Peri by Solera Merchant Services Payment Processing Services Agreement
This Payment Processing Services Agreement (the “Agreement”), dated _%Today’s Date%_, 2023 (the “Effective Date”), between the undersigned customer (“you”) and Solera Merchant Services, LLC (“we,” “our,” “us”) governs your use of the credit card payment processing products and services, debit card payment processing products and services and related products and services to be provided to you under this Agreement (collectively, the “Services”).
1. The Services.
The Services are intended to be used for business purposes and not for personal, family or household use. The Services allow you to accept payment from your customers via bankcards (“Cards”) validly issued by Visa, Mastercard, Discover, and American Express (the “Card Brands”) and also, if approved, via automated clearing house transactions (“ACH”). We reserve the right to change the availability of any of the Services without notice. You shall not: (a) interfere with or disrupt the integrity or performance of the Services, or the data contained therein; or (b) attempt to gain unauthorized access to the Services.
All or a portion of the Services may be provided by a third party on behalf of SMS (the “Services Subcontractors”).
2. Sub-Merchant Agreement; Provision of Information and Identity/Credit Inquiries.
In order to receive the Services, you will also be required to enter into, and agree to the terms and conditions contained in, a sub-merchant agreement directly with one of the Services Subcontractors (a “Sub-Merchant Agreement”). You will be provided with the Sub-Merchant Agreement as part of your Services onboarding procedures. To the extent that you have any obligations or restrictions under the Sub-Merchant Agreement, you shall also satisfy such obligations towards us, and comply with such restrictions in relation to us, under this Agreement as if they were contained in this Agreement.
You will also be required to (a) provide certain information to us and the Services Subcontractors to satisfy applicable obligations to the sponsoring banks and under Card Brand rules; and (b) authorize us and the Services Subcontractors to perform business and personal credit inquiries, identity-verification inquiries, and any other inquiries we or the Services Subcontractors consider necessary, (c) provide any required information and documentation to the Services Subcontractors’ sponsor banks and/or the Card Brands, and (d) authorize any person or credit reporting agency to compile information to answer such inquires and to furnish that information to us and the Services Subcontractors.
If the scope or nature of your business or the type of products or services you offer changes, you must notify us in writing at least 10 business days prior to any such change.
3. Services Support.
We will be responsible for providing “Tier 1” (first line) support for the Services including, but not limited to, support contact intake and initial issue resolution. Additional or further levels of support may be provided directly by us or by the Services Subcontractors.
4. Fees and Charges; Taxes.
The applicable fees and costs for the Services (“Fees”) are set forth in Annex A, attached hereto.
The Fees for the Services are exclusive of any taxes. When applicable, we will invoice the Fees as agreed-to in Annex A, plus sales tax (including transaction privilege tax, value added tax, goods and services tax, or any similar tax collectible by law by us). We have registered to collect and remit sales tax in the state and local jurisdictions only where we have determined that we are required to collect and remit sales tax. If the applicable Services are invoiced with a shipping address in a jurisdiction where we are not registered to collect and remit sales tax, then you will make your own use tax determination. We will not be responsible for charging and collecting sales or use tax in jurisdictions where we have determined we are not required to collect and remit sales tax. Except as described above, nothing in this Agreement shall be construed to shift the incidence of or liability for any tax between the parties.
5. Data and Intellectual Property.
You hereby grant us a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display data associated with your use of the Services for the following purposes: (a) providing and improving the Services; (b) using the data internally, including but not limited to, data analytics, so long as such data is de-identified or aggregated with other customer data; (c) complying with applicable legal requirements and assisting law enforcement agencies; (d) sharing data about your use of the Services with a Services Subcontractor; and (e) any other purpose for which you provide consent.
All materials or intellectual property provided to you in connection with the Services (“Materials”) are protected intellectual property of us, our Services Subcontractors or other third-party providers. You shall not (and shall not permit any agent or third party) to: (a) copy all or any portion of any Materials; (b) decompile, disassemble, or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the contrary) the Services or Materials, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Services or any Materials or any portion thereof; (c) modify, translate, or otherwise create any derivative works based upon the Services or any Materials; (d) reproduce, distribute, disclose, market, rent, lease, assign, sublicense, pledge, or otherwise transfer the Services or any Materials, in whole or in part, to any third party; (e) obtain access, assist others in obtaining access, or use the Services and Materials other than as permitted hereunder ;or (f) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on the Services or in any Materials.
The Card Brands are the sole and exclusive owners of their trademarks and your use of their trademarks must comply with the rules and regulations of the Card Brands. We are the sole and exclusive owner of our trademarks and your use of our trademarks shall fully comply with our policies and instructions. The Services Subcontractors are the sole and exclusive owner of their trademarks, and your use of their trademarks shall fully comply with their policies and instructions. Your right to use our trademarks, the Services Subcontractor marks and the Card Brand trademarks will cease upon termination of this Agreement, and you agree not to contest the ownership of any such trademarks for any reason.
6. Third Party Service Providers.
You may be using services or software provided by a third party to assist you in processing transactions, including authorizations and settlements, or accounting functions. You must notify us if you use such third-party service providers and ensure that such third parties comply with all applicable rules and regulations. If there is any actual or suspected unauthorized use or access to Cardholder (as defined below) data that is in your or your agent’s possession, you must immediately and within 24 hours notify us and cooperate with us and the Services Subcontractors regarding reasonable requests for information regarding the any such actual or suspected unauthorized use or access.
7. Card Acceptance.
You will honor, without discrimination, any valid Card properly tendered by a person asserting to be the person in whose name the Card is issued (a “Cardholder”) upon the terms and conditions set forth in the Sub-merchant Agreement.
We and the Services Subcontractors will not, and have no obligation to, confirm the validity of the recipient or the underlying transaction pursuant to which funds are transferred. We and the Services Subcontractors assume no liability for any unauthorized transfer request and the attendant transfer of funds, unless and until we receive appropriate and timely notice by you of the unauthorized transfer requests. You must promptly and consistently inspect your transaction history and immediately report any possible errors. All disputes, credits, chargebacks, and related matters shall be governed by the terms and conditions set forth in the Sub-Merchant Agreement.
9. Confidentiality and Data Security.
10. Representations and Warranties.
You represent and warrant to us: (1) that all information you submit to us or a Services Subcontractor relating to your application to use and continued use of the Services is correct, complete, and fully describes and details the nature, type, and scope of the business in which you are engaged; (2) that you are at least 18 years of age; (3) that, if an individual account, you are a sole proprietorship validly existing in one of (i) the United States or its territories, (ii) the United Kingdom and Wales, or (iii) Canada, and, if an entity, that the entity was validly formed, registered and is in good standing in (i) at least one of the fifty United States or its territories, (ii) the United Kingdom and Wales, (iii) or Canada; (4) that you have never been placed on the Mastercard MATCH system or the Combined Terminated Merchant File, and if so, you have disclosed this to us and to the Services Subcontractor; and (5) that all transactions are bona fide and no transaction is fraudulent or involves the use of a Card for any purpose other than the purchase of goods or services from you and does not involve a Cardholder obtaining cash from you unless allowed by the applicable rules and agreed in writing with us or the Services Subcontractor.
You agree to indemnify, defend, and hold us and the Services Subcontractors harmless for and from any and all loss, cost, expense, claim, damage, and liability (including attorneys’ fees and costs, and collections costs) paid or incurred by us or the Services Subcontractors and arising from, caused by, or attributable to, any of the following: (1) any of your acts or omissions with respect to your use of the Services; (2) acting upon any Card transaction processed under this Agreement, (3) any breach of this Agreement by you or your employees, agents or representatives; (4) willful misconduct, fraud, intentional tort, or negligence by you or that of your employees, agents or representatives; (5) action by us exercising any right we have under this Agreement, or any applicable laws, rules or policies.
12. Liability and Disclaimers of Consequential Damages and Warranties.
ANY LIABILITY WE HAVE TO YOU UNDER THIS AGREEMENT, WHATEVER THE BASIS OF THE LIABILITY INCLUDING TORT OR NEGLIGENCE, WILL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF $5,000.
NOTHWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, WE WILL NOT BE LIABLE TO YOU FOR YOUR (A) INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL, OR CONSEQUENTIAL LOSSES OR DAMAGES INCLUDING BUT NOT LIMITED TO LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTERESTS, AWARDS, PENALTIES, FINES, FEES INCLUDING ATTORNEYS’ FEES, COSTS, OR EXPENSES INCLUDING COURT COSTS, AND INVESTIGATIVE COSTS, OF WHATEVER KIND OR (B) FOR YOUR LOSS OF PRODUCT OR SERVICE, LOSS OF USE, LOSS OF REVENUE, PROFITS, OR ANTICIPATED PROFITS, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL (COLLECTIVELY A and B, “CONSEQUENTIAL DAMAGES”), IN EACH CASE REGARDLESS OF NEGLIGENCE OR OTHER FAULT UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CONSEQUENTIAL DAMAGES.
The Services are provided “AS IS” and “AS AVAILABLE.” We make no warranty, express or implied, regarding the Services, and nothing contained in this Agreement will constitute such a warranty. To the extent allowed by law, we disclaim all implied warranties and conditions, express, implied or statutory, including without limitation those of merchantability and fitness for a particular purpose, the implied warranties of title and/or non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. Each party acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation except those specifically set forth herein.
13. Governing Law; Jurisdiction and Waiver of Jury Trial.
This Agreement will be governed by and construed in accordance with the laws of the State of Texas (without regard to its choice of law rules), USA, except where U.S. federal law is applicable. You agree that all performances and transactions under this Agreement between you and us will be deemed to have occurred in the State of Texas, USA and that your entry into and performance of this Agreement will be deemed to be the transaction of business within the State of Texas, USA. You agree that the exclusive jurisdiction and venue for any disputes hereunder shall be an appropriate court located in Tarrant County, Texas, USA. You and we waive any right to trial by jury in any action concerning any rights or disputes under this Agreement.
14. Force Majeure.
No party will be liable to the other party for any failure or delay in its performance of this Agreement, other than failure to pay fees under this Agreement, if such failure or delay arises out of causes beyond the control of, and without the fault or negligence of, such party.
15. Severability and Waiver.
If any provision of this Agreement is held invalid, illegal, void, or unenforceable by reason of any judicial decision, all other provisions of this Agreement shall nevertheless remain in full force and effect. No course of dealing, delay, or failure to enforce any provision or exercise any right under this Agreement by us shall be construed as a waiver or estoppel of such provision or right, nor shall it amend this Agreement or affect the validity of this Agreement or curtail our ability to enforce such provision or exercise such right in the future. All waivers must be in writing and signed by us.
16. Rights and Remedies Cumulative.
The rights conferred upon us in this Agreement are not intended to be exclusive of each other or of any other rights and remedies we have under this Agreement, at law, or in equity. Rather, each right we have at law or in equity will be cumulative and concurrent and in addition to every other right.
17. Entire Agreement.
This Agreement and any amendment or supplement to this Agreement or other referenced agreements (including the Sub-Merchant Agreement), all of which are incorporated into this Agreement, constitutes the entire agreement between the parties, and all prior or other agreements or representations, written or oral, are superseded by this Agreement.
The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.
This Agreement may be assigned by us, but may not be assigned by you without our prior written consent. If we, in our sole discretion, transfer your merchant services accounts to a new Service Subcontractor, you shall promptly execute the applicable new Sub-Merchant Agreement for such new Service Subcontractor.
You are bound by this Agreement as it may be amended or revised at any time upon notice to you. It is your sole responsibility to review and maintain familiarity with this Agreement, and any applicable laws, rules and policies. If you do not agree to any amendments and do not wish to be bound the terms and conditions thereto, you shall provide written notice to us. If you do not agree to the terms of any amendment, your right to use the Services will be terminated.
21. Consent to do Business Electronically; Electronic Signature, Communication and Notices.
You consent to do business electronically, which means that you agree that all agreements and policies, including amendments thereto and documents referenced therein, as well as any notices, instructions, or any other communications regarding the Services, transactions and your agreements with us or the Services Subcontractors (all of which are referred to herein as the “Communications“) may be presented, delivered, stored, retrieved, and transmitted electronically. You must keep us informed of any change in your electronic or mailing address or other contact information. Your electronic signature, including, without limitation clicking “Agree and Continue” or an action of similar meaning or significance, shall be the legal equivalent of your manual signature. You may withdraw your consent to doing business under the relevant agreements and policies electronically at any time by contacting us and withdrawing your consent to transact business electronically. If you do so, this Agreement will be terminated. However, any Communications or transactions between us before your withdrawal of such consent, will be valid and binding. Any written notice to us must be sent to: Solera Merchant Services, LLC, Attn: Customer Service, 1500 Solana Boulevard, Building 6, Suite 6300, Westlake, Texas 76262, and if to you: to the last address shown on our records.
22. Term and Termination.
This initial term of this Agreement shall be effective from the date hereof until the “Initial Expiration Date” set forth on Annex A, attached hereto. This Agreement shall automatically be extended for an additional one- year term at the Initial Expiration Date (and again at each subsequent expiration date) unless you give written notice to us at least 60 days prior to the Initial Expiration Date (or such subsequent expiration date).
In addition, we may terminate this Agreement at our sole and absolute discretion, effective immediately, upon written, electronic, or oral notice to you.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the first date written above.
Solera Merchant Services, LLC