45263. The Member Bank is a party to this Agreement. The Member Bank may be changed, and its rights and obligations assigned to another party by Acquirer at any time without notice to Merchant.e
I. Acceptance of American Express
In the event Merchant accepts American Express, the following terms shall apply: The following will only apply to Merchant's participation in the American Express Program and need to be included in the agreement between the Payment Facilitator and Merchant: Capitalized terms in this Section are defined in the American Express Merchant Requirements.
(i) Merchant hereby authorizes Anedot to submit transactions to, and receive settlement from, American Express on behalf of Merchant. If Merchant is placed in the American Express Program, Merchant shall be responsible for complying with the provisions set forth in Exhibit B attached hereto and Merchant Requirements.
(ii) Acquirer may disclose Transaction Data, Merchant Data, and other information about Merchant to American Express; and American Express may use such information to perform its responsibilities in connection with the Program, promote the American Express Network, perform analytics and create reports, and for any other lawful business purposes, including marketing purposes within the parameters of the Agreement. American Express may use the information from the Agreement at the time of setup to screen and/or monitor Merchant in connection with Card marketing and administrative purposes.
(iii) Merchant may be converted from the American Express Program to a direct Card acceptance relationship with American Express if and when Merchant has either (i) greater than $1,000,000 in Charge Volume in a rolling twelve (12) month prior or (ii) greater than $1,000,000 in Charge Volume in any three (3) consecutive months (hereinafter "High CV Merchant"). Upon conversion, (i) Merchant will be bound by American Express' then-current Card Acceptance Agreement; and (ii) American Express will set pricing and other fees payable by Merchant for Card acceptance.
(iv) Merchant shall not assign to any third party any payments due to it under the Agreements, and all indebtedness arising from Charges will be for bona fide sales of goods and services (or both) at its Establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Merchant may sell and assign future Transaction receivables to Acquirer, its affiliated entities and/or any other cash advance funding source that partners with Acquirer or its affiliated entities, without consent of American Express.
(v) Third-party beneficiary rights may be conferred to American Express, but not obligations to Merchant Processing Agreement, providing American Express the ability to enforce the terms of the Agreement against Merchant in association with the American Express Program only.
(vi) Merchant may elect to opt out of accepting American Express Cards at any time without directly or indirectly affecting its rights to accept other payment products by notifying Acquirer.
(vii) Anedot may terminate Merchant's right to accept American Express Cards if it breaches any of the provisions in this Section or Exhibit B.
(viii) Acquirer has the right to immediately terminate a Merchant from the American Express Program for cause, fraudulent or other activity, or upon American Express' request.
(ix) Merchant may not bill or collect from any American Express cardholder for any purchase or payment on the Card unless Chargeback has been exercised, Merchant has fully paid for such Charge, and it otherwise has the right to do so.
(x) Upon termination of the Agreement or termination of Merchant's participation in the Program, Merchant must remove any and all American Express Licensed Marks from Merchant's Website and wherever else the American Express Marks are displayed.
Exhibit B - AMERICAN EXPRESS PROGRAM GENERAL MERCHANT REQUIREMENTS
A. Card Acceptance
Merchant must accept the Card as payment for goods and services (other than those goods and services under prohibited uses) sold, or (if applicable) for charitable contributions made, at all of its Establishments, except as expressly permitted by state statute. Merchant is jointly and severally liable for the obligations of Merchant's Establishments under the Agreement.
B. Treatment of the American Express Brand
Except as expressly permitted by Applicable Law, Merchant must not:
- indicate or imply that it prefers, directly or indirectly, any Other Payment Products over the Card,
- try to dissuade Card Members from using the Card,
- criticize or mischaracterize the Card or any of American Express' services or programs,
- try to persuade or prompt Card Members to use any Other Payment Products or any other method of payment (e.g., payment by check),
- impose any restrictions, conditions, disadvantages or fees when the Card is accepted that are not imposed equally on all Other Payment Products, except for electronic funds transfer, or cash and check,
- suggest or require Card Members to waive their right to dispute any Transaction,
- engage in activities that harm the American Express business or the American Express Brand (or both),
- promote any Other Payment Products (except Merchant's own private label card that Merchant issues for use solely at Merchant's Establishments) more actively than Merchant promote the Card, or
- convert the currency of the original sale Transaction to another currency when requesting Authorization or submitting Transactions (or both).
Merchant may offer discounts or in-kind incentives from Merchant's regular prices for payments in cash, ACH funds transfer, check, debit card or credit/charge card, provided that (to the extent required by Applicable Law): (i) Merchant clearly and conspicuously disclose the terms of the discount or in-kind incentive to Merchant's customers, (ii) the discount or in-kind incentive is offered to all of Merchant's prospective customers, and (iii) the discount or in-kind incentive does not differentiate on the basis of the issuer or, except as expressly permitted by applicable state statute, payment card network (e.g., Visa, MasterCard, Discover, JCB, American Express). The offering of discounts or in-kind incentives in compliance with the terms of this paragraph will not constitute a violation of the provisions set forth above in this Section B, "Treatment of the American Express Brand".
C. Treatment of the American Express Marks
Whenever payment methods are communicated to customers, or when customers ask what payments are accepted, Merchant must indicate Merchant's acceptance of the Card and display our Marks (including any Card application forms provided to Merchant) as prominently and in the same manner as any Other Payment Products. Merchant must not use the American Express Marks in any way that injures or diminishes the goodwill associated with the Mark, nor (without prior written consent from Processor) indicate that American Express endorse Merchant's goods or services. Merchant shall only use the American Express Marks as permitted by the Agreement and shall cease using our Marks upon termination of the Agreement.
D. Treatment of American Express Card Member Information
Any and all Card Member Information is confidential and the sole property of the Issuer, American Express or its Affiliates. Except as otherwise specified, Merchant must not disclose Card Member Information, nor use nor store it, other than to facilitate Transactions at Merchant's Establishments in accordance with the Agreement.
E. ARBITRATION AGREEMENT (as to Claims involving American Express).
In the event that Merchant or Processor is not able to resolve a Claim against American Express, or a claim against Processor or any other entity that American Express has a right to join, this section explains how Claims may be resolved through arbitration. Merchant or American Express may elect to resolve any Claim by binding individual arbitration. Claims will be decided by a neutral arbitrator.
If arbitration is elected by any party, neither Merchant nor Processor nor American Express will have the right to litigate or have a jury trial on that Claim in court. Further, Merchant, Processor, and American Express will not have the right to participate in a class action or in a representative capacity or in a group of persons alleged to be similarly situated pertaining to any Claim subject to arbitration under this Agreement. Arbitration procedures are generally simpler than the rules in court. An arbitrator's decisions are final and binding, and the arbitrator's final decision on a Claim generally is enforceable as a court order with very limited review by a court. Other rights Merchant, Processor, or American Express would have in court may also not be available in arbitration.
i. Initiation of Arbitration
Claims may be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration Agreement and the selected organization's rules in effect when the Claim is filed, except where those rules conflict with this Agreement. Contact JAMS or AAA to begin an arbitration or for other information. Claims may be referred to another arbitration organization if all parties agree in writing, if American Express selects the organization and Merchant selects the other within 30 days thereafter or if an arbitrator is appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (FAA). Any arbitration hearing will take place in the federal judicial district where Merchant's headquarters is located or New York, NY, at Merchant's election.
ii. Limitations on Arbitration
If any party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. No Claim is to be arbitrated on a class or purported representative basis or on behalf of the general public or other persons allegedly similarly situated. The arbitrator's authority is limited to Claims between Merchant, Processor, and American Express. An arbitration award and any judgment confirming it will apply only to the specific case brought by Merchant, Processor or American Express and cannot be used in any other case except to enforce the award as between Merchant, Processor and American Express. This prohibition is intended to, and does, preclude Merchant from participating in any action by any trade association or other organization against American Express. Notwithstanding any other provision in this Agreement, if any portion of these Limitations on Arbitration is found invalid or unenforceable, then the entire Arbitration Agreement (other than this sentence) will not apply, except that Merchant, Processor, and American Express do not waive the right to appeal that decision.
iii. Previously Filed Claims/No Waiver
Merchant, Processor, or American Express may elect to arbitrate any Claim that has been filed in court at any time before trial has begun or final judgment has been entered on the Claim. Merchant, Processor, or American Express may choose to delay enforcing or to not exercise rights under this Arbitration Agreement, including the right to elect to arbitrate a claim, without waiving the right to exercise or enforce those rights on any other occasion. For the avoidance of any confusion, and not to limit its scope, this section applies to any class-action lawsuit relating to the "Honor All Cards," "non-discrimination," or "no steering" provisions of the American Express Merchant Regulations, or any similar provisions of any prior American Express Card acceptance agreement that was filed against American Express prior to the Effective Date of the Agreement to the extent that such claims are not already subject to arbitration pursuant to a prior agreement between Merchant and American Express.
iv. Arbitrator's Authority
The arbitrator will have the power and authority to award any relief that would have been available in court and that is authorized under this Agreement. The arbitrator has no power or authority to alter the Agreement or any of its separate provisions, including this arbitration agreement.
v. Split Proceedings for Equitable Relief
Merchant, Processor, or American Express may seek equitable relief in aid of arbitration prior to arbitration on the merits if necessary to preserve the status quo pending completion of the arbitration. This section shall be enforced by any court of competent jurisdiction, and the party seeking enforcement is entitled to seek an award of reasonable attorneys' fees and costs to be paid by the party against whom enforcement is ordered.
vi. Small Claims
American Express will not elect arbitration for any Claim Merchant properly files in a small claims court so long as the Claim seeks individual relief only and is pending only in that court.
vii. Governing Law/Arbitration Procedures/Entry of Judgment
This Arbitration Agreement is made pursuant to a transaction involving interstate commerce and is governed by the FAA. The arbitrator shall apply New York law and applicable statutes of limitations and honor claims of privilege recognized by law. The arbitrator shall apply the rules of the arbitration organization selected, as applicable to matters relating to evidence and discovery, not federal or any state rules of procedure or evidence, provided that any party may ask the arbitrator to expand discovery by making a written request, to which the other parties will have 15 days to respond before the arbitrator rules on the request. If Merchant's Claim is for $10,000 or less, Merchant may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the rules of the selected arbitration organization. At the timely request of a party, the arbitrator will provide a written opinion explaining his/her award. The arbitrator's decision will be final and binding, except for any rights of appeal provided by the FAA. Judgment on an award rendered by the arbitrator may be entered in any state or federal court in the federal judicial district where Merchant's headquarters or Merchant's assets are located.
The arbitration proceeding and all information submitted, relating to or presented in connection with or during the proceeding, shall be deemed confidential information not to be disclosed to any person not a party to the arbitration. All communications, whether written or oral, made in the course of or in connection with the Claim and its resolution, by or on behalf of any party or by the arbitrator or a mediator, including any arbitration award or judgment related thereto, are confidential and inadmissible for any purpose, including impeachment or estoppel, in any other litigation or proceeding; provided, however, that evidence shall not be rendered inadmissible or non-discoverable solely as a result of its use in the arbitration.
ix. Costs of Arbitration Proceedings
Merchant will be responsible for paying Merchant's share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees Merchant would have incurred if Merchant had brought a claim in court. American Express will be responsible for any additional arbitration fees. At Merchant's written request, American Express will consider in good faith making a temporary advance of Program Merchant's share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
x. Additional Arbitration Awards
If the arbitrator rules in Merchant's favor against American Express for an amount greater than any final settlement offer American Express made before arbitration, the arbitrator's award will include: (1) any money to which Merchant is entitled as determined by the arbitrator, but in no case less than $5,000; and (2) any reasonable attorneys' fees, costs and expert and other witness fees incurred by Merchant.
For purposes of this section only, (i) American Express includes its Affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables, and all agents, directors, and representatives of any of the foregoing, (ii) Merchant includes Merchant's Affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables and all agents, directors, and representatives of any of the foregoing, and (iii) Claim means any allegation of an entitlement to relief, whether damages, injunctive or any other form of relief, against American Express or against Processor or any other entity that American Express has the right to join, including, a transaction using an American Express product or network or regarding an American Express policy or procedure.
F. Establishment Closing
If a Merchant closes any of its Establishments, Merchant must follow these guidelines:
- Notify payment processing company immediately.
- If not providing refunds or exchanges, post notices indicating that all sales are final (e.g., at the front doors, by the cash registers, on the Charge Record and on websites and catalogs).
- Return and cancellation policies must be clearly disclosed at the time of sale.
- For Advance Payment Charges or Delayed Delivery Charges, delivery of the goods or services which have already charged to the Card Member is required or Credit must be issued for any portion of the Charge for the goods or services not delivered.