MERCHANT GENERAL TERMS OF
SERVICE
These Merchant General Terms of Service (these “General Terms”), together with the
Merchant Supplementary Terms (the “Supplementary
Terms”), which by this reference are incorporated herein (together, the “Agreement”) are entered into between
the merchant entity set out under Part A of the Supplementary Terms (“Merchant”, “you”, or “your”) and
Afterpay US, Inc. and Afterpay US Services, LLC (“we”, “us”, “our” or “Afterpay”) (each individually a “Party”, and collectively, the “Parties”)
as of the date that the Supplementary Terms are accepted by you, or as of the
date these General Terms are provided to you under Section 5 of these General Terms, as applicable (the
“Effective Date”). Except as
otherwise expressly provided by us in writing, the Parties agree that this
Agreement supersedes any and all prior executed merchant agreements between the
Parties with respect to the Services. In the event of any inconsistency or
conflict between the terms and provisions of these General Terms and the
Supplementary Terms, the terms and provisions of the Supplementary Terms shall
control. By authorizing this Agreement, you agree to be bound by its terms. If
you have not authorized the Agreement prior to using the Services, your use of the
Services shall constitute acceptance of the Agreement. All schedules to these
General Terms are expressly made part of the Agreement.
2
Term
The Term of the Agreement
is set out under Part B of the Supplementary Terms.
(a)
Extended
Repayment Feature. The Afterpay Services allow Customers to
pay for Goods offered by you using installment payment financing options we
provide (the “Extended Repayment Feature”).
Afterpay shall provide Extended Repayment Feature financing transactions to
qualified Customers to facilitate the sale of Goods by you on your Website and in
your Store (as applicable), as may be set out under Part C of the Supplementary
Terms, or as otherwise agreed to in writing. With respect to each Extended
Repayment Feature transaction with a qualifying Customer, we will disburse, or
cause to be disbursed to you payment on behalf of that Customer for the Goods purchased
from you in accordance with the terms of the Agreement, in exchange for payment
of Fees set out under Part D of the Supplementary Terms and in accordance with
Section 10
of these General Terms.
(b)
Documentation.
You must complete and return to us all
documentation required by Afterpay (including documents for our identity
verification procedures and the ACH Authorization) which must be approved by
Afterpay. You will not provide us with any information in connection with this
Agreement that is false or misleading. We may suspend the Afterpay Services or
suspend the Payment Date until such documentation is verified and approved by
us. Afterpay may terminate this Agreement immediately if we cannot verify all
documentation or if we do not approve you based on the documentation that we
receive from you pursuant to this Section.
(c)
Service Provider. In its sole discretion and election with
respect to each individual Afterpay Purchase, or with respect to various
components of the Afterpay Services, Afterpay may provide you with the Services
described herein through either Afterpay US Services, LLC or Afterpay US, Inc.
(d)
Cross
Border Trade. Afterpay may, in its sole discretion,
authorize you to use its Services for transactions relating to certain
Customers located outside of the United States to allow those Customers to use
their Afterpay Affiliate account to purchase Goods offered on your Website for
delivery outside of the United States (“Cross
Border Trade”). Where Afterpay authorizes you to engage in Cross Border
Trade, you agree to be bound by the terms set out in Schedule 2 of these
General Terms.
(a)
General. The Cash App Pay
Services allow Cash App Customers to pay using their Cash App account for Goods
offered by you on your Website and/or in your Store (as applicable) as
may be set out under Part C of the Supplementary Terms, or as otherwise agreed
to in writing, in
exchange for payment of Fees set out under Part D of the Supplementary Terms
and in accordance with Section 10
of these General Terms.
(b)
Documentation. We
have no obligation to supply the Cash App Pay Services, and you may not permit
Customers to make Cash App Purchases, until you have completed the ACH
Authorization.
(c)
Service Provider. In
its sole discretion and election with respect to each individual Cash App
Purchase, Afterpay may provide you with
the Cash App Pay Services described herein through its parent company, Block,
Inc., formerly known as Square, Inc. (“Block”) or Afterpay US, Inc.
Afterpay may
amend this Agreement from time to time with seven (7) days’ prior written
Notice (as defined below) to you; the amended terms will be made available to
you at least seven (7) days prior to the effective date. If you object to
Afterpay’s amendments to this Agreement, you may terminate the Agreement before
the effective date of such amendments through notice to Afterpay. By continuing
to use the Services without objecting to any amendments or new versions of any
of the terms of this Agreement, you agree to and accept all terms and
conditions of the amended Agreement, including any new or changed terms or
conditions.
6
Consent to do Business Electronically.
(a)
Consent to Electronic Disclosures and
Notices. By indicating
your acceptance to this Agreement and/or signing up for a merchant account, you
agree that such agreement and sign up constitutes your electronic signature,
and you consent to the use of electronic signatures, electronic provision of
all disclosures and notices from Afterpay (“Notices”), including those required by Applicable Law. You also
agree that your electronic consent will have the same legal effect as a
physical signature.
(b)
Methods of Delivery. You agree that we can provide Notices
regarding the Services to you through our website or through the Merchant
Portal, or by mailing Notices to the email or physical addresses you have
provided to us. Notices may include notifications about your merchant account,
changes to the Services or this Agreement, or other information we are required
to provide to you. You also agree that electronic delivery of a Notice has the
same legal effect as if we provided you with a physical copy. We will consider
a Notice to have been received by you within twenty-four (24) hours of the time
a Notice is either posted to our website or emailed to you.
(c)
Requirements for Delivery. You will need a computer or mobile
device, internet connectivity, and an updated browser to access the Merchant
Portal and review the Notices provided to you. If you are having problems
viewing or accessing any Notices, you must contact us so that we can
find another means of delivery.
(d)
Withdrawing Consent. Due to the nature of the Services,
you will not be able to begin using the Services without agreeing to electronic
delivery of Notices. However, you may choose to withdraw your consent to
receive Notices electronically by terminating this Agreement.
7
Use of the Services
(a)
Availability. You
will make Afterpay and/or Cash App Pay (as applicable) available for use by
Customers on your Website and/or in-Store, as applicable, as soon as reasonably
practicable. You must continue to allow Customers to make Purchases for the
duration of the Agreement, except: (i) during any period of suspension
imposed by us in accordance with this Agreement; or (ii) as otherwise
reasonably agreed by us.
(b)
Control of Website. The
Parties agree that they control and will continue to control the content of
their respective websites, mobile or tablet sites or applications, and will not
provide Customers with any information about the Services that is false,
misleading, or inaccurate. You agree that you will not take any action to
damage, intercept or interfere with our Services, software, or technology.
(c)
Merchant Portal. The
individuals designated by you, as communicated by you to us in writing or via
email will be granted access to the Merchant Portal. You must ensure that the
appropriate role is assigned to each individual. You must not share access to the
Merchant Portal other than those individuals that you identify to us in writing
who will be granted access to the Merchant Portal in connection with this
Agreement. Regardless of whether such third parties or individuals have been
identified to us, you will be responsible for the actions of any third party or
individual who accesses the Merchant Portal using the credentials assigned to
any individuals referred to above.
(d)
Reserves. Afterpay reserves the right to change the Payment Date
schedule, seek a certain amount of funds from you to set aside as a reserve, or
withhold a certain any amount from the Purchase Amounts that may be payable to
you for the purposes of setting aside as a reserve under the Agreement (“Reserves”),
if Afterpay determines in its sole but reasonable discretion that
there are concerns with the performance of your obligations under this
Agreement. If we require a Reserve under this Agreement, we will communicate
the terms of the Reserve to you, including the conditions upon which the funds
in the Reserve will be released to you. We may change or condition the terms of
the Reserve based on our continuous assessment and understanding of the risks
associated with the performance of your obligations under such the Agreement.
(e)
Demonstration of Results. You
agree, no more frequently than annually, to serve as a case study for Afterpay
to demonstrate the performance of the Services on your Website and/or in-Store.
You agree to serve as a merchant reference upon our reasonable request, no more
frequently than five (5) times a year, for other merchants considering whether
to use our Services.
(f)
Bank Account Verification. You authorize us to authenticate and
validate your business and bank account details by use of third-party reporting
services, which may include consumer reporting agencies.
(g)
Insurance. You
are responsible for ensuring that you have the appropriate insurance policies
in place to protect your Delivery of the Goods to Customers. Afterpay will not
be responsible for any damage caused to Goods during Delivery or any loss or
damage caused in connection with the supply of Goods.
8
Use of the Afterpay Services
8.1
General Terms
(a)
Technical
Integration of Afterpay Gateway. You agree to follow
reasonable directions from Afterpay regarding the technical integration of the
Afterpay Gateway on your Website and/or in-Store (as applicable). You agree to
represent the Afterpay tagline on the product page of all products where Afterpay
is offered (where relevant and technically possible). If the Afterpay express
checkout functionality is made available for technical integration (“Express
Checkout”), you agree to integrate Express Checkout on your
Website(s) where relevant and technically possible. You must obtain written
approval from an authorized Afterpay representative if your implementation of
the Afterpay Gateway deviates from the Brand Management Materials provided by
Afterpay.
(b)
Display of Afterpay Materials on your
Website or in Independent Marketing Activities. Afterpay may make available marketing
assets and other promotional material that may be displayed on your Website or
used in independent marketing activities. You agree to comply with any
reasonable directions given by Afterpay to display or distribute promotional
materials and any directions given by Afterpay to remove or cease distributing
such promotional materials, or to change the manner in which they are
displayed. As a condition of offering the Services, you agree to: (i) include
on your Website and/or in-Store (as applicable) a description of the Afterpay
Gateway in such terms as may be otherwise provided or approved by us in
writing; (ii) present such description as a ‘lightbox’ on your Website as may
be provided or approved by us in writing from time to time (where relevant and
technically possible); (iii) comply with any reasonable directions we give
about how any description of the Services or Afterpay are to be displayed on
your Website and/or in-Store (as applicable); (iv) promptly, but in all cases
within seven (7) days, comply with any reasonable direction we give you to
modify, replace or remove any description of the Afterpay Services or Afterpay
displayed on your Website and/or in-Store; and (v) not provide any description
of the Afterpay Services or Afterpay which does not comply with Brand
Management Materials, or has not otherwise been approved by us in writing. For
the avoidance of doubt, other than preapproved materials provided by Afterpay,
you agree that you will not use Afterpay’s name or product in marketing or
promotional materials or on your Website without prior written approval from
Afterpay.
(c)
Modification or Deletion of Afterpay
Materials. If we are
concerned that any content or promotional materials displayed on your Website
or in-Store do not comply with Section 8.1(a) of these General Terms, we may request
that you modify or delete the relevant content or materials or remove them from
display. You must comply with any request made under this Section as soon
as practicable and, at the latest, within seven (7) Business Days of the
request, unless you can establish to our reasonable satisfaction within this
time frame that the content or materials comply with the requirements of the
Agreement. We have the right under Section 14 of these General Terms to suspend your
access to the Afterpay Gateway if you breach these requirements, or if we
reasonably suspect that you have breached them.
(d)
Restricted Goods. You must not, without our prior written
permission, allow the Services to be used via your Website(s) or Store(s) to
purchase Restricted Goods as outlined in Schedule 1. Without limiting the
preceding sentence, Afterpay reserves the right to prohibit you from offering
the Services for use by Customers to purchase goods or services which Afterpay
considers in its reasonable discretion to be dangerous, inappropriate, or high
risk.
(e)
Parity
of Placement. Throughout
the Term, you agree that anywhere our logo is displayed by you on your
Website(s) and in your Stores (as applicable), you will display our logo in
comparable size to or larger than the logo of any other any “buy now, pay later”
or “pay by installments” electronic payment system, any service that allows
customers to borrow money to fund purchases, or any other consumer finance
service, including any such services offered by Visa, Mastercard or American
Express.
8.2
Terms in Respect of Afterpay Purchases
(a)
Approval
Confirmation. When a Customer makes an Afterpay Purchase
using the Extended Repayment Feature, Afterpay’s systems will promptly issue an
Approval Confirmation or decline to you. Afterpay exercises sole discretion
regarding the decision to issue an Approval Confirmation or to decline a
transaction. You must only Deliver or provide Goods to a Customer after you have
received Approval Confirmation. Afterpay will have no liability to you for
Goods Delivered or provided for which you have not received Approval
Confirmation.
(b)
Delivery
of Goods. Where a Customer makes an online Afterpay
Purchase using the Extended Repayment Feature, you are responsible for ensuring
that all Goods are Delivered to the Customer in accordance with Applicable Law,
promptly, and within the expected Delivery period as represented to the
Customer at the point of sale, and subject to Section 8.2(c)
(Extended Delivery Goods) of these General Terms, up to a maximum
of fourteen (14) days, or in the case of Goods that are services,
such services to be Delivered within a maximum of ninety (90) days. Where a
Customer makes an Afterpay Purchase in-Store, the Goods must be Delivered (or
provided) to the Customer immediately after Approval Confirmation, unless you
expressly agree to an alternative Delivery time with the Customer.
(c)
Extended
Delivery Goods. Notwithstanding Section 8.2(b) above, provided that you charge at order across all tender types for the
duration of the Term and we have authorized you to allow Customers to make an
Afterpay Purchase on Extended Delivery Goods:
(i)
before the
Customer completes their Afterpay Purchase for Extended Delivery Goods, you
must, no later than the point of sale, notify the Customer that the Extended
Delivery Goods are available on an extended delivery basis and that payment for
the Afterpay Purchase will be taken at completion of the Afterpay Purchase, and
provide an accurate Delivery period for the Extended Delivery Goods (“Extended Delivery Period”);
(ii)
if, prior to
Delivery of Extended Delivery Goods, there is a material change to the Extended
Delivery Period, you must notify the Customer of this change; and
(iii)
you will Deliver
Extended Delivery Goods to Customers within the Extended Delivery Period.
We will have no liability
to you for any Extended Delivery Goods that you Deliver to the Customer after
the Extended Delivery Period. For Afterpay Purchases that are Extended Delivery
Goods, we reserve the right to (1) extend the Payment Date to up to seven (7)
Business Days, (2) create a Reserve pursuant to Section 7(d) of these General Terms, and (3) in the event of non-Delivery of
Extended Delivery Goods, seek a refund from you on any Purchase Amounts we have
paid you as well as reimbursement of any chargeback fees we incur in connection
with the relevant Afterpay Purchase. We reserve the right to remove the
availability of the Afterpay Services for Extended Delivery Goods where we
determine in our sole but reasonable discretion that doing so is necessary to
comply with Applicable Laws or to avoid a higher than acceptable level of risk
to Afterpay.
(d)
Non-Delivery of Goods. If we suspect that Goods have not been or
will not be Delivered within the agreed upon time frame, we may ask you to
provide us with proof of Delivery. If we make such a request, you agree to
notify us via the Merchant Portal or by email of the shipping carrier name,
tracking number and provide confirmation that the Goods were or will be
Delivered to the address specified by the Customer when making the Afterpay
Purchase (or for permitted services, provide proof of supply of the services).
If you do not so provide this information within two (2) Business Days of
our request, or otherwise demonstrate to our reasonable satisfaction that the
Goods have been Delivered to the Customer in accordance with Section 8.2(b) of these General Terms or will promptly be
delivered, then you agree to Refund to us any Purchase Amount we have paid you
and reimburse us any chargeback fees we incur in connection with the relevant
Afterpay Purchase. We may elect to be paid such amounts in accordance with
Section 10.1(d) of these General Terms, and we may Refund
to the Customer any amounts paid by the Customer to us in connection with the
Afterpay Purchase.
(e)
Reimbursement.
You must reimburse us any chargeback
amounts (including associated chargeback fees or other costs incurred) and/or
any part of the Sale Price and associated Shipping Costs that we cannot or do
not recover from a Customer in connection with that Afterpay Purchase to the
extent that we reasonably determine, based on evidence, the chargeback or
Customer non-payment is because of:
(i)
any
conduct (including false or misleading representations), contract,
representation or warranty by you, your officers, directors, employees or sellers,
relating to the Afterpay Services or an Afterpay Purchase;
(ii)
the
Goods which are the subject of the relevant Afterpay Purchase (including,
without limitation, any product liability or warranty claim relating to those
Goods);
(iii)
the
non-delivery of any Goods, late delivery of Goods, or damage to Goods caused
during delivery, or a breach of your obligations under Sections 8.2(a), (b), or (c) of these General Terms; or
(iv)
a
breach of your representations and warranties under Sections 16.1 and 16.2 of these General Terms.
Any
reimbursement under this Section shall be limited to the Purchase Amount (plus
any chargeback costs, if applicable) of any applicable Afterpay Purchase(s)
impacted by the breach. You authorize us to collect such reimbursement via your
ACH Authorization and set-off rights pursuant to Section 10.1(d) of these General Terms, including against
any Purchase Amounts we hold in suspension under Section 10.1(g) of these General Terms.
(f)
Customer
Disputes. The Parties agree to cooperate in good
faith to promptly resolve all disputes raised by Customers with respect to
Afterpay Purchases. To the extent any such Customer dispute results in a refund
of the Purchase Amount to the Customer, Afterpay reserves the right to set off
such Purchase Amount from you.
(g)
Surcharges. You must not increase the Sale Price or
Shipping Costs, or otherwise charge a Customer any other fees, increase the
overall cost to the Customer, reject a request for a return or Refund, or
discriminate against the Customer in any way because the Customer elected to
use the Extended Repayment Feature or any other Service offered under this
Agreement.
(h)
Returns and Refunds. Your refund policies and agreements with a Customer must comply with
Applicable Law. You must (i) consider any Customer’s request for Return in good
faith and in accordance with your policies, (ii) process any Customer’s Returns
in accordance with your policies, and (iii) not treat Afterpay Purchases
differently than any other purchases with respect to accepting Goods for a
Refund, exchange, repair, or store credit.
(i)
Customer
Payments. You must not accept payments for any Goods
on our behalf. If, for any reason, you receive any part of a payment relating
to an Afterpay Purchase directly from a Customer (“Customer Payment”), you will promptly notify us of the details of
the Customer Payment and hold the full amount of the Customer Payment for our
benefit and promptly make a payment of an amount equal to the Customer Payment
to Afterpay.
(j)
Exclusivity. The exclusivity clause set out under Part E
of the Supplementary Terms will apply.
(k)
Acknowledgement. You attest that your use of the Afterpay Services
is for business purposes and not for personal, family or household purposes.
You further attest that your use of the Afterpay Services is for business-to-consumer
sales and not to facilitate Afterpay Purchases with another business, unless we
explicitly permit you to do so.
9
Use of the Cash App Pay Services
9.1
General
Terms
(a)
Technical Integration of Cash App Gateway. You agree to follow reasonable directions from Afterpay
regarding the technical integration of the Cash App Gateway on your Website(s)
or Store as applicable.
(b)
Cash App Pay Program Rules. You understand and agree that you must, at all times
during the Term, comply with the Cash App Pay Program Rules found at
https://developers.cash.app/docs/program-rules (the “Program Rules”).
You understand and agree that we may update the terms of the Program Rules at
any time and all such updates are effective upon such update unless otherwise
stated at the time.
(c)
Approval
Confirmation. When a Customer makes a
Cash App Purchase, Afterpay’s systems will promptly issue an Approval
Confirmation or decline to you. Afterpay exercises sole discretion regarding
the decision to issue an Approval Confirmation or to decline a transaction. We
shall have no liability to you for Goods for which you have not received an
Approval Confirmation.
9.2
Compliance
(a)
AML Requirements. In
respect of the Cash App Pay Services, each Party shall comply with all applicable
laws on anti-money laundering, counter-terrorism financing, export control and
economic sanctions regulations (together “AML”). In accordance with AML, anti-fraud, and other
compliance and security policies and procedures, Afterpay may impose reasonable
limitations and controls on your ability to utilize the Cash App Pay Services,
including but not limited to rejecting payments, or suspending/restricting any Cash
App Pay Services with respect to certain transactions or your Customers and your
prospective Customers. Afterpay may, for
the purposes of complying with applicable laws, report suspicious transactions
to the relevant authorities without informing you.
(b)
Records. In respect of the Cash
App Pay Services, Afterpay shall have the right to audit, examine, and make
copies of or extracts from all financial and related records (in whatever form
they may be kept, whether written, electronic, or other) relating to or
pertaining to the subject matter of this Agreement, kept by you or under your
control, and to perform AML audits (the “Audit Right”). You shall
cooperate and make all applicable records available to Afterpay during normal
business hours and within three (3) days of receipt of written notice of such
audit.
10.1
Fees, Billing and Payments
(a)
“Fees” are
the fees for Services performed under this Agreement and must be made in U.S.
dollars. With respect to each Purchase,
we will disburse, or cause to be disbursed to you payment on behalf of the
Customer for the Goods purchased from you in exchange for payment of Fees set
under Part D of the Supplementary Terms. You will pay Afterpay the Fee as
outlined under Part D of the Supplementary Terms for each Afterpay Purchase and
each Cash App Purchase, as applicable, due on the Payment Date. The Fee is not
refundable unless paid incorrectly.
(b)
We will pay the Purchase Amounts to you on
the Payment Date for such Purchase, once daily, as a single transaction netting
the aggregate Purchase Amounts for all Purchases due to you on the Payment Date
against all amounts then due to us under the Agreement, as described in this
Section, including the Fee, and in respect of Afterpay Purchases, any Refund
Amounts and Customer Payments. We will remit such amounts by direct transfer to
your Account nominated on the ACH Authorization. We do not guarantee against
any delays of receipt of Purchase Amounts caused by the banking system or other
external factors.
(c)
You
agree to pay all amounts owed to us when due pursuant to this Agreement. Your
failure to pay amounts owed to us under this Agreement is a breach, and you
will be liable for any costs or expenses we incur during collection, in
addition to the amount you owe us.
(d)
Afterpay may (i) set off against any
amounts we owe you under the Agreement all amounts you owe us under the
Agreement (including, without limitation, the Fee, and in respect of Afterpay
Purchases, any Refund Amounts and Customer Payments), (ii) in respect of the
Afterpay Services, debit your Account from time to time for the amounts owed to
us under the Agreement and in accordance with the ACH Authorization, or (iii)
collect or set off amounts owed to us under the Agreement from funds that we
hold in Reserve pursuant to Section 7(d) of
these General Terms. Any
amounts that we set off or debit against payments owing to us shall nonetheless
be treated as a payment from you to us for all tax, accounting, invoicing, and
other relevant purposes.
(e)
You authorize us to initiate electronic
credit and debit entries to your Account designated on your ACH Authorization
for payment of amounts owing to us hereunder. If there are insufficient funds
in your Account to pay Afterpay all sums when due, the full amount of such
deficiency shall be immediately due and payable by you to Afterpay. You agree
to reimburse us for any fees or charges incurred by us as a result of any
transaction that is refused by your financial institution for insufficient
funds (“NSF”). You understand and agree that the initiation and
transmission of each debit and credit will be subject to, and will be made in
accordance with, U.S. law and the Operating Rules of the National Automated
Clearing House (“NACHA Rules”). You represent, warrant, and certify to
Afterpay that the Account you identify on the ACH Authorization is a business
deposit account and that such account is not used for any personal, family, or
household purposes.
(f)
Your failure to pay amounts owed to us under
this Agreement is a breach, and you will be liable for any costs or expenses we
incur during collection, in addition to the amount you owe us.
(g)
Afterpay reserves the right to suspend the
Payment Date or otherwise suspend the payment of Purchase Amounts to your
Account should Afterpay determine, in its sole discretion, that your business
presents a high level of risk, including but not limited to issues relating to
non-delivery of Goods, excessive late delivery of Goods, excessive Customer
complaints, excessive disputes or Refunds, Afterpay is unsuccessful in debiting
your account designated by your ACH Authorization, Afterpay is
unsuccessful in verifying, or does not approve you based upon, the
documentation that you provide pursuant to Section 3(b) of these
General Terms, you are subject to an Insolvency
Event, other suspicious activity
associated with your use of our Services, or if required by Applicable Law or
court order. For the avoidance of doubt, Afterpay reserves the right
to deduct from the suspended Purchase Amounts any amounts you owe Afterpay
under the Agreement, including your liability to Afterpay arising from Section 8.2(e) of these General Terms or a
breach of your representations and warranties under Sections 16.1
and 16.2 of these
General Terms. If we suspend the Payment Date for any
reason, we will communicate the general reason for suspending the Payment Date
and provide you with a timeline for releasing the funds.
(a)
Unless otherwise stated, all Fees are exclusive of any
Taxes. You are responsible and liable for determining any and all Taxes
required to be assessed, incurred, collected, paid, or withheld for your use of
the Services. You also are responsible and liable for (i) determining whether
Taxes apply to your sale of any goods or services, payments received, and any
other transactions arising from or out of your use of the Services, and (ii)
calculating, collecting, reporting, or remitting any Taxes to the appropriate
tax and revenue authorities. Afterpay specifically disclaims any liability for
such Taxes.
(b)
Notwithstanding the foregoing, Afterpay may charge
Taxes on Fees, as required by Applicable Law, which you agree to pay, unless
you provide Afterpay with timely appropriate, complete, and accurate
information and documentation satisfying the legal and tax requirements of the
relevant governmental or tax authority to establish that the otherwise
applicable Tax is not required to be charged by Afterpay.
(c)
Afterpay may be obligated under Applicable Laws to
report certain information to tax and revenue authorities (“Tax Information”)
and/or you with respect to your use of the Services. Upon request, you shall
provide Afterpay with the necessary information to complete any applicable Tax
Information reporting and recertify such information from time to time, as may
be required by Applicable Law. If you use our Services, you acknowledge that we
will report to the applicable tax and revenue authorities the required Tax
Information (including, if required by Applicable Law, the total amount of
payments you received during the relevant reporting period). We also may, but
are not obligated to, send to you the Tax Information reported.
(d)
You acknowledge that we are not providing any tax
advice and nothing we say or provide to you should be interpreted as such. For
any tax-related inquiries in connection with the Services or this Agreement, you
should consult your own tax or legal advisor.
11
Returns,
Refunds and Chargebacks
11.1
Afterpay Services – Obligations in Respect
of Returns, Refunds and Chargebacks
(a)
Subject to this Section 11.1, if you accept Goods for Refund (“Accepted for Refund”),
then any Refund Amount due in relation to the Return is owed by you to Afterpay and not the Customer. Within three (3)
Business Days of your receipt of returned Goods, as you define receipt under
your internal policies and in accordance with Applicable Law, you must inform us of the Return and the Refund Amount via the
Merchant Portal or the associated API. All Afterpay Purchases that are Accepted
for Refund in whole or in part must, subject to this Section, be refunded via the Afterpay payment method. We reserve
the right to hold you liable for the Purchase Amount associated with the Goods
Accepted for Refund if they are refunded via another tender type.
(b)
When you agree to provide a Customer with a
Refund, you will be liable to us for the Refund Amount on the applicable
Payment Date, and we may recover those sums in accordance with Section 10.1(d) of these
General Terms (or, where we have not yet paid the
Purchase Amount to you, by way of set-off by deducting the Refund Amount from
the Purchase Amount relating to those Goods). Afterpay will then cancel any
future payments due by the Customer to Afterpay and/or Refund to the Customer
any amounts paid to Afterpay.
(c)
For Returns processed more than one hundred
twenty (120) days after the date on which Approval Confirmation was provided or
for Returns processed more than sixty (60) days after the termination of the
Agreement, to the extent Afterpay, in its sole discretion, permits any Returns
after the termination of the Agreement, the terms of this Section 11.1 shall not apply, and Afterpay
shall have no liability to you with respect to such Returns. You must deal
directly with the Customer with respect to such returns and the associated
Refund and process such Refund via another tender type. Without limiting this
Section 11(c),
any assistance we may provide to you to effect payments to Customers for any
Refunds for such Goods, including providing assistance outside of the time
period stated in this Section 11(c),
shall be at our sole discretion.
11.2
Cash
App Pay Services – Refunds
(a)
All refunds in respect of Cash App Purchases during the
Term and following termination are governed by the Program Rules.
(a)
Except
as permitted or required by the Agreement, each Party must not use or disclose
any of the other Party’s Confidential Information.
(b)
Each
Party may disclose the Confidential Information of the other Party: (i) when
required to do so by Applicable Law or any regulatory authority of competent
jurisdiction (provided that the
first Party provides the other Party with reasonable prior written notice of
such disclosure, if legally permitted, to allow such Party adequate opportunity
to seek a protective order preventing or limiting the disclosure) or registered
stock exchange offering either Party’s securities; (ii) to a director, officer,
employee, agent, contractor, professional adviser, investor or financing source
(or potential investor or financing source) of the first Party whose duties
reasonably require such disclosure, provided such person has agreed to keep the
information confidential; and (iii) with respect to Confidential Information of
the merchant provided in connection with a specific Purchase or Customer,
Afterpay may use such information to process transactions, service Customer
accounts, and otherwise in accordance with Afterpay’s or its Affiliates’ privacy
policies in any applicable jurisdiction.
(c)
Each
Party must take all reasonable steps to ensure that no Confidential Information
of the other Party is used, directly or indirectly, in any way that is
detrimental or adverse to the other Party and that each person to whom any
Confidential Information of the other Party must be or has been disclosed does
not use or disclose such Confidential Information except as is consistent with
these confidentiality commitments.
(d)
Each
Party must take steps no less rigorous than those which it takes in respect of
its own information (but in no event less than a reasonable degree of care) to
prevent any unauthorized use, disclosure or loss of, or unauthorized access or
damage to, the Confidential Information of the other Party under its possession
or control.
(e)
With respect to
Confidential Information of Afterpay provided to Merchant, Merchant may use
such information solely to facilitate a Purchase and represents and warrants
that it shall comply with applicable Privacy Laws.
(f)
Any and all Confidential Information disclosed by one
Party and received by the other Party prior to the Effective Date will be
subject to the obligations set out in this Section 12.
(g)
With respect to
Confidential Information of Afterpay provided to Merchant, Merchant may use
such information solely to facilitate a Purchase and represents and warrants
that it shall comply with Applicable Law relating to privacy and data
protection, including without limitation the applicable requirements of the
Gramm-Leach-Bliley Act.
13
Intellectual Property
13.1
General
(a)
Except
as expressly provided herein, nothing in the Agreement shall confer to either
Party or any of its Affiliates any right of ownership in any of the
Intellectual Property of the other Party.
(b)
We
hereby grant to you a limited, fully-paid, non-exclusive, non-transferable,
non-sublicensable, revocable limited license, during the Term, to use the
Afterpay Marks, Afterpay Gateway, Merchant Portal, and Afterpay Software, in
each case, solely in connection with your use of the Services as defined herein
and otherwise carrying out your rights and privileges hereunder. You must not
copy, modify, alter, amend, supply to any third party or use for any other
purpose any Afterpay Intellectual Property without our express prior written
consent. Subject to Sections 11.1(c) and 15.3(a) of these General Terms, on
termination of the Agreement, you must: (i) permanently delete all copies
of the Afterpay Software in your possession or control, (ii) as soon as
reasonably practicable discontinue the use or display of any Afterpay
Intellectual Property, and (iii) dispose of any works embodying any Afterpay
Intellectual Property. Without limiting this Section, if these General Terms
are amended to remove your right to offer the Afterpay Gateway online or
in-Store, you must immediately discontinue the use or display of any Afterpay
Intellectual Property associated with the discontinued right.
(c)
You
shall use the Afterpay Marks only in accordance with the design, description
and/or appearance of the Afterpay Marks as presently used by us. You may not
change or modify the Afterpay Marks. You agree to abide by any reasonable
guidelines provided by us from time to time in connection with the use of the
Afterpay Marks. You further agree that any products or services promoted in
association with the Afterpay Marks meet or surpass the standards set by us and
conveyed to you from time to time for the character and quality of such
products and services. The initial standard for such products and services is
the nature, standard and quality of the same or equivalent products and/or
services provided by us up to and including the date hereof in association with
the Afterpay Marks. At our request, you shall provide to us for our review,
comment and approval, samples of such products and sample copies of materials
associated with such products or used to advertise/promote the products on
which the Afterpay Marks appear and the services promoted and provided in
association with the Afterpay Marks.
(d)
You
hereby grant Afterpay a fully-paid, non-exclusive, non-transferable limited
license, during the Term, to use your legal name or trade name in the user flow
associated with the Extended Repayment Feature, or Cash App (as applicable).
You shall retain all Intellectual Property rights in such name. Other than the
foregoing license rights, Afterpay shall not obtain any right, title, or other
interest in or to your name by virtue of the Agreement. Upon the earlier of the
expiration or termination of the Agreement, all license rights conveyed by you
to Afterpay shall cease, and all such rights shall revert to you.
(e)
You grant
Afterpay and its Affiliates during the Term a non-exclusive, non-transferable,
revocable and royalty free license to use your name, logo, and details of your
Website in our marketing materials and channels, including, without limitation:
in directory listings of Afterpay’s merchants; product listings; email
marketing; social media marketing; and affiliate network marketing. You also grant Afterpay and its Affiliates during the Term
a non-exclusive, non-transferable, revocable and royalty free license to use one or more image(s) of our choosing from your Website
in our marketing materials and channels. You agree to obtain on our behalf any
third-party consents or licenses required to enable us to use any such image as
contemplated by the Agreement, without attribution and without charge to us. If
you notify us that you would like your name, logo, and/or details of your
Website removed from this marketing material, or would prefer us to use a
different image, we will do so as soon as reasonably practicable.
13.2
Cash
App, Cash App Pay and the Cash App Pay Services
(a)
Cash App, Cash App Pay, as well as the trademarks,
copyrights, trade secrets, patents, proprietary technology, or other
intellectual property owned by Block and licensed to Afterpay to implement the
Cash App Pay Services (collectively, “Block Intellectual Property”)
shall remain the sole and exclusive property of Block. For the avoidance of
doubt, “proprietary technology” includes amongst others Cash App Pay,
platforms, and APIs used to implement the Cash App Pay Services, as well as all
current and future Intellectual Property rights that are developed by Block
which may be capable of protection including but not limited to materials,
documentation, software, systems, code, patents, copyright, trademarks,
designs, trade names, business name, domain names and logos that are owned or
acquired by Block. Merchant will reasonably assist Block in protecting such
ownership in the Block Intellectual Property. Block reserves to itself all
rights to the Block Intellectual Property not expressly granted to you herein.
Except as expressly provided in this Agreement, Merchant does not acquire any
rights or interest in or to the Block Intellectual Property. You will not
utilize the Block Intellectual Property except as expressly authorized under
this Agreement.
(b)
All rights, title and interest to the Block Intellectual
Property including, amongst others, modifications, enhancements, improvements,
updates, additions, derivative works, and related material shall, before,
during and after the termination of this Agreement, continue to vest in Block.
Merchant shall not use, modify, duplicate, or copy Block Intellectual Property
for any purpose other than specified in this Agreement or authorized in writing
by Block and/or Afterpay. Merchant shall not reverse engineer or infringe on
Block Intellectual Property, nor shall it acquire any rights or interest
therein.
(c)
You are hereby granted a limited, revocable,
non-exclusive, non-transferable, fully-paid, non-sublicensable, right to use the
Afterpay’s Marks and the Block Intellectual Property solely and exclusively in
connection with the Cash App Pay Services, and the advertising and promotion of
the Cash App Pay Services provided hereunder.
(d)
You hereby grant Afterpay, Block, and its Affiliates a
non-exclusive, non-transferable, assignable, sub-licensable, royalty-free
license to use your name, logo, and details of and images on your Website(s)
You agree to obtain on our behalf any third-party consents or licenses required
to enable us to use such images as contemplated by this Agreement, without
attribution and charge to us. If requested by you, we will, as soon as
reasonably practicable, cease use of or modify your name, logo, or details or
images obtained from your Website(s). Upon your prior written approval, we may
use your name in public announcements or press releases.
(e)
Except as expressly provided herein, you shall not use the
Block Intellectual Property or Afterpay Marks in marketing or promotional
materials on your Website(s) or Store(s) or in any public announcement or press
release, without prior written approval from Afterpay.
(a)
In
addition to our rights in the Agreement, we may suspend your access to the
Services, including ability to process Refunds and withhold Purchase Amounts,
by giving you written notice if: (i) Afterpay is unsuccessful in verifying, or
does not approve you based upon, the documentation that you provide pursuant to
Section 3(b) of these General Terms, (ii) you have
breached any provision of the Agreement; (iii) you undergo a change of
ownership or control and we are unable to verify your new ownership or we are
prohibited from doing business with you under Applicable Law; (iv) it is
necessary to protect our systems or the Services against harm, including but
not limited to fraud or malicious activity; (v) you are subject to an
Insolvency Event; (vi) in respect of the Afterpay Services, Afterpay is
unsuccessful in debiting your Account pursuant to the ACH Authorization; or
(vii) we reasonably believe that continuing to provide the Services is in
breach of Applicable Laws or our internal policies or procedures.
(b)
Any
suspension will remain effective until the reason for the suspension has been
remedied. Without limiting your other obligations under the Agreement, while
any suspension is effective, you must, as soon as reasonably practicable,
comply with all reasonable directions that we give regarding your advertisement
and offer of the Afterpay Gateway, including your use of Afterpay Intellectual
Property.
15.1
Termination for cause
(a)
Either
Party may terminate the Agreement immediately (or from such other date as it
may nominate) by giving the other Party written notice of termination if: (i)
the other Party materially breaches any provision of the Agreement, and either
such breach is incapable of remedy, or the other Party has failed to remedy
such breach within fourteen (14) days of the date of a written notice
issued to it by the Party requiring remedy of the breach; (ii) the other Party
engages in any fraudulent activity or conduct; (iii) the other Party is unable
to perform its obligations as a result of a Force Majeure event, and such event
continues for a period of thirty (30) days; or (iv) the other Party
experiences an Insolvency Event.
(b)
In
addition, we may terminate the Agreement immediately by giving you written
notice of termination if: (i) we are
unable to verify your ACH Authorization details or identity verification
documentation, or we do not approve you based upon the documentation you
provide, pursuant to Section 3(b) of these General Terms, (ii) we reasonably
believe that your consumer agreements with Customers or other interactions with
Customers do not reflect the original basis of our contracted agreement
(including, without limitation, where you change your policies in any way that
affects the ability of any Customer to Return any Goods in the manner intended
under the Agreement); (iii) we reasonably believe that you have breached any of
your representations and warranties in Sections 16.1 and 16.2 on a repeated basis; (iv) you are offering
for sale or selling Restricted Goods or Services through your Website or
in-Store without prior written permission from Afterpay; (v) the Monthly
Default Rate is 4% or higher; (vi) you undergo a change of ownership or control
and we are unable to verify your new ownership or we are prohibited from doing
business with your new owner under Applicable Law; (vii) Afterpay ceases
providing the Services, including the Extended Repayment Feature, Cash App Pay, and/or Cash App (as applicable) as
contemplated under the Agreement; or (viii) we are unsuccessful in debiting
your Account pursuant to the ACH Authorization and any such default remains
uncured for more than two (2) Business Days.
15.2
Termination
for convenience
(a)
Either you or we may terminate the
Agreement for any reason by giving at least fourteen (14) days’ prior
written notice.
(b)
To the
extent that Part B of the Supplementary Terms includes an “Initial Term”,
Section 15.2(a) of these General Terms will not apply
during such Initial Term.
15.3
Consequences
of termination
(a)
Termination of the Agreement does not
affect any right or obligation which arose under the Agreement before such
termination and is without prejudice to the Parties’ other rights and remedies.
Afterpay, in its sole discretion, may permit or require Returns processed
within sixty (60) days following the termination of the Agreement to be
processed via the Afterpay tender type in accordance with Section 11.1(c).
For the avoidance of doubt, Afterpay’s rights under Section 8.2(i), 10.1(d)
and 10.1(e) of these
General Terms continue in relation to Customer
Payments received by you, and all Refunds approved by you, after termination.
(b)
Upon
termination of the Agreement for any reason, all rights and licenses granted
under the Agreement will terminate immediately, except as expressly provided in
the Agreement, and you must immediately cease using all Afterpay Intellectual
Property, including by removing all references to Afterpay from your Website and
in-Store.
(c)
Without
limiting the other provisions of the Agreement, Sections 8.2(f), 8.2(i), 10.1(d), 10.1(g), 10.2, 11, 12, 15.3, and 16 of these General Terms, and any other
provisions of the Agreement which by their nature are required to survive
termination of the Agreement, will survive termination.
16
Warranties, Liability, and Indemnity
16.1
Mutual
Representations and Warranties:
(a)
Each
Party makes the following representations and warranties to the other:
(i)
it has
full power and authority to enter into and perform its obligations under the
Agreement and the Agreement is a legal, valid, and binding obligation of each
Party, enforceable against it in accordance with its terms;
(ii)
to the
best of its knowledge, the consummation of the Services and the obligations and
rights otherwise described in the Agreement shall not result in the material
breach of or constitute a default under any contract or agreement to which it
is currently a party or to which it becomes a party in the future;
(iii)
it is
not insolvent, in bankruptcy proceedings, in receivership or engaged in or
threatened with any litigation or arbitration or other legal (including
regulatory enforcement) proceedings or investigations of any kind which would
have an adverse effect on its ability to perform its obligations under the
Agreement;
(iv)
it is
and will continue to be throughout the Term of the Agreement a legally existing
business entity, authorized to do business in each jurisdiction in the United
States in which it carries on business; and
16.2
Your
representations and warranties
(a)
You
represent and warrant to us that:
(i)
you
conduct business in material compliance with all Applicable Laws and hold all
required business registrations and other qualifications, licenses or
certifications in each jurisdiction in the United States in which you are doing
business. If you are a sole proprietor, you are at least the age of majority in
the jurisdiction where you reside;
(ii)
all
information you provide with the ACH Authorization or otherwise provide to us
is complete, current, and correct;
(iii)
the
person who completed the ACH Authorization and entered into the Agreement, in
each case, on your behalf was duly authorized to do so and to bind you; and
(iv)
you
will comply with Applicable Laws in your use of the Services.
(b)
You
make the following warranties to us in relation to each Purchase:
(i)
neither
you nor your employees or agents will engage in any fraudulent or misleading
conduct in connection with the Purchase;
(ii)
each
Purchase will represent a bona fide sale of the Goods by you in the ordinary
course of your business;
(iii)
you
will provide us with complete purchase information with respect to each
Purchase;
(iv)
you
will Deliver or arrange for Delivery of, all the Goods involved in the Purchase
in accordance with the terms of this Agreement;
(v)
in
relation to each Purchase, the purchase, and the terms and conditions
associated with the Goods involved in the Purchase will comply with Applicable
Law;
(vi)
in
relation to Goods that are goods: (i) the Customer will have, title to the
Goods listed and clear of all encumbrances, liens and claims; (ii) the Goods,
at the time they are Delivered to the Customer, will be of merchantable and
acceptable quality; (iii) the Goods will materially match any sample or
demonstration model shown to the Customer; (iv) the Goods, at the time they are
Delivered to the Customer, are fit for any particular purpose which the
Customer communicated to you, your agents or employees;
(vii)
in
relation to Goods that are services: (i) the Goods will have, or will be,
provided with due care and skill; (ii) the Goods will be Delivered within the
agreed time frame, or within a reasonable time frame if no time has been agreed
for provision of the Goods, and in respect of an Afterpay Purchase, up to a
maximum of ninety (90) days from the date of the Afterpay Purchase; and (iii) you
will inform the Customer that the Customer will be charged for the Goods at the
time the Customer makes a Purchase, and not at the time the Goods are
Delivered;
(viii)
you
will not, without prior written permission from Afterpay, allow the Afterpay Services
to be used to purchase Restricted Goods or Services as outlined in Schedule 1
to these General Terms via your Website or in-Store using the Services;
(ix)
you
will not seek or obtain, any special arrangement or condition from, nor
discriminate in any way against, the Customer with respect to the terms of any Afterpay
Purchase; and
(x)
you
will not do anything to prevent any amounts owing to us in connection with an
Afterpay Purchase from being valid and enforceable against the relevant
Customer.
16.3
Limitation of Liability and Warranty
Disclaimer
(a)
If you
grant Afterpay, including any employee or agent of Afterpay, access to your
system, Website, platform, code base or other technology, for any purpose
related to the Services including, but not limited to, integration of computer
code, other technology, content, images or marketing materials, you acknowledge
and expressly agree that Afterpay will have no liability for any damage,
interruption, errors or other loss related to your system, Website platform,
code base or other technology that may be caused by the acts or omissions of
Afterpay including but not limited to any forms of liability or damages enumerated
in Section 16.3(b) below.
(b)
To the extent not prohibited by law, under
no circumstances shall we, our subsidiaries, partners, or Affiliates, be liable
to you for personal injury or any indirect, incidental, consequential, special
or exemplary damages, loss of profits, loss of revenue, loss of sales or
business, loss of agreements or contracts, loss or damage to goodwill, loss of
use or corruption of software, data or information arising from or relating to
the Agreement, the use of or inability to use the Services, the Afterpay
Gateway, the Cash App Pay Gateway, or the Merchant Portal, or our or your
liabilities to third parties arising from any source. SOME JURISDICTIONS DO NOT
ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, SOME OF THIS
SECTION MAY NOT APPLY TO YOU.
(c)
To the
extent not prohibited by law, the aggregate liability of us and our Affiliates
and suppliers to you for all claims arising out of or related to the Agreement
or your use or inability to use the Afterpay Gateway, the Cash App Pay Gateway,
or the Merchant Portal, will not (other than as may be required by Applicable
Law in cases involving personal injury) exceed $5,000. These limitations will
apply even if the above stated remedy fails of its essential purpose. For the
avoidance of doubt, this does not limit Afterpay’s obligations to pay you any
Purchase Amount due to you under the Agreement.
(d)
ALL
SERVICES PROVIDED BY OR ON BEHALF OF AFTERPAY HEREUNDER AND ALL LICENSES TO
AFTERPAY MARKS, AFTERPAY GATEWAY, CASH APP PAY GATEWAY, MERCHANT PORTAL,
AFTERPAY SOFTWARE, AFTERPAY INTELLECTUAL PROPERTY AND BLOCK INTELLECTUAL
PROPERTY, ARE PROVIDED OR LICENSED, AS APPLICABLE, ON AN “AS IS” AND “AS
AVAILABLE” BASIS, AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN. AFTERPAY
AND ITS AFFILIATES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND HEREBY
EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE,
RELATING TO OR ARISING OUT OF THE AGREEMENT, INCLUDING WITHOUT LIMITATION, THE
CONTINUED AVAILABILITY OF THE SERVICES GENERALLY OR TO CUSTOMERS IN ANY PARTICULAR
GEOGRAPHICAL AREA, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE.
16.4
Indemnification
Without
prejudice to any other rights we have under the Agreement or under Applicable
Law, you agree to release, indemnify and hold harmless us, our Affiliates, and
our respective officers, directors, employees and agents from and against any
third-party claims, liabilities, damages, taxes, losses and expenses, including
without limitation reasonable legal and accounting fees, arising out of or in
any way related to: (i) any Goods (including, without limitation, any claim by
the Customer relating to a warranty or the quality or non-delivery of the
Goods); (ii) any conduct (including false or misleading representation,
negligence or fraud), transaction, contract, representation, warranty or other
relationship, actual, asserted or alleged by you, your officers, directors,
employees or agents relating to a Purchase, Goods, or any related matter or any
inaccuracy in Tax Information provided hereunder; or (iii) your violation of
Intellectual Property rights of a third party.
17
General
(a)
Unless
otherwise specified in the Agreement, any notices to be given hereunder to any
other Party, including any notice of a change of address, shall be in writing
and shall be deemed validly given if sent by electronic mail, as follows:
(i)
if to
Afterpay: [email protected] (or an email address otherwise notified to you by
Afterpay)
(ii)
if to
you, to the address you provide through the Merchant Portal or to any email
address you provide to us.
17.2
Relationship of the Parties
Afterpay is
serving as an independent contractor to you under the Agreement. Nothing in the
Agreement, including the method of computing compensation, shall be deemed or
construed to create a relationship of partnership or joint venture between the
Parties or any relationship other than independent parties contracting for
services. Neither Party has nor shall either Party hold itself out as having
any authority to enter into any contract or create any obligation or liability
on behalf of, in the name of, or binding upon the other Party.
17.3
Governing Law, Arbitration, Jurisdiction
and Disputes
(a)
Disputes. If
any dispute arises under the Agreement, the Parties agree to seek to resolve
the dispute in good faith within thirty (30) days’ written notice of such
dispute. No action, suit, arbitration or other proceeding may be commenced
before the Parties have attempted to resolve the dispute pursuant to this
provision, unless injunctive relief is sought. All disputes, controversies or
differences which may arise between the parties hereto, out of or in relation
to this Agreement, shall be finally settled by arbitration in accordance with
Section 17.3(b)
of these General Terms.
(b)
Governing
Law and Arbitration. This Agreement shall be governed by the
laws of the State of Delaware notwithstanding any conflict of law rules, and
the Federal Arbitration Act and federal arbitration law apply to this
Agreement. Any dispute, claim or controversy arising out of or relating to this
Agreement, or the breach, termination, enforcement, interpretation or validity
thereof, shall be determined by binding arbitration in Wilmington, Delaware
before one arbitrator, to be mutually agreed upon. Any arbitration under this
provision must be on an individual basis and class actions are not permitted. The arbitration shall be administered
by Judicial Arbitration and Mediation Services pursuant to its Comprehensive
Arbitration Rules and Procedures and in accordance with the “Expedited
Procedures” described therein. Judgment on the award may be entered by any
court having jurisdiction. The Parties each retain the right to seek injunctive
or other equitable relief from a court to prevent (or enjoin) the infringement
or misappropriation of intellectual property. In all arbitrations, each party
will bear the expense of its own counsel, experts, witnesses, administrative
fees and expenses, and preparation and presentation of evidence at the
arbitration. If for any reason this arbitration clause is deemed inapplicable
or invalid, both Merchant and Afterpay waive, to the fullest extent allowed by
law, any claims to recover punitive or exemplary damages, any right to pursue
any claims on a class or consolidated basis or in a representative capacity,
and any right to a jury trial. AFTERPAY AND YOU EACH HEREBY KNOWINGLY AND
VOLUNTARILY WAIVE ANY RIGHT WHICH EITHER OR BOTH OF THEM WILL HAVE TO RECEIVE A
TRIAL BY JURY OR PURSUE ANY CLAIM AGAINST THE OTHER AS A PLAINTIFF OR CLASS
MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING WITH RESPECT TO ANY
CLAIMS, CONTROVERSIES OR DISPUTES WHICH MAY ARISE OUT OF THIS AGREEMENT OR THE
SUBJECT MATTER HEREOF.
(c)
Customer Consumer Rights. With respect to each Afterpay Purchase,
the Customer’s rights and remedies as a consumer in respect of the Goods
(including rights to seek and obtain refunds) are as between You and the
Customer, to the exclusion of Afterpay (to the maximum extent permitted by
law).
17.4
Miscellaneous
(a)
Entire Agreement. This Agreement, including these General
Terms, together with the Supplementary Terms, and all Schedules, Exhibits or
Addenda attached hereto, constitute and contain the entire agreement between
you and us with respect to the subject matter hereof and supersedes any prior
or contemporaneous oral or written agreements, unless otherwise expressly
provided by us in writing. You and we acknowledge and agree that the other has
not made any representations, warranties or agreements of any kind, except as
expressly set forth herein.
(b)
No Waiver. A failure to exercise or a delay in
exercising any right, power or remedy under the Agreement does not operate as a
waiver. A single or partial exercise or waiver of the exercise of any right,
power or remedy does not preclude any other or further exercise of that or any
other right, power or remedy. A waiver is not valid or binding on the Party
granting that wavier unless made in writing.
(c)
Construction. The headings of the sections of the
Agreement are inserted for convenience only and are not intended to affect the
meaning or interpretation of the Agreement. Any rule of construction to the
effect that ambiguities are to be resolved against the drafting Party will not
be used in the construction or interpretation of the Agreement, including any
Exhibits, Schedules or Addenda attached hereto.
(d)
Severability. If any provision of the Agreement (or any
portion thereof) is determined by a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions of the Agreement shall not
be affected thereby and shall be binding upon the Parties and shall be
enforceable to the fullest extent permitted by Applicable Law, as though said
invalid or unenforceable provision (or portion thereof) were not contained in the
Agreement.
(e)
Transfers or assignments. You may not transfer or assign any rights
you may have under the Agreement without our prior written consent, not to be
unreasonably withheld. We may transfer or assign this Agreement, and any right
under the Agreement, to a third party, and we will notify you in advance of
such a transfer or assignment.
(f)
Counterparts; Electronic Signatures. Each of these General Terms and the
Supplementary Terms may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
Agreement. Each Party agrees that the electronic signatures, whether digital or
encrypted, of the Parties included in the Agreement are intended to
authenticate this writing and to have the same force and effect as manual
signatures. Delivery of a copy of these General Terms, the Supplementary Terms,
or any other document contemplated hereby bearing an original or electronic
signature by facsimile transmission, by electronic mail in portable document
format (.pdf) form or by any other electronic means intended to preserve the
original graphic and pictorial appearance of a document will have the same
effect as physical delivery of the paper document bearing an original or
electronic signature.
(g)
Third Party Beneficiaries. Except as may be expressly provided or
incorporated by reference in the Agreement, no provision of the Agreement is
intended nor shall it be interpreted to provide or create any third-party
beneficiary rights or any other rights of any kind in any person or entity
other than the Parties hereto.
18
Definitions
Terms
in these General Terms that are capitalized but not otherwise defined above or
in the Supplementary Terms have the following meanings:
Accepted
for Refund means, in
respect of any Goods that are Returned to you, your acceptance of those Goods
for Refund.
Account means your bank account held at your
financial institution from which you authorize Afterpay to debit funds under
the ACH Authorization.
ACH Authorization means the authorization you grant us, by
providing us with your bank account details (including bank account name, bank
transit number, and bank account number) to debit or credit your Account in
accordance with the terms of this Agreement. This authorization may also be
granted to us through your submission of your bank account details through our merchant onboarding form on the
merchant onboarding portal.
Affiliate means a person or
entity that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with the respective
Party. For the purposes of this agreement, control shall mean ownership
(directly or indirectly) of at least 50% either (i) of the voting shares or
similar voting instruments or the combined voting power in an entity or
association or the power to direct or cause the direction of the general
management or policies of an entity or (ii) the total value of all stock,
capital interest, or profits interest in such entity or association.
Afterpay Customer means a person
who buys Goods from you via your Website or in-Store using the Extended
Repayment Feature.
Afterpay
Gateway means the Afterpay
electronic payment gateway system, which allows participating merchants to offer
Customers the Extended Repayment Feature.
Afterpay
Intellectual Property
means Intellectual Property owned or licensed by Afterpay, excluding any
Intellectual Property owned by you and licensed to Afterpay pursuant to this
Agreement.
Afterpay Marks means the trademarks, service marks, trade
names, logos and other commercial and product designations of Afterpay
including the domain name www.afterpay.com and other proprietary materials
identified by Afterpay for use in its Services or on the Website.
Afterpay
Purchase means a purchase
by a Customer of any Goods via your Website or in-Store for the amount
specified in the Approval Confirmation, for supply in-Store or delivery to a
location in the United States, using the Extended Repayment Feature and for
which Afterpay has provided Approval Confirmation to you.
Afterpay
Services means our
provision of the Extended Repayment Feature to you for the use of your
Customers in the United States as contemplated by the Agreement, including but
not limited to access to the Afterpay Gateway and the Merchant Portal provided
by Afterpay.
Afterpay
Software means the
software provided by Afterpay to you pursuant to the Agreement.
Applicable
Law means (i) all
applicable federal, state, local and administrative laws, rules, regulations
and interpretations, including, without limitation, consumer protection laws,
rules and regulations; (ii) the by-laws, rules, regulations, operating letters
and policies, operating manuals and cardholder data security standards of the payment
card networks; (iii) all data security standards and programs established by
the Payment Card Industry Data Security Standards Council relating to, among
other things, transactions, cards or in any other way applicable to this
Agreement; and (iv) any applicable rule or requirement of the National
Automated Clearinghouse Association, as any or all of the foregoing may be
amended, revised or replaced from time to time.
Approval
Confirmation means
electronic notice from us to you that a Purchase has been approved by us.
Authorization
Amount means the maximum
amount Afterpay authorizes for a specific Purchase and is specified in the
Approval Confirmation.
Brand
Management Materials mean
the Afterpay brand, logo, electronic banners, lightboxes, Website integration,
point of sale materials, marketing guidance and any other marketing,
advertising, and promotional materials that Afterpay provides to Merchants from
time to time.
Business
Day means a day other than
a Saturday, Sunday, or bank holiday in the United States.
Cash App means the Cash App application-based
financial platform through which users can send peer-to-peer payments, store
funds, order physical and virtual debit cards, purchase, and store bitcoin, and
obtain financial rewards using products or services featured within the
application.
Cash App
Customer means Cash App user who uses
Cash App Pay for payment to complete a transaction with you.
Cash App Pay
Gateway means the Afterpay electronic payment gateway
system, which allows participating merchants to offer Cash App Pay.
Cash App Pay means the program that
enables a Merchant to obtain a Customer’s authorization to use the Customer’s
Cash App account as a source for payment.
Cash
App Pay Services means our provision of Cash App Pay
to you through the Cash App Gateway, including access to the Merchant Portal.
Cash
App Purchase means a purchase by a Customer of any
Goods via your Website or Store for the amount specified in the Approval
Confirmation, for supply
in-Store or delivery to a location in the United States, using Cash App and for which Afterpay has provided Approval Confirmation
to you.
Confidential
Information means the
terms of the Agreement, trade secrets, or proprietary business information, and
any information (of whatever form and nature) disclosed by a Party to the other
Party, but Confidential Information does not include information which: (i) at
the time of the first disclosure to a Party, was already in the lawful
possession of (or was prior to disclosure known by) the receiving Party; (ii)
is or becomes public through lawful means otherwise than by disclosure in
breach of the Agreement; (iii) becomes available to a Party legitimately
without confidential or proprietary restrictions from any other third-party
source that is legally entitled to that information without an obligation of
confidentiality; or (iv) is or was independently developed by employees or
agents of the receiving Party who had no access to any Confidential Information
and as a result of such Party’s own internal efforts without the direct or
indirect use of any Confidential Information of the disclosing Party.
Customer means an Afterpay Customer or a Cash App Customer.
Customer
Payment has the meaning
given to it by Section 8.2(i) of these General Terms.
Delivered
means, in the case of
Goods that are goods, delivered; and, in the case of Goods that are services,
supplied, and Delivery and Deliver have corresponding meanings.
Effective Date has the meaning given in Section 1 of these General Terms.
Extended
Delivery Goods means Goods that will be Delivered: in respect of Goods that are goods,
more than fourteen (14) days after Approval Confirmation; and in respect of
Goods that are services, more than ninety (90) days after Approval Confirmation.
Extended
Delivery Period has the meaning given
in Section 8.2(c).
Extended Repayment Feature has the meaning given in Section 3(a) of these General Terms.
Fee
means the fee set out in
Part D of the Supplementary Terms.
Force Majeure
means, to
the extent it is beyond the reasonable control of a Party, any act of God, lightning,
storm, flood, fire, earthquake, explosion, cyclone, tidal wave, landslide, or
adverse weather conditions; act of public enemy, war (declared or undeclared),
terrorism, sabotage, revolution, riot, strike, insurrection, or epidemic; and
embargo, power or water shortage.
Goods means the item(s) or service(s) supplied
by you to a Customer who elects to use the Extended Repayment Feature or Cash App, as applicable, to purchase those
items and/or services.
Insolvency
Event means an event where
one Party (i) voluntarily or involuntary (and such involuntary petition or
proceeding is not dismissed within sixty (60) days) commences (or is the
subject of, as the case may be) any proceeding or files any petition seeking
relief under Title 11 of the United States Code or any other Federal, state or
foreign bankruptcy, insolvency, liquidation or similar law, (ii) applies for or
consents to the appointment of a receiver, trustee, custodian or similar
official for such other Party or for a substantial part of its property or
assets, (iii) makes a general assignment for the benefit of creditors, (iv)
commences the winding up or liquidation of its business or affairs, or (v)
takes corporate action for the purpose of effecting any of the foregoing.
Intellectual
Property means all (i)
trademarks, service marks, and other indications of origin, and all goodwill
associated therewith and all applications, registrations and renewals
associated with the foregoing; (ii) inventions, discoveries and ideas (whether
patentable or unpatentable and whether or not reduced to practice), and all
patents, patent rights, applications for patents (including, without
limitation, divisions, continuations, continuations-in-part and renewal
applications), and any renewals, extensions or reissues thereof; (iii) trade
secrets, know-how, Confidential Information, and other proprietary rights and
information; (iv) copyrights and works, including works of authorship, whether
copyrightable or not and all applications, registrations, renewals and
extensions in connection therewith (whether presently available or subsequently
available as a result of intervening legislation); (v) designs, industrial
designs and design patents and applications and registrations thereof; (vi)
domain names; (vii) databases; and (viii) all other intellectual property and
other proprietary rights.
Merchant
Portal means the online
interface provided to you by us which is accessible via our website.
Monthly Default Rate means, at any point in time, the total value
of losses Afterpay incurs for Customer non-payment of Afterpay Purchases
occurring on your Website(s) and in your Store(s), as applicable, in a single
calendar month for which the Customer’s payments to Afterpay are overdue
divided by the total value of Afterpay Purchases occurring on your Website(s)
and in your Store(s), as applicable, during that calendar month.
Party or Parties has the meaning given in Section 1 of these General Terms.
Payment Date means for Purchase Amounts and Fees, up to
five (5) Business Days immediately following the date of the Purchase; in
respect of Afterpay Purchases for Refund Amounts, including Shipping Costs, the
Business Day following the day on which the Goods are Accepted for Refund and
you enter the Refund of the Goods to the Afterpay payment type.
Purchase
means
either an Afterpay Purchase or a Cash App Purchase.
Purchase
Amount means, in respect
of each Purchase, the relevant Sale Price plus any Shipping Costs.
Refund
means a partial or whole refund
of the Sale Price for any Goods Accepted for Refund and/or of any related
Shipping Costs.
Refund
Amount means the amount
that you agree to Refund to a Customer for Goods Accepted for Refund according
to your policies or other amount that you agree to Refund to a Customer.
Restricted Goods or Services has the meaning given in Schedule 1 to these General Terms.
Return means the return of any Goods to you by a
Customer in connection with an Afterpay Purchase (and other than a return of
Goods by the Customer for the purposes of an exchange, the grant of store
credit or for repair) initiated by the Customer.
Sale
Price means the purchase
price (including all applicable taxes) of the Goods supplied by you.
Services means either the Afterpay Services, or the
Cash App Pay Services, or both (as applicable).
Shipping
Costs means any fees,
costs or expenses charged by you to a Customer for the Delivery of Goods
purchased through the Services to the address specified by the Customer when
making the Purchase.
Store(s) means any physical location in the United
States at or from which you supply the Goods or conduct transactions for the
supply of the Goods.
Taxes means any and all
present or future taxes, charges, fees, levies or other assessments, including,
without limitation, income, telecommunications, value-added, goods and services
tax or similar taxes, gross receipts, excise, real or personal property, sales,
withholding, social security, occupation, use, severance, environmental,
license, net worth, payroll, employment, franchise, transfer and recording
taxes, fees and charges, imposed by any domestic or foreign taxing authority.
Term
has the meaning given to
it under Part B of the Supplementary Terms.
Website
means any electronic
retail sales facility (including any website and mobile or tablet sites or
applications) owned and operated by you, including the websites listed under
Part C of the Supplementary Terms.
Schedule 1
Afterpay Services – Restricted Goods or
Services
Afterpay Services – Cross Border Trade
Terms
(a)
If
Afterpay authorizes you to carry out Cross Border Trade under Section 3(d) of the General Terms, this Schedule 2
applies and will form part of your obligations under the Agreement;
(b)
All
references in this Agreement to “Purchase” or “Afterpay Purchase” shall also
include Cross Border Transactions and apply as it would in relation to any
Afterpay Purchase;
(c)
Afterpay
may, at its own discretion, authorize locations outside the United States where
you may allow Cross Border Transactions. The limitations on the purchase of
Goods from, and the delivery of Goods to, territories outside the United States
do not apply for Cross Border Transactions;
(d)
Subject
to Section 8.2(c) (Extended Delivery Goods) of the
General Terms and in accordance with Section 8.2(b) (Delivery of Goods) of the General
Terms, you must ensure that all Goods are Delivered to the Customer promptly,
and within the expected Delivery period as represented to the Customer at the
point of sale, and in the case of Goods that are goods, up to a maximum of
twenty-one (21) days (where shipping must occur within ten (10) days), or in
the case of Goods that are services, up to a maximum of ninety (90) days, if it
is a Cross Border Transaction;
(e)
You
are responsible for arranging Delivery of all Cross Border Transactions and for
any and all additional costs and charges (including without limitation any
applicable taxes, duties, delivery charges and other applicable amounts)
associated with any Cross Border Transaction;
(f)
You
must ensure that any and all additional costs and charges associated with a
Cross Border Transaction (including without limitation any applicable taxes,
duties, delivery charges and other applicable amounts) charged by you to the
Customer with respect to a Cross Border Transaction are included in the Sale
Price and Shipping Costs (as applicable) or are otherwise clearly represented
to the Customer prior to the point of purchase;
(g)
To
allow for foreign exchange settlement on a Cross Border Transaction, the
Payment Date for Purchase Amounts and Fees and for Refund Amounts for a Cross
Border Transaction may be extended in each case by three (3) additional
Business Days;
(h)
In
accordance with Section 10.1(a) of the General Terms, Afterpay will
make all payments to you in respect of a Cross Border Transaction in U.S.
dollars;
(i)
In
addition to any Fee payable by you for each Afterpay Purchase for each Cross
Border Transaction, a “Cross Border
Transaction Fee” will be payable by you to Afterpay for each Afterpay
Purchase as set out under Part D of the Supplementary Terms;
(j) To the extent that your Website supports multi-currency presentment so that a Customer is able make a Cross Border Transaction in a currency other than U.S. Dollars (the “Foreign Currency”), we will convert the Foreign Currency to U.S. Dollars on the date of the Cross Border Transaction using the same conversion rate that Afterpay must pay, plus a fee of 1% of the converted amount, to calculate the payments referenced in clause (h) above and the Cross Border Transaction Fee;
(k)
The
terms of Section 10 of the General Terms apply to the
Cross Border Transaction Fee in the same way as it applies to the Fee
(including that the Cross Border Transaction Fee is not refundable unless paid
incorrectly or otherwise required by law). For the avoidance of doubt, the
Cross Border Transaction Fee will not be refunded or repaid to you in respect
of Goods that are returned to you by Customers;
(l)
You
and we will, when performing obligations in relation to Cross Border
Transactions for Customers located outside of the United States, each comply
with the applicable Cross Border Transaction Privacy Terms available here:
https://www.afterpay.com/attachment/409/download/XBPrivacy;
(m)
In
addition to the other rights of termination under this Agreement, Afterpay may
terminate the provision of Cross Border Trade for any reason immediately by
written notice to you (including without limitation where Afterpay ceases to
offer Cross Border Trade capability in connection with its Services). If
Afterpay terminates Cross Border Trade, this Schedule 2 shall not apply, the
remaining provisions of this Agreement shall not be affected, and the Agreement
shall remain in full force and effect and shall continue to be legally binding
on the Parties. For the avoidance of doubt, if either Party terminates this
Agreement pursuant to its terms, this shall also terminate your provision of
the Services to Customers located outside the United States;
(n)
For
the avoidance of doubt, Afterpay is not performing any cross-border business
and is not acting as agent for any Afterpay Affiliate in relation to the Cross
Border Transactions;
(o)
Additional
definitions for use in this Exhibit:
(i)
“Cross Border Transaction” means an
Afterpay Purchase between you and a Customer who is located in, and resides
outside of the United States, where Delivery of the Goods takes place outside
the United States;
(ii)
“Customer” means a Customer of an
Afterpay Affiliate who uses such Afterpay Affiliate’s services where it is
offered outside of the United States; and
(iii)
“we” includes an Afterpay Affiliate,
where applicable.
Schedule 3
ACH AUTHORIZATION
This ACH Authorization is being entered
into in conjunction with Afterpay US, Inc.’s commercial agreement with Merchant
governing use of Afterpay US, Inc.’s services (the “Commercial Agreement”).
Payment will be initiated in accordance with the Commercial Agreement. In the
event of any conflict between the Commercial Agreement and this ACH agreement,
this ACH agreement shall control.
By completing this form, Merchant
authorizes Afterpay US, Inc. to initiate electronic debit entries to the
account number at the financial institution below and to debit such account as
payments of amounts due and owing from time to time by Merchant to Afterpay US,
Inc. Merchant further authorizes Afterpay US, Inc., if necessary, to credit
entries to the account states below to reverse all or a portion of a debit.
Should there be insufficient funds in the
stated account to pay all such sums when due, the full amount of such
deficiency shall be immediately due and payable by the Merchant. Merchant agrees
to reimburse Afterpay US, Inc. for any fees or charges incurred by Afterpay US,
Inc. as a result of any transaction that is refused by Merchant’s financial
institution for insufficient funds (“NSF”).
Merchant understands and agrees that the
initiation and transmission of each debit and credit will be subject to, and
will be made in accordance with, U.S. law and the Operating Rules of the
National Automated Clearing House (“NACHA Rules”).
Merchant represents, warrants, and
certifies to Afterpay US, Inc. that the account identified below is a business
deposit account and that such account is not used for any personal, family, or
household purposes.
This authority will remain in effect until
Merchant terminates it by written notice at least 15 days before an automated
payment is to be made. Merchant agrees to notify Afterpay US, Inc. of any new
financial institution or account for automatic debit at least 15 days before
its next automated payment is due.
Please complete this authorization form, attach a voided check (or other proof of ownership of bank account), and return to Afterpay. Keep a copy for your records.
_______________________________________________________________________________
Signature
of Merchant’s Authorized Representative
_______________________________________________________________________________
Printed Name Title Date
_______________________________________________________________________________
Name
of Financial Institution, Branch
_______________________________________________________________________________
Financial Institution’s Address
_______________________________________________________________________________
Merchant’s Full Business Name (name on Bank Account) Tax ID
Account
Number ___________________________ Please note that we require a checking
account.
_______________________________________________________________________________
Financial
Institution ACH Routing Number
Total Amount Deducted Monthly: Variable amount specified on statement
Merchant receives before Debit Date
Effective Date: Immediately after Merchant’s first
Customer uses Afterpay’s Services and for the remaining Term of the Agreement
Schedule 4
AFTERPAY
CARD SERVICES (IN-STORE)
If
Afterpay authorizes You to utilize Afterpay Card Services for in-Store, this
Schedule 4 applies and will form part of your obligations under this Agreement.
1.
Introduction
a.
If Afterpay
provides you with the Services for use in your Stores or for use on your
Website(s) for Customers using a digital wallet (the “Afterpay Card Services”),
this Schedule will apply to use of such Afterpay Card Services will form part
of your obligations under this Agreement.
b.
This Afterpay Card
Services Schedule (the “Schedule”) is incorporated into
and subject to the terms of the Agreement. In the event of a conflict between
any provision of this Schedule and any provision of the Agreement with respect
to the Afterpay Card Services, the provisions of this Schedule shall control.
2.
Description of the Afterpay Card Services and Afterpay
Card Services Requirements
a.
The Afterpay
Card Services. The Afterpay Card Services allow Customers to
pay for Goods offered by you in your physical retail Store locations using the
Extended Repayment Feature. For the purposes of Afterpay Card Services, the
Extended Repayment Feature will allow Customers to take advantage of certain
financing options made available by Afterpay, and we will disburse, or cause to
be disbursed to you payment on behalf of the Customer for the Goods purchased
from you via an Afterpay commercial card (the “Afterpay Card”). With respect to each use of the Extended Repayment
Feature by a Customer, Afterpay US Services, LLC will make or cause payment to
be made to you for the purchase of certain Goods on behalf of that qualifying
Customer in accordance with the terms of this Schedule and the Agreement, in
exchange for the payment of Fees under Section 3 of this Schedule.
b.
Afterpay Card
Services Integration. You will
integrate with the Afterpay Card Services by processing the Afterpay Card via
your payment service provider (“PSP”).
c.
Afterpay Card
Authorization. By authorizing the
Afterpay Card at your terminal, you communicate to Afterpay that a Customer is
making an Afterpay Purchase, and the Goods have been or will be Delivered to
the Customer with a total Sale Price, plus any applicable Shipping Costs, equal
to the amount of the authorization (the “Authorization
Amount”). The successful authorization of that transaction through the card
network constitutes Approval Confirmation to you.
d.
Capture from
the Afterpay Card. You will have up to
fourteen (14) days from the date of the Afterpay Purchase to capture any
portion of the Authorization Amount, based on the dollar value of Goods that
you have Delivered to the Customer (the aggregate amount of such Authorization
Amount so captured “Purchase Amount”).
If you do not capture the full Authorization Amount within fourteen (14) days
of the Afterpay Purchase (i.e., if the Purchase Amount for a given Afterpay
Purchase is less than the Authorization Amount for that Afterpay Purchase
fourteen (14) days or more after the Afterpay Purchase), we reserve the right
to void and refund to the Customer the difference between the Authorization
Amount and the Purchase Amount as of the end of the 14th day after
the purchase date. Afterpay reserves the right to hold you liable for: (i) any
amounts captured more than fourteen (14) days after the Afterpay Purchase; (ii)
any amounts captured that exceed the Authorization Amount for a particular
Afterpay Purchase; and (iii) any amounts captured for an Afterpay Purchase not
tied to the associated Authorization Amount for an Afterpay Purchase
(collectively, the “Unauthorized Capture
Amounts”). We will Invoice you in accordance with Section 3.b below for the full Unauthorized Capture Amount and any associated fees.
e.
Transmission of
Purchase Amounts. Afterpay will pay you for each Afterpay
Purchase made through the Afterpay Card Services by tendering payment in an
aggregate amount up to the Purchase Amount to your PSP. You acknowledge the
amount actually received by you in respect of any Purchase Amount may be less
due to fees and other expenses related to your receipt of the Purchase Amount
via Your PSP, including without limitation, card networks and Interchange Fees.
For the purposes of this Agreement, “Interchange Fees” means any interchange
fees and any other fees and other expenses charged by the issuing bank of the
Afterpay Card, as reported to Afterpay by the issuing bank. The manner in which
you receive the Purchase Amounts and the timing of settlement will depend on
your arrangements with your PSP. We cannot guarantee against any delays of
receipt of Purchase Amounts caused by credit card systems, your PSP, or other
external factors.
f.
Refunds. See Section 6.a.ii below.
3.
Afterpay Card Services Fees and Invoicing
a.
Interchange
Fees. Purchase Amounts due from
Afterpay are determined at our initiation of such payment; as set forth above,
the amount you actually receive may be less due to fees and other expenses
related to your receipt of the Purchase Amount via your PSP, including without
limitation, card network fees and Interchange Fees.
b.
Afterpay Card
Fees and Invoicing. The Fee will be due on each Afterpay Purchase.
Afterpay will invoice you on a daily basis for any Fees, Unauthorized Capture
Amounts, Non-Card Refunds, and Unauthorized Refunds due in accordance with this
Schedule (the “Invoice”).
Afterpay may receive certain Interchange Fees on transactions routed as credit
through VisaNet (the “Afterpay
Interchange Fees”). Unless otherwise stated in your Fee Schedule pursuant
to this Agreement, Afterpay will credit you (via Invoice) for any Afterpay
Interchange Fees with respect to all Afterpay Purchases completed using the
Afterpay Card Services. Further, Afterpay will invoice you for the Afterpay
Interchange Fees associated with Afterpay Purchases subsequently Accepted for
Refund and returned to you, including any Interchange Fees in excess of the
Afterpay Interchange Fees, via your PSP, as applicable. The Business Day following
the date of the Invoice, Afterpay will debit your Account for the amounts due
to us under such Invoice in accordance with the ACH Authorization you provide
us. You agree that (i) you will route all transactions under this Schedule as
credit through VisaNet and not through any other available network, and (ii)
acknowledge that Afterpay will not credit you for the Afterpay
Interchange Fee with respect to any transactions under this Schedule that are not
routed as credit through VisaNet. If Afterpay is unable to debit your account
for amounts owed to us pursuant to this Schedule, we reserve the right to
suspend your Afterpay account consistent with the Agreement, or, at our option,
set off such amounts against aggregate Purchase Amounts due from online
purchases made from your Website(s).
4.
Display and Use of Afterpay Name and Materials
a.
Afterpay will make
available marketing assets and other promotional material that must be
displayed in your Store(s). As a condition of offering the Afterpay Card
Services, you agree to: (i) only display descriptions of the Afterpay Card
Services in terms provided or approved by us in writing; (ii) comply with any
reasonable directions we give about how any description of the Afterpay Card
Services or Afterpay are to be displayed in-Store(s) or on your Website(s);
(iii) promptly, but in all cases within fourteen (14) days, comply with any
reasonable direction we give you to modify, replace or remove any description
of the Afterpay Card Services or Afterpay; and (iv) not provide any description
of the Afterpay Card Services or Afterpay which does not comply with Brand
Management Materials, or has not otherwise been approved by us in writing.
b.
Afterpay will
provide pre-approved Brand Management Materials for in-Store use. With respect to any marketing materials and
other marketing assets that mention Afterpay’s Services or feature Afterpay’s
Intellectual Property other than pre-approved material provided by Afterpay to
you, you must submit all such material to Afterpay for Afterpay’s written
approval before such marketing materials are distributed or displayed. For the
avoidance of doubt, other than as provided in this Section 4, You must not use Afterpay’s name or product in marketing or
promotional materials or on your Website(s) without prior written approval.
5.
Training Requirements
a.
As a condition of
offering the Afterpay Card Services in Your Store(s), you agree to provide
appropriate training regarding the Afterpay Card Services to your Store
Personnel which shall consist of written materials provided by Afterpay to you
(the “Afterpay Card Training”).
b.
At least fourteen
(14) days before the launch of Afterpay Card Services, and upon request, no
more frequently than annually, you will provide a certification to Afterpay
that the training of all relevant Store Personnel has been completed.
c.
You remain
responsible and liable for the appropriate training of your Store Personnel at
all levels. If we reasonably believe that your Afterpay Card Training is not
sufficient, including if we receive Customer complaints about the Afterpay Card
Services, the Parties will jointly cooperate to deploy a mutually agreeable
solution to enhance your Afterpay Card Training.
6.
Changes to the Agreement Specific to Afterpay Card
Services
a.
The Agreement is
amended with the following changes that apply solely with respect to the
Afterpay Card Services. For the avoidance of doubt, this Schedule does not
amend or strike such provisions with respect to the Services provided to you on
your Website(s), and each provision referenced in this Section 6 will continue in effect with respect to such Services provided to you
on your Website(s) without alteration.
i.
No Net Settlement.
The following Sections of the Agreement do not apply to the Afterpay Card
Services and are struck and superseded by this Schedule with respect to the
Afterpay Card Services: Section 10.1(b); Section 10.1(d)(i); and
ii.
The following
Sections of the Agreement are amended and restated in their entirety with
respect to the Afterpay Card Services as follows: Section 11.1(a) and 11.1(b) (Refunds):
Section 11.1(a): If Goods are Accepted for Refund (in whole or in part), by you then
any Refund Amount due in relation to the Return is owed by you to Afterpay (via
the Afterpay Card) and not the Customer. You must promptly upon receipt of the
returned Goods (and, at the latest, within three (3) Business Days of such
receipt), process a refund to the Afterpay Card of the associated Afterpay
Purchase(s). All Afterpay Purchases purchased using the Afterpay Card Services
that are Accepted for Refund (in whole or in part) must be refunded via the
Afterpay Card; Afterpay will not accept or process a Refund Amount processed
via the Merchant Portal or the Afterpay API for Afterpay Card Afterpay
Purchases. We reserve the right to hold You liable for the Refund Amounts
associated with the Goods Accepted for Refund if they are refunded via any
payment method or processed via any method except for the Afterpay Card (“Non-Card Refunds”).
Section 11.1(b): When you agree to provide a Customer with a Refund, you will be liable
to us for the Refund Amount. Afterpay will then cancel any future payments due
by the Customer to Afterpay and/or refund to the Customer any amounts paid to
Afterpay. If you process a refund amount to the Afterpay Card that has no
associated Afterpay Purchase, we reserve the right to hold you liable for any
disputed amounts raised by the Customers in relation to such Refund (each an “Unauthorized Refund”).
These
are the Merchant Supplementary Terms (these “Supplementary Terms”) which, together with the Merchant General
Terms of Service (the “General Terms”),
a current version of which can be found at https://get.afterpay.com/merchant-agreement-us-static.html, comprise the terms of the agreement
between us pursuant to which we provide the Services to you. The Supplementary
Terms and the General Terms, together, referred to as the “Agreement”. In the event of any inconsistency or conflict between
the terms and provisions of the General Terms and these Supplementary Terms,
the terms and provisions of these Supplementary Terms shall control. All
capitalized terms not otherwise defined in these Supplementary Terms will have
the meanings given to them in the General Terms.
Merchant entity entering into this Agreement:
Merchant (Full legal name of business): ____________________________
The Agreement will
become effective on the Effective Date and will continue until the date that this
Agreement is terminated in accordance with its terms (the “Term”).
PART D – FEE
AFTERPAY E-COMMERCE
(ONLINE) FEE
(i) The Fee
for each Afterpay Purchase made on your Website(s) = Fee = ____% x Purchase Amount + $0.30.
AFTERPAY CARD SERVICES (IN-STORE) FEE
(ii) The
Fee for each Afterpay Purchase made
using the Afterpay Card Services = ____% x Purchase Amount + $0.30; for greater
certainty, Afterpay will credit you for the Afterpay Interchange Fee with
respect to any such Afterpay Purchases completed using the Afterpay Card
Services that are routed through as credit through VisaNet during this period.
AFTERPAY SERVICES CROSS BORDER TRANSACTIONS
(iii) The Cross Border Transaction Fee for each
Afterpay Purchase = ____% x Purchase Amount.
This means, for example, if the applicable Fee payable
in the AFTERPAY E-COMMERCE (ONLINE) FEE portion of PART D – FEE above is ____% x
Purchase Amount + $0.30, the amount payable by you for each Cross Border
Transaction shall be: ____% x Purchase Amount + $0.30.
CASH APP PAY
E-COMMERCE (ONLINE) FEE
(iv) The Fee
for each Cash App Pay Purchase made on your Website(s) = Fee = ____% x Purchase Amount + $___.
PART E – EXCLUSIVITY
For the purposes of this Part E,
“Competing
Payment Service” means any “buy now, pay later” or “pay by instalments”
electronic payment system, or other short-term consumer finance service,
excluding any such systems or services offered by Visa, Mastercard or American
Express.
“Preferred
Placement” means that our logo is displayed in comparable size to or larger
than, above (when featured top-to-bottom), or to the left of (when featured
left-to-right) that of any Competing Payment Service.
AFTERPAY SERVICES ECOMMERCE
(ONLINE) EXCLUSIVITY
The option marked with an “X” below shall apply to you:
You must not, during the Term, allow
Customers to purchase Goods from your Website using any Competing Payment
Service.
Not applicable
AFTERPAY CARD SERVICES (IN-STORE)
EXCLUSIVITY
The option marked with an “X”
below shall apply to you:
You must not, during the Term, allow
Customers to purchase Goods from your Store using any Competing Payment
Service.
Not applicable