GoDaddy - Commerce Services Agreement (Canada)
This GoDaddy Commerce Services Agreement (this “Service Agreement”) is a legal agreement between GoDaddy Payment Services Canada Inc., a corporation duly organized under the laws of British Columbia (“GoDaddy,” “we,” “us,” or “our”) and the person, legal entity or organization (“you”, “your” or “Sponsored Merchant”) identified on the application that you or your individual representative (“Representative”) completed and submitted (the “Sponsored Merchant Application”). This Service Agreement governs your use of the GoDaddy’s payment services (“Payment Services”) and shall be effective as of the date you begin using the Payment Services. Capitalized terms used in this Service Agreement, but not defined herein are defined in the Universal Terms of Service Agreement (“Agreement”), which sets forth the general terms and conditions of your use of the Site and Services. In the event of a conflict between the provisions of the Agreement and the provisions of this Service Agreement, the provisions of this Service Agreement shall control.
Subject to the terms hereof, we reserve the right, at our sole discretion, to amend, change or modify portions of this Service Agreement at any time, with the exception of changes to the fees hereunder which shall only be effective upon 90 days prior notice. When we do this, we will post the revised Service Agreement on the Site and will indicate the date of such revision. Your continued use of the Payment Services after the date of any such changes constitutes your acceptance of the new terms and conditions of this Service Agreement.
2. REQUIRED REGULATORY DISCLOSURE.
We are required by law to provide to you at the beginning of our agreement with boxes that contain a summary of certain information from the agreement and disclosure of our fees. This information is described in more detail in the body of the agreement and our fees are also set out Information Summary Box below.
Information Summary
Date of Contract | The Service Agreement is effective upon the date you agree to it (by electronically indicating acceptance) and continues so long as you use the Payment Service or until terminated by GoDaddy. |
Acquirer | GoDaddy Payment Services Canada Inc., |
Cancellation of contract and any applicable penalties | You may terminate this Service Agreement by closing your GoDaddy account at any time by following the instructions on our website in your Account Profile. We may terminate this Agreement and close your GoDaddy account at any time for any reason effective upon providing you notice in accordance with this Service Agreement. There are no penalties for termination. However, termination does not alter your liability for processed payments or related chargebacks. |
Complaint handling procedures | Merchant complaints should be submitted to GoDaddy Support. Our complaint handling process is accessible at https://www.GoDaddy.com/help/a-41311. |
Contactless payments | Contactless payments have been enabled at the point-of-sale for the following payment card networks: · Visa · MasterCard · American Express · Discover · Diners · China UnionPay · JCB · Interac |
Information about POS Terminals | This disclosure only applies to users who purchase GoDaddy POS Terminal Products as defined in the Hardware Agreement Purchase Pricing: Point-of-sale equipment may be purchased at then-current pricing specified at the time of your purchase Fees: Fees associated with use of point-of-sale equipment are set forth in the Other Fee Disclosure Box below. Termination: You or we may terminate this Service Agreement at any time by giving at least thirty (30) days’ notice to the non-terminating party, other than in the case of an increase in fees, introduction of a new fee or reduction in interchange that is not passed on to you and of which notice has been provided to you under Section 4.1 below, in which case you may terminate this Service Agreement by providing notice at any time within the applicable ninety (90) day notice period, provided that you may not terminate this Service Agreement in this manner in connection with new fees or fee increases made in accordance with pre-determined fee schedules, if any There are no penalties for termination. However, termination will not affect any provisions that give rise to an ongoing obligation or limitations. |
Information about credit and debit service providers (if different from the acquirer) | |
Transaction return policy | To learn more about how to issue refunds and the terms and conditions associated with refunds, please visit: https://www.GoDaddy.com/help/issue-a-refund-to-my-customer-40540 |
Code of Conduct | The Code of Conduct for the Credit and Debit Card Industry is available at the FCAC's website. |
Statements | Your transaction history will be available to you on your dashboard when you login to your GoDaddy account on our website.. |
Customer Support Contact | Canada (English): 24:7 Support - +18669381119 |
Fee Disclosure
“Card-Not-Present” means that the card was not electronically read. Generally, the card information is manually key-entered (e.g. online payment).
"Card Present" means that payment details are captured in person for a product or service. This can include cards that are physically swiped via a card reader machine or tapped or dipped via a card reader.
|
PAYMENT METHOD |
PRICING |
|
Online (Card Not Present) |
2.7% + $0 CAD |
|
Merchant Keyed (Card Not Present) |
3.3% + $0 CAD |
|
In-Person (Card Present) |
2.3% + $0 CAD |
|
Interac Debit (Card Present) |
$.10 CAD |
Other Fees Disclosure
|
Terminal Services Fees |
n/a |
Any service fees associated with GoDaddy Terminal are included in the processing fees as set forth above or as you and GoDaddy agree. |
3. DESCRIPTION OF SERVICES.
3.1 Payment Services. GoDaddy provides the Payment Services to you so you can accept on your website, mobile phone or in your app certain Cards (defined below) from a person or entity to whom a Card is issued or who is authorized to use a Card (a “Cardholder”). As used throughout this Service Agreement, a “Transaction” means an Authorization request of a Cardholder for a payment from the Cardholder to the Sponsored Merchant submitted by Sponsored Merchant to GoDaddy; and an “Authorization” means the process whereby a Cardholder (or Sponsored Merchant on Cardholder’s behalf) requests permission for a payment method to be used for a particular purchase of Sponsored Merchant’s products or services. Our providing of the Payment Services is subject to the terms of this Service Agreement, all applicable federal, provincial, territorial, state, and local laws, statutes, regulations, ordinances, case law and regulatory guidance, including the Code of Conduct for the Credit and Debit Card Industry in Canada, (collectively, “Applicable Law”), and the Operating Rules (defined below). You agree to abide by, and to use the Payment Services in strict compliance with Applicable Law, the Security Standards (defined below), and the Operating Rules.
3.2 To serve as your payment facilitator, GoDaddy has agreements with Elavon Canada Company (“Processor”), in its capacity as a payment processor and member of certain Payment Networks, and U.S. Bank National Association (“Bank”), in its capacity as a member of a Payment Network. GoDaddy, Processor and/or Bank may collectively be referred to herein as “Acquirer", and any of which may exercise rights belonging to Acquirer hereunder. You agree that we may, without amending this Service Agreement, from time to time contract with another payment processor to provide payment processing functionality and to serve as “Processor” hereunder or another financial institution to provide sponsorship with one or more Payment Networks and to serve as “Bank” hereunder. We discuss our agreements with Processor and/or Bank (all such agreements, the “Processing Agreements”) in more detail below.
3.3 When we refer to a “Card” in this Service Agreement, it means an account (or evidence of an account) that you accept as payment for a good or service that you provide, which account (or evidence thereof) is authorized and established between the Cardholder and an issuer that is a member or customer of one of the following: (a) American Express Travel Related Services Company, Inc., Amex Bank of Canada and their successors or assigns (“American Express”); (b) Discover Financial Services, LLC and its successors or assigns (“Discover”); (c) Mastercard International Inc. and its successors or assigns (“Mastercard”); (d) Visa Inc., Visa Canada Corporation and their successors or assigns (“Visa”); (e) Interac Association, Interac Inc. and Acxsys Corporation and their successors or assigns; (f) and any other card network for the issuing of credit or debit cards, and, for purposes hereof, the Payment Card Industry Security Standards Council (the parties in (a)-(f), collectively, the “Payment Networks”), or (f) representatives or members of a Payment Network. The Cards supported through the Payment Services may change at any time and without prior notice to you.
3.4 GoDaddy is a payment facilitator that provides data processing services for Sponsored Merchants. These services are provided on a business-to-business basis to Sponsored Merchants and it is understood that these services are not for personal, family or household purposes. GoDaddy is not a bank, other financial institution, money transmitter or remitter, however we are registered with the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) as a money services business.
4. FEES AND CHARGES.
4.1 You agree to pay the fees and charges set forth on the fee schedule that appears in the Fee Disclosure Box above or as otherwise provided to you, as these may be modified or amended upon at least ninety (90) days prior notice (the “Processing Fees”). The Processing Fees are qualified by the other terms of this Service Agreement. You agree that such fee schedule constitutes adequate fee disclosure for purposes of the Operating Rules and Applicable Law. In addition, we will notify you at least ninety (90) days prior to a reduction in interchange that is not passed on to you.
4.2. You are responsible for fines and indemnified losses charged by or payable to third parties (including Bank, Processor, and/or any Payment Network), in either case related to or associated with your use of the Payment Services, your Transactions, and/or your processing activity. Acquirer may, at any time, with or without notice, collect such amounts (i) pursuant to an invoice we deliver to you; (ii) by demanding immediate payment; (iii) by debiting the Settlement Account (as defined below) and/or any Reserve Funds (as defined below); and/or (iv) by subtracting such amounts from future settlements. Your failure to pay any Processing Fees, any fines and indemnified losses referenced in Section 4.1 or any other payment default by you under this Agreement, including, without limitation, the failure to pay Chargebacks as required under Section 9.6.1, shall be deemed a “Payments Default” (except to the extent GoDaddy is able to recover such unpaid amounts from the Settlement Account within three (3) business days from the date the payment default has occurred). Upon a Payments Default,, such amount will accrue interest at the lesser of 1.5% per month or the highest amount permitted by Applicable Law.
5. TERM; ACCOUNT TERMINATION.
5.1. Term. This Service Agreement shall become effective as of the date you begin using the Payment Services and shall continue indefinitely unless and until terminated by either you or us. If you elect to present, and we elect to process, Transactions beyond the date of termination, then this Service Agreement will continue to govern such processing activity.
5.2 Termination
5.2.1. You or we may terminate this Service Agreement any time by giving at least thirty (30) days’ notice to the non-terminating party, other than in the case of an increase in fees, introduction of a new fee or reduction in interchange that is not passed on to you and of which notice has been provided to you under Section 4.1 above, in which case you may terminate this Service Agreement by providing notice at any time within the applicable ninety (90) day notice period, provided that you may not terminate this Service Agreement in this manner in connection with new fees or fee increases made in accordance with pre-determined fee schedules, if any.
5.2.2. In addition to any other termination rights, Acquirer may terminate this Service Agreement (or, under clause (i) of this Section, may terminate this Service Agreement as to any Payment Network), suspend and/or limit your use of the Payment Services and/or decline to process particular Transactions at any time and without notice, if: (a) you fail to comply with any term hereof; (b) Acquirer, in its sole discretion, determines that you and/or any affiliated entity and/or individual are violating the Operating Rules and/or Applicable Law and/or are engaging in suspicious, wrongful, fraudulent and/or deceptive conduct and/or other conduct creating a risk of harm and/or loss to Acquirer and/or the Payment Networks (and we may suspend the Payment Services and/or decline to process particular Transactions, with or without notice, during the investigation of any such alleged conduct); (c) you, any guarantor, or any affiliated entity or individual becomes involved in voluntary or involuntary bankruptcy or insolvency proceedings; (d) Acquirer deems you to be financially insecure; (e) you materially alter your business; (f) there is a material change in your processing activity, either from historical processing activity or the activity projected in the Sponsored Merchant Application, or you processed a greater concentration of Cards (e.g., American Express, corporate Cards, and/or international cards) than anticipated; (g) we receive direction from any Payment Network to terminate this Service Agreement; (h) we, in our reasonable discretion, determine that circumstances otherwise warrant immediate termination or suspension; (i) any Payment Network takes any action adverse to our registration or re-registration with such Payment Network; (j) any of the Processing Agreements are terminated; or (k) we determine we are required to terminate this Service Agreement by any of the Processing Agreements or Operating Rules.
5.3. Your obligations for Transactions processed under this Service Agreement, including your obligation to pay refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks, survive any termination of this Service Agreement.
6. YOUR OBLIGATIONS; REPRESENTATIONS AND WARRANTIES.
6.1. Sponsored Merchant Application. You agree that all information provided by you or your Representative in your Sponsored Merchant Application is complete and accurate. The Sponsored Merchant Application is incorporated herein by reference, and forms part of this Service Agreement.
6.2. At the time of you or your Representative’s submission of the Sponsored Merchant Application, and each time you submit a Transaction, you represent and warrant to Acquirer that: (a) you have the full legal power, right and authority to enter into and perform under this Service Agreement; (b) (if you are a legal entity) you are duly organized, validly existing and in good standing under the laws of your place of incorporation; (b) you meet the definition of, and have satisfied the requirements applicable to, “Merchants” (taking into account the fact that you are authorized to accept Cards pursuant to this Service Agreement rather than a merchant agreement), “Sponsored Merchants”, and/or “Submerchants” under the Operating Rules; (c) each statement you or your Representative made on the Sponsored Merchant Application is and remains true and complete, except as has been disclosed in writing to, and approved by, us; (d) your principal place of business is located in, and you have been formed (if you are an entity or organization), under the laws of Canada or a Province or Territory thereof; (e) the Transaction complies with all federal, provincial, territorial, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations, was conducted in accordance with this Service Agreement, and arises from a bona fide sale of goods and/or services by you in Canada for which, to the extent required by the Operating Rules, you obtained Authorization; (f) except as otherwise permitted by the Operating Rules, the goods have been shipped and/or delivered and/or the services performed; (g) and the Transaction represents a valid obligation for the amount submitted and does not involve the use of the Card for any other purpose; (h) the Transaction is not one that you know or should have known to be fraudulent, unauthorized, the product of collusion between the Cardholder and you, or that is otherwise unlawful or impermissible under this Service Agreement, Applicable Law or the Operating Rules; (i) all information and data you provided in connection with the Transaction is true, correct, and accurate; (j) you have taken reasonable steps to ensure the validity of the Card and the identity of the Cardholder; (k) the Transaction is not subject to liens, encumbrances, disputes, set-off, and/or counterclaim; (l) the Transaction has not been previously submitted for processing (except as the same may be permitted under the Operating Rules); (m) you have not disbursed or advanced any cash or quasi cash (including, without limitation, gaming chips or money orders) to the Cardholder in connection with the Transaction; (n) the Transaction is not a refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible; (o) the Transaction does not arise from the dishonour of a Cardholder’s personal cheque; (p) you have the legal right to sell the goods and/or services purchased by Cardholder via the Transaction and are providing, and will continue to provide, high-quality customer service to the Cardholder with respect to such goods and/or services; (q) you have included your “doing business as” name, country location (which name and country is the same as you disclose to Cardholders in connection with a Transaction), the appropriate category code/Card acceptor business code (“MCC”), and your unique merchant identification number (“MID”) in the authorization request/message and clearing record/message for such Transaction; (r) you are not conducting or transacting with a business that may be classified under any of the merchant types listed here: Prohibited Businesses and have correctly identified for us the MCC that most closely reflects your primary business in accordance with applicable MCC guidance from the Payment Networks; (s) you have made no representation or agreement for the issuance of refunds except as stated in your refund policy; (t) you are responsible and financially liable for any dispute or customer service-related issue with a Cardholder, for each Transaction submitted to us, and/or for any disputed Transaction or credit; (u) you have made clear to each Cardholder that you are responsible for the Transaction (including the delivery of goods and/or provision of services that are the subject of the Transaction), customer service and/or dispute resolution related thereto; (v) you are not an internet pharmacy, an internet pharmacy referral site, and/or an outbound telemarketer; (w) you have not had a contract to accept Transactions terminated at the direction of a Payment Network or governmental authority; and (x) any Transaction submitted to us to credit a Cardholder’s account represents a refund for a Transaction previously submitted to us.
6.3. We reserve the right to (i) refuse to process any Transaction if we believe it has been submitted in violation of this Service Agreement, Applicable Law and/or the Operating Rules, may be uncollectible from the Cardholder, and/or is likely to result in a reversal of such Transaction pursuant to the Operating Rules for any reason (a “Chargeback”) and (ii) set your Card acceptance policies.
6.4. Except as specifically provided elsewhere in this Service Agreement, you shall provide full and unrestricted disclosure within 48 hours with respect to any written request by GoDaddy relating to the investigation of any single or mass refund request, Chargeback, suspected fraud matter, unauthorized or unlawful transaction, criminal offence, or any documentation or information required by any relevant Acquirer. Such disclosure shall include but not be limited to the identity of any contracting parties, transaction records, bank records and other financial information relating thereto, and You shall provide such further disclosure and assistance as may reasonably be required by GoDaddy and any relevant law enforcement authorities in order to properly investigate such matters.
6.5. Except as specifically provided elsewhere in this Service Agreement, you shall provide full and unrestricted disclosure within 48 hours with respect to any written request by GoDaddy relating to the investigation of any single or mass refund request, Chargeback, suspected fraud matter, unauthorized or unlawful transaction, criminal offence, or any documentation or information required by any relevant Acquirer. Such disclosure shall include but not be limited to the identity of any contracting parties, transaction records, bank records and other financial information relating thereto, and You shall provide such further disclosure and assistance as may reasonably be required by GoDaddy and any relevant law enforcement authorities in order to properly investigate such matters.
6.6. You will make commercially reasonable efforts not to solicit as potential customers individuals who are less than 18 years old. GoDaddy reserves the right to refuse the Payment Services in transactions with individuals under the age of 18
7. BUSINESS REPRESENTATIVE.
7.1. You and your Representative individually affirm to GoDaddy that (a) your Representative is authorized to provide information on your behalf and to bind you to this Agreement; and (b) your Representative is an executive officer, senior manager or otherwise has significant responsibility for the control, management or direction of your business. GoDaddy may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority.
7.2. If you are a sole proprietor, you and your Representative also affirm that you and your Representative are personally responsible and liable for your use of the Services and your obligations to Cardholders, including payment of amounts you owe under this Agreement.
8. AUTHORIZED USERS.
8.1. To the extent you are granted electronic access to any of Acquirer’s systems or portals, you are responsible for: (a) ensuring that only authorized users of such systems or portals access the same; (b) keeping all logins, user names, and passwords confidential; and (c) promptly notifying us of any unauthorized access of such logins, user names, or passwords; and (d) all actions taken by anyone using such access, logins, user names, or passwords, even if such you did not authorize such actions.
8.2. You may not, and shall ensure that none of your authorized users: (a) access or use the Payment Services, or any services provided by Processor, for any purpose other than your internal business purposes and as permitted hereby, (b) modify, reverse engineer, disassemble, and/or decompile any part of the Payment Services, or any services or materials provided by Processor, (c) knowingly transmit any data that contains software viruses, time bombs, worms, Trojan horses, spyware, disabling devices, malicious code, or other harmful or deleterious computer code, files and/or programs to or through the Payment Services, or any services provided by Processor, (d) knowingly interfere with or disrupt the servers or networks connected to or providing the Payment Services, or the services of Processor, (e) remove, change or obliterate the copyright, trademark or other proprietary protection legends or notices that appear in connection with access to or use of the Payment Services, or services or materials provided by Processor, a/or (f) copy, re-sell, transfer, republish, download, frame or transmit the the Payment Services, or any services or materials provided by Processor, including in order to act as a consultant for any third party, or otherwise allow any third party to use or access the Payment Services and/or any services provided by Processor.
8.3. You and your authorized users will make commercially reasonable efforts to avoid linking to websites and services that are denoted as posing high risk by reputable site-rating authorities, including McAfee, Symantec and Google.
8.4. You are responsible for the acts and omissions of your owners, employees, consultants, contractors, agents, officers, and directors, including any unauthorized access to or use of the Payment Services. Without limiting the preceding sentence, such acts and omissions will be viewed as your acts and omissions for purposes of determining if you have breached this Service Agreement and/or violated the Operating Rules, Applicable Law and the availability of any related right or remedy available to Acquirer.
9. PROCEDURES FOR TRANSACTIONS
9.1. You agree to submit to us for processing all data or information resulting from a Transaction (including any Card Information (defined below)) (collectively “Transaction Information”) you believe to be authorized by a Cardholder. You must submit this Transaction Information to us contemporaneously with the completion of the related Transaction and in such a way to enable us to comply with the Processing Agreements and Operating Rules. You must submit such information to us, along with any other information that may reasonably be requested in connection with a Transaction, in such form as we may specify from time to time. You understand that your failure to submit such Transaction Information on a timely basis may (a) result in increased fees associated with the Transaction(s) (such as higher interchange fees), and you agree to pay any such fees if assessed; and/or (b) compromise your ability to be paid for the Transaction(s). You agree to submit Transactions to us in such a way as to enable us to comply with Chapter 2, Paragraph 2 (Deposits) of Processor’s Operating Guide (as amended) and any similar successor provisions.
9.2. You may not submit for processing: (a) any Transaction that does not involve you and/or that does not originate from an interaction between you and a Cardholder intending to make a purchase from you; (b) any Transaction for which you do not receive an Authorization code from us; or (c) any Transaction that results in a transaction outside of your normal course of business as reflected on the Sponsored Merchant Application. All Transactions are subject to review for risk and compliance purposes and can be delayed or postponed at GoDaddy’s sole discretion. We reserve the right to refuse to process any Transaction if there is reason for Acquirer to believe that it has been submitted in violation of this Service Agreement.
9.3. Acquirer may, at any time and in its sole discretion, impose a cap or limit, either per transaction or on an aggregate basis, on the dollar amount of the Transactions it will process for you based on your projected sales volume, as you or your Representative submitted on the Sponsored Merchant Application or in subsequent communications.
9.4 Settlement Account.
9.4.1. You must maintain an account acceptable to us (the “Settlement Account”) at a bank or depository institution acceptable to us (“Depository Bank*”). You may change the Settlement Account only if you give us at least fifteen (15) days’ prior written notice of the proposed change and we approve the change in writing. If you change the Settlement Account other than in accordance with this Service Agreement, Acquirer may not be able to settle Transaction proceeds or may misdirect and/or lose such proceeds. You will be solely responsible for the same.
9.4.2. The Settlement Account is for credits and debits related to Transactions, refunds, Chargebacks, Processing Fees, indemnified losses, and/or other amounts payable to (or permitted to be withheld by) Acquirer and/or the Payment Networks. You authorize Acquirer to initiate debit and/or credit entries to the Settlement Account, including through electronic funds transfer, direct deposit, pre-authorized debit (as further described below) and/or via wire transfer, for any of the foregoing. Such authorization shall remain in place until the later of termination of this Service Agreement or your satisfaction of all obligations to Acquirer hereunder, as reasonably determined by Acquirer. You must maintain sufficient funds in the Settlement Account to prevent the occurrence of insufficient funds. You are solely liable for all fees, costs, and overdrafts associated with the Settlement Account.
9.4.3. We reserve the right, in our sole discretion, to at any time require you and Depository Bank to enter into control agreement with GoDaddy with respect to the Settlement Account in form and substance reasonably satisfactory to GoDaddy. We agree not to give any instructions directing the disposition of funds from time to time credited to the Settlement Account except in the case of a Payments Default or as otherwise authorized under this Agreement. You will not grant control of the Settlement Account to any person or entity other than GoDaddy.
9.5. Settlement.
9.5.1. Except as elsewhere provided herein, after receiving funds for approved Transactions, we will provisionally fund, or will direct Processor and/or Bank to provisionally fund, the Settlement Account.
9.5.2. You agree that settlements under this Agreement will generally be on a net basis (i.e., the Settlement Account will be funded with the settlement funds, if any, that remain after subtracting (a) refunds, Chargebacks, Reserve Funds, Processing Fees, indemnified losses, and other amounts payable to Acquirer; and (b) any amount authorized to be retained under this Agreement). But if we fail to subtract such amounts, it does not relieve you of any liability or responsibility for them. You acknowledge that all payments and credits provided to you are provisional and subject to suspension, revocation, Chargebacks, and/or other adjustments in accordance with this Service Agreement and the Operating Rules.
9.5.3. For settlement funds that Bank and/or Processor intends, or is required by the Processing Agreements, to fund the Settlement Account, you hereby irrevocably authorize us to deliver instructions to Bank and/or Processor for the disposition of settlement funds and/or the amount and timing of payments to be made to the Settlement Account including, without limitation, instructions to (a) withhold from settlement funds any amount that Acquirer determines are entitled to be withheld hereunder (including amounts for the Processing Fees or Reserve Funds) and (b) pay remaining settlement funds, if any, to the Settlement Account.
9.5.4. You acknowledge and agree that: (a) Acquirer shall have no liability or responsibility for delays in the transmission and/or deposit of funds and/or your failure to receive funds where delay or failure is in any way attributable to you or any third party, including third-party banks, depository institutions, or the Payment Networks; (b) this Service Agreement (and not marketing and/or other materials) governs the transmission and/or deposit of funds, including the time thereof; (c) any fixed timelines with respect to the same are subject to the other terms hereof; and (d) we are not liable or responsible for any delays in transmission or deposit of funds due to your failure to receive funds where the delay or failure is in any way attributable to Processor or Bank.
9.5.5. You agree to reimburse Acquirer upon demand for any misdirected deposits, duplicate deposits, and/or inadvertent overpayments into any of your bank accounts. In addition, Acquirer may deduct such amounts pre-authorized debit (as described below) and/or other means from your Settlement Account and/or the Reserve Funds (as defined below).
9.6. Chargebacks.
9.6.1. You are fully responsible for, and must immediately pay, all Chargebacks and any and all fees, charges, and liability assessments related to Chargeback(s) associated with your Transactions. If you have reason to dispute or respond to a Chargeback, then you must do so by the date provided on the applicable Chargeback notice. We, Processor, and Bank have no independent obligation to investigate or attempt to obtain a reversal or adjustment of any Chargeback. If Acquirer, in its sole discretion, determines that you are experiencing excessive Chargebacks, then it may (a) with notice, increase the Processing Fees; (b) without notice, establish or increase the Reserve Funds; (c) without notice, suspend the Payment Services; and/or (d) without notice, terminate this Service Agreement. You may not ask or require that a Cardholder waive a right to dispute a transaction.
10. HOLDBACK RIGHTS; CONDITIONAL APPROVAL AND DORMANT ACCOUNTS.
10.1 This section allows us to withhold funds from you in some situations. If Acquirer, at any time during the term of this Service Agreement, determines in its commercially reasonable discretion that it may be prudent or necessary to do so (a) as a result of any unusual, suspicious, and/or risk-exposing activity (including, without limitation, money laundering, invalid sales transactions, counterfeit transactions, altered and/or duplicate transactions, activity related to a suspected Security Incident or other breach of Security Standards, and/or excessive Chargebacks) and/or (b) to enable us and/or Processor to exercise our or its rights under, and in accordance with, any of the Processing Agreements, then Acquirer may, without notice, hold funds otherwise payable to you for such period as Acquirer, in its commercially reasonable discretion, deems necessary, to provide security against liability for such activity, plus other costs or liabilities reasonably anticipated to be due to Acquirer related to the same. Without limiting any other term hereof, Acquirer may use funds held pursuant to this Section to fund the Reserve Funds (defined below).
10.2. GoDaddy can conditionally approve your application and enable you to start accepting payments up to $1,500 or for 30 calendar days, whichever comes first, while we complete know-your-business (“KYB”) and know-your-customer (“KYC”) reviews. During this time, we reserve the right to hold the funds and release them upon successful verification of KYB and KYC. If either KYC or KYB fail, or if you do not provide additional information requested, we reserve the right to refund the Cardholders and terminate your account.
10.3. Dormant Accounts. If you leave any funds dormant in an account either because you do not complete or fail KYC and/or KYB reviews, you do not provide us with your banking details, and/or for any other reason, we may be required by Law to deem the funds to be abandoned by you, we may charge you a dormant account fee for our handling of the dormant funds and/or deliver them to various government agencies as required by law. To the extent required by Law, we will attempt to provide you Notice if we hold funds payable to you in an account beyond the applicable dormancy period for abandoned property. If we are unable to contact you, we will treat the funds in your account to be abandoned and will deliver them to the appropriate government authority.
11. RESERVE FUNDS, SECURITY INTEREST, CONTRACT FOR THE ADVANCE OF CREDIT AND PRE-AUTHORIZED DEBITS (“PADs”).
11.1. Acquirer may require at any time (including at the time of termination of this Service Agreement) that funds be placed in one or more non-segregated, non-interest-bearing accounts established by Acquirer in accordance with this Service Agreement (the “Reserve Funds”). The purpose of the Reserve Funds is to ensure that you satisfy your obligations or anticipated obligations hereunder. That includes, without limitation, your obligations for refunds, Chargebacks, Processing Fees, indemnified losses, and/or other amounts payable to Acquirer or the Payment Networks. Acquirer may increase at any time (including at the time of termination of this Service Agreement) the amount of Reserve Funds. Acquirer has complete discretion regarding Reserve Funds-related decisions. Reserve Funds may be funded by (a) debiting the amount of Transactions that would otherwise be payable to you under this Service Agreement; (b) demanding funds from you; and/or (c) debiting the Settlement Account. If Acquirer makes a demand for funds pursuant to this Section, you must transfer the amount of funds demanded within eight (8) business hours of receipt of such demand. Reserve Funds may be used at any time to satisfy your obligations to Acquirer under this Service Agreement, including, without limitation, refunds, Chargebacks, Processing Fees, indemnified losses, and/or other amounts payable to Acquirer and/or the Payment Networks. Acquirer may continue to hold Reserve Funds until the one-year anniversary of the later of termination of this Service Agreement or the last processing activity that occurs on your account (including any Transaction or Chargeback) or for such longer time as Acquirer reasonably determines is necessary to satisfy your current or anticipated obligations under this Service Agreement, the Operating Rules, and/or Applicable Law. Until the expiration of that period, you have no ownership interest in and/or right to the Reserve Fund, which are the exclusive property of Acquirer. You also have no right to receive interest on any funds maintained in any of the Reserve Funds, which is also the exclusive property of Acquirer.
11.2. Without in any way limiting the previous two sentences, and merely as an additional form of security, you hereby further grant us a security interest in (i) the Reserve Funds and all funds therein; (ii) the proceeds associated with any Transaction and (iii) all fixtures and personal property of every kind and nature including all accounts (including health-care-insurance receivables), goods (including inventory and equipment), documents (including, if applicable, electronic documents), instruments, promissory notes, chattel paper (whether tangible or electronic), letters of credit, letter-of-credit rights (whether or not the letter of credit is evidenced by a writing), securities and all other investment property, general intangibles (including all payment intangibles), money, deposit accounts, and any other contract rights or rights to the payment of money; and all proceeds (as such term is defined in the Uniform Commercial Code (the “UCC”)) of the foregoing. You hereby authorize us to file a UCC-1 financing statement for the benefit of GoDaddy at any time and from time to time in any relevant jurisdiction. We may exercise all the rights and remedies of a secured party upon default under the UCC. We may enforce our security interest(s) without notice or demand as permitted under the UCC. We may enforce our security interest(s) without notice or demand. The security interest(s) granted under this Service Agreement will continue after termination of this Service Agreement until you satisfy all your obligations to Acquirer, as reasonably determined by us. You further agree to execute and deliver such instruments and documents as may be reasonably requested to confirm and perfect the security interest(s) granted by this Service Agreement.
11.3. Contract for the Advance of Credit: You agree that this Service Agreement is a contract for the advance of credit to you within the meaning of Section 11.01(b) of the Companies' Creditors Arrangement Act (Canada) and within the meaning of Section 65.1(4)(b) of the Bankruptcy and Insolvency Act (Canada) and cannot be assigned by you in the event of a voluntary or involuntary bankruptcy or insolvency proceeding relating to you. You hereby acknowledge that but for the agreement in the immediately preceding sentence, Acquirer would not have entered into this Service Agreement.
11.4. Pre-Authorized Debits (“PADs”): You authorize us and our respective vendors and agents to initiate debit and credit entries to the Settlement Account, or any other account maintained by you at any institution that is a member of the Canadian Payments Association, doing business as Payments Canada, all in accordance with this Service Agreement. You agree that any withdrawal by us and our vendors and agents in accordance with this Service Agreement are PADs for business purposes, as defined under Rule H1 of Payments Canada. You hereby waive the right to receive advance notice from us and our vendors and agents of any and all such debits. This PAD authorization will remain in effect after termination of this Services Agreement and until all of your obligations to us have been paid in full. If you change the Settlement Account, this PAD authorization will apply to the new account and you shall provide us in writing such information regarding the new account as we deem necessary. Such new account shall thereafter be and become the “Settlement Account” for the purpose of this Service Agreement. It may take us up to ten (10) business days after receipt of a written notice from you to reflect in our system any change to the Settlement Account. If you change the Settlement Account, you agree that you are responsible for all costs incurred by us in connection with your decision to change the Settlement Account. You may revoke this PAD authorization upon thirty (30) days’ prior written notice to us, but any such revocation shall constitute a material breach of this Agreement. You may obtain a sample cancellation form, as well as further information on your right to cancel a PAD authorization by contacting your financial institution or by visiting the Payments Canada website. You have certain recourse rights if any debit does not comply with this PAD authorization. For example, you have the right to receive reimbursement for any debit that is not authorized or is not consistent with this PAD authorization. To obtain more information on your recourse rights, you may contact your financial institution or Payments Canada.
12. DATA PRIVACY.12.1. Our privacy statement is located on our Site at https://www.GoDaddy.com/en-ca/legal/agreements/privacy-policy and is incorporated herein by reference, and is applicable to the Payment Services provided under this Service Agreement. The privacy statement sets forth your and our rights and responsibilities with regard to your personal information.
12.2. You acknowledge and agree that in the course of your use of the Payment Services, we will capture certain transaction and user information (collectively, the “Card Information”). You agree to provide us, and we shall capture, only the Card Information that is required for us to provide the Payment Services. You represent and warrant that you have provided notice to, and obtained consent from, any third party data subjects whose personal information you supply to us as part of the Payment Services with regard to: (i) the purposes for which such third party's personal information has been collected, (ii) the intended recipients or categories of recipients of the third party's personal information, (iii) which parts of the third party's personal information are obligatory and which parts, if any, are voluntary; and (iv) the third party’s rights to access, rectification, and deletion, if applicable. You further agree to provide such notice and obtain such consent with regard to any third-party personal information you supply to us in the future. We are not responsible for any consequences resulting from your failure to provide notice or receive consent from such data subjects nor for your providing outdated, incomplete or inaccurate information.
13. CONFIDENTIALITY.
13.1. "Confidential Information" means any confidential, trade secret or proprietary information (which may be business, financial or technical information) disclosed by one party to the other under this Agreement that is marked confidential or if disclosed orally designated as confidential at the time of disclosure or that should be reasonably understood to be confidential. Confidential Information shall include, but shall not be limited to, information regarding pricing techniques, fees, equipment, services, processes, procedures, marketing, and/or business development plans, source code, technical information, personnel information, and/or trade secrets.
13.2. Each party (a) shall not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Service Agreement and for purposes of performing this Service Agreement, and (b) shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance. Each party further agrees to use the other party's Confidential Information only for the purpose of its performance under this Service Agreement. In addition, the receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects which embody Confidential Information, and which are provided to the receiving party hereunder.
13.3. The obligations set forth in Section 13.2 do not apply to information that (a) is in or enters the public domain without breach of this Service Agreement, (b) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (c) the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information, (d) is disclosed with the written approval of the disclosing party, or (e) is disclosed five (5) years from the effective date of termination or expiration of this Service Agreement. Each party may disclose Confidential Information of the other party (a) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or (b) on a "need-to-know" basis under an obligation of confidentiality substantially similar in all material respects to those confidentiality obligations in this Section to its legal counsel, accountants, contractors, consultants, banks and other financing sources.
14. DATA USE.
14.1. To the extent permitted by Applicable Law and the Operating Rules, you authorize Acquirer to disclose information regarding you to any third party who has asked for such information, and whom Acquirer determines has a legitimate business need to know such information to facilitate the purpose of this Service Agreement. You authorize Acquirer to disclose Card Information to the Payment Networks as necessary to facilitate the provision of Payment Services. You also authorize Acquirer to share information such as volume processed, risk holds, unrecovered chargebacks and interchange and assessment costs to be able to pay third parties their referral commissions for referring you over to us.
14.2. Notwithstanding anything else in this Service Agreement, all Card Information, Transaction Information, and/or information related to you, may be used by Acquirer and its respective affiliates and designees: (a) to provide the Payment Services; (b) for administrative and monitoring purposes; (c) to enhance or improve any of Acquirer’s products or the Payment Services; (d) in the course of any sale or reorganization of any of Acquirer’s businesses; (e) to comply with Applicable Law; (f) for disclosure to credit reporting agencies and other financial institutions; and/or (g) as otherwise permitted by Applicable Law.
15. DATA SECURITY.
15.1. You agree and acknowledge that you will: (a) comply with the rules, regulations, and/or standards adopted or required by the Payment Networks relating to data security and the protection of Card Information and Transaction Information (collectively, the “Security Standards”), including, without limitation, Payment Card Industry Data Security Standards, Visa’s Cardholder Information Security Program and Payment Application Best Practices, Mastercard’s Site Data Protection Program and POS Terminal Security Program, American Express’s Data Security Operating Policy, Discover’s Information Security & Compliance Program, and/or any successor rules, regulations and/or standards, in each case, as any of the same may be amended from time to time; (b) maintain systems and media containing any Card Information and Transaction Information in a secure manner that prevents unauthorized access to or disclosure of any such information; and (c) not use or permit others to use information obtained through the use of the Payment Services for any purpose other than in conjunction with the Payment Services and in a manner described in the documentation for the Payment Services.
15.2. You also agree to provide proof of compliance to Acquirer or any Payment Networks as required and/or upon request, including, without limitation, by attestation and/or an examination of your systems to validate such compliance. The costs of any such attestation and/or examination shall be your sole responsibility.
15.3. To the extent you use any third party to process, store, receive, transmit, and/or otherwise have access to Card Information and/or Transaction Information, you assume full responsibility and liability for such third-party’s compliance with this Service Agreement, the Security Standards, and Applicable Law. We, Processor, and Bank shall have no liability for the acts or omissions of such third parties, which are your sole responsibility and liability. You further agree to notify us in writing of the identity of all such third parties and to ensure that such third parties are properly registered, if required to be so, with the Payment Networks. You acknowledge that Acquirer has the right to require any such third parties to undergo testing, approval, and certification by Acquirer, and may terminate any such third parties’ access to or ability to integrate with any of Acquirer’s respective systems at any time.
15.4. If you discover and/or any time have reason to suspect that an event has occurred that results, or could result, directly or indirectly, in the unauthorized access or disclosure of Transaction Information and/or Card Information (each a “Security Incident”), you must immediately notify us at risk@payments.GoDaddy.com and fully cooperate, at your expense, with all forensic examinations and remediation and mitigation procedures requested by any Payment Network or Acquirer. Furthermore, if you are undergoing a forensic investigation at the time you or your Representative submits the Sponsored Merchant Application, you must fully cooperate with the investigation until completed. The costs of such examinations, processes, and any notification of Cardholders pursuant to Applicable Law or the Operating Rules are exclusively your responsibility.
15.5. You acknowledge that failure to comply with the Security Standards or the occurrence of any Security Incident on your systems or those of any third party referenced in Section 14.3 may result in liability assessments (sometimes referred to as “penalties” or “fines”) by the Payment Networks, legal liability, and expenses (including consultant, examiner, and/or attorney fees). Notwithstanding, you agree to fully indemnify us, Processor, and Bank and their respective officers, directors, employees, and agents, and to hold them harmless from any such costs, liability assessments, legal liabilities, and expenses, as well as the costs and fees associated with any claims or demands made by Cardholders, card issuers, Payment Networks, governmental agencies, and/or any third parties associated with your failure, and/or the failure of any third party referenced in Section 14.3, to comply with the Security Standards or the occurrence of any Security Incident.
15.6. You agree to keep your login name and password confidential. You shall notify us immediately upon learning of any unauthorized use of your username or password. You shall be solely responsible for (i) periodically updating your passwords for access to the Payment Services, and (ii) creating passwords that are reasonably "strong" under the circumstances. A "strong" password is at least six characters long, does not contain all or part of the users account name, and contains at least three of the four following categories of characters: uppercase characters, lowercase characters, base 10 digits, and symbols found on the keyboard (such as !, @, #). Strong passwords should be generated in such a way that knowledge of one does not lead to knowledge of another.
15.7. You agree to keep your MID confidential. As a security measure, you may be requested to identify yourself by your MID when contacting Acquirer. Any person correctly identifying your MID is presumed by Acquirer to have authority to make changes to your merchant account. You are solely liable for any damages you sustain as a result of the disclosure of your MID to any unauthorized persons.
16. OBLIGATION TO REPORT STATEMENT DISCREPANCIES.
16.1. You shall be solely responsible for reviewing your statements from Acquirer (including statements provided online) and for reporting to us in writing, within thirty (30) days of your receipt of any statement, any problems and/or irregularities with your statements—including, without limitation, underpayments, overpayments, and/or other discrepancies of any items, fees, charges, and/or liability assessments reflected on such statements and/or related to the period covered by such statement, including, without limitation, discrepancies between the volume and/or value of Transactions that you actually processed during the period indicated by the statement. Statements provided online shall be deemed received the first day they are available online.
16.2. YOU ACKNOWLEDGE AND AGREE THAT NEITHER GoDaddy, PROCESSOR NOR BANK SHALL BE LIABLE AND/OR OTHERWISE RESPONSIBLE TO YOU, AND SHALL HAVE NO OBLIGATION TO REIMBURSE YOU, FOR ANY UNDERPAYMENT TO YOU OR OTHER DISCREPANCY THAT IS NOT REPORTED TO US IN WRITING WITHIN THIRTY (30) DAYS OF YOUR RECEIPT OF THE APPLICABLE STATEMENT.
17. UNDERWRITING, MONITORING, AND AUDITING RIGHTS.
17.1. You agree to promptly furnish Acquirer with information and documents reasonably necessary to verify information provided in your Sponsored Merchant Application, evaluate your financial condition and/or business practices upon request. Furthermore, with prior notice and during your normal business hours, any of Acquirer’s respective representatives may visit your business premises to inspect your operations, activities, and/or books and records to the extent necessary to evaluate your compliance with this Service Agreement and/or to the extent necessary for us to meet our obligations under the Processing Agreements and/or for Acquirer to meet its obligations under the Operating Rules.
17.2. You, on behalf of yourself and your Representatives, principals and beneficial owners, acknowledge and agree that Acquirer may request and obtain external reports, including credit reports and background checks from credit reporting agencies, in connection with the consideration of your Sponsored Merchant Application or at any time thereafter. You further acknowledge that Acquirer may reject your Sponsored Merchant Application in its sole and absolute discretion and that Acquirer shall not have any liability associated with such rejection.
17.3. You agree to provide us advance written notice of any actual or anticipated (a) material change in your products and/or services, business practices, and/or the manner in which you accept Cards; (b) change to your legal form, legal name, trade name, mailing address, telephone number, tax identification number; and/or (c) changes to anticipated Transaction amounts and/or volume.
17.4. You agree to provide any information or documentation (a) Acquirer believes is necessary to meet its obligations under any law or regulation to which Acquirer is subject, or (b) we believe we are required to diligence, obtain and/or verify under any the Processing Agreements and/or under the Operating Rules (including the names and country of domicile of each of your principals and reports of all Transactions). You must provide such information to the requesting party within twenty-four (24) hours of a request for the same. You must also, on an ongoing basis (and at least quarterly), provide us with each of your office addresses, uniform resource locators, and/or “doing business as” names, as well as complete descriptions of all goods and/or services you provide.
18. REPORTING.
You acknowledge that, under the Operating Rules of the Payment Networks, some of your activity and/or terminations of sponsored merchant processing agreements may result in Acquirer’s reporting sponsored merchants and their principals to the Payment Networks for inclusion on a terminated merchant file (e.g., the “MATCH” list). You, on behalf of yourself and your principals, hereby consent to such reporting and any other action by us that we believe is required by the Operating Rules and waive any claim related to the same, even in instances where you or your principals believe that reporting to have been improper or in error.
19.1. You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures that we provide in connection with this Service Agreement and your use of the Payment Services by posting it to our website, text messaging or emailing it to the address listed in the Sponsor Merchant Application. You agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies, whether or not you choose to view or print or download the disclosure or other notification. Such disclosures are considered received by you within 24 hours of the time posted on our website, or within 24 hours of the time emailed to you unless we receive notice that the email was not delivered.
19.2. Notices under this Service Agreement to us, Processor and/or Bank must be in writing and delivered via hand delivery or via carrier that provides a tracking number and/or other proof of delivery. Notices to us, Processor, and/or Bank must be sent to the addresses respectively designated in the Sponsored Merchant Application for those entities, and will be effective upon receipt.
19.3. Notice of Assignment of Payments to Factoring Companies. In the event you assign any amounts owed to you under this Service Agreement (“Factoring”) to a third-party factoring company or other party providing the same or similar services (“Factoring Company”), you agree to promptly provide GoDaddy with written notice of such Factoring (“Notice of Factoring”) including the following information:
- name of Factoring Company;
- specifically identify the receivables that have been assigned; and
- notice must be authenticated (as required under the UCC, as defined below).
Any Notice of Factoring from you or your Factoring Company must be sent to the following address/email address/contact: payments-risk@GoDaddy.com (“Required Recipient”). GoDaddy is not obligated to honor or comply with any Notices of Factoring that are not delivered to the Required Recipient. We will use commercially reasonable efforts to respond to Notices of Factoring within three (3) business days.
20. PROVISIONS SPECIFIC TO THE PAYMENT SERVICES.
20.1. Marks and Intellectual Property.
20.1.1. You shall display the Payment Networks’ respective logos, marks, advertising and promotional materials only in accordance with the Operating Rules and cease displaying such logos, marks, advertising and promotional materials in accordance with the Operating Rules, including upon termination of this Service Agreement or at the direction of any Payment Network. You acknowledge that all such logos, marks, advertising, and promotional materials used by any Payment Network are the sole and exclusive property of such Payment Network. You agree not to challenge their ownership of such property and that they may prohibit your use of such property at any time and for any reason, with or without notice. Further, from time to time, we may provide you with materials that include our name, logo, trademarks, and/or service marks. You shall only use such materials as expressly permitted by us and shall return to us such materials upon the termination of this Service Agreement for any reason and/or upon our earlier request at any time. You shall not at any time represent, directly and/or by implication, that your goods and/or services are endorsed, sponsored, and/or guaranteed by Acquirer or any Payment Network. This Service Agreement shall not confer on you any license or proprietary rights regarding any patent, trademark, copyright, trade secret, and/or intellectual property of Acquirer or any Payment Network.
20.1.2. Acquirer may require any changes to your website that it deems necessary and/or appropriate to ensure that you remain in compliance with the Operating Rules governing the use of the intellectual property described herein.
20.1.3. All of our computer programs, trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Payment Services are and will remain our sole and exclusive property. We own all rights, title, and interest, including all intellectual property rights, in and to any refinements or improvements to the same, even when such refinements or improvements result from your request.
21. OPERATING RULES AND RELATED OBLIGATIONS.
21.1. This Service Agreement is subject to all of the Payment Networks’ respective rules, bylaws, programs, and regulations, as the same are amended from time to time, including, without limitation, the provisions thereof governing and/or otherwise applicable to “Merchants,” “Sponsored Merchants,” and/or “Submerchants” (collectively, the “Operating Rules”). The Payment Networks have the right to enforce the Operating Rules. In the event of any inconsistency between this Service Agreement and the Operating Rules, the Operating Rules shall take precedence over this Servicing Agreement. Some of the Operating Rules for Visa and Mastercard are presently available online at usa.visa.com and www.mastercard.us, respectively. The American Express Merchant Operating Guide is available online at https://www.americanexpress.com/merchantopguide. The Operating Rules are evolving constantly, and it remains your obligation to remain compliant with the Operating Rules. Without limiting the foregoing:
21.1.1. You may not take any action that could interfere with, or prevent the exercise of, action by any Payment Networks to (a) enforce any of the Operating Rules, (b) prohibit you and/or us from engaging in any activity such Payment Network deems could injure or create a risk of injury to the Payment Networks, Processor and/or their respective affiliates, including reputational injury, or that could adversely affect such Payment Network or the confidential information thereof.
21.1.2. If you process, or expect to process, more than $1,000,000 in Mastercard Transactions per year or $1,000,000 in Visa or $100,000 in Discover Transactions per year (in each case or such other amount identified in the Operating Rules), you acknowledge that Processor is a party to this Service Agreement, and that GoDaddy will continue to provide services including facilitating payments, billing you for your fees, providing reports to help you reconcile Transactions and providing customer support amongst other services.
21.1.3. Subject to Applicable Law and the Operating Rules, you agree to accept all categories of Visa and Mastercard Cards unless you or your Representative told us on the Sponsored Merchant Application of your election to limit such acceptance. Any limitations on acceptance must comply with Applicable Law and the Operating Rules. You may not engage in, and shall maintain a policy against engaging in any practice that discriminates against or discourages the use of any Card in favor of another Card.
21.1.4. Except to the extent permitted by Applicable Law, the Operating Rules and us, you may not (a) apply an additional charge for accepting Cards as an alternative to other payment methods (referred to at times as a “surcharge”); or (b) set minimum or maximum transaction amounts.
21.1.5. You must prominently display and disclose to Cardholders at all times (a) your name; and (b) your physical address.
21.1.6. You must maintain a written refund policy and must disclose such policy to us and your customers (including customers making purchases online by displaying such policy on your website) consistent with Applicable Law and the Operating Rules. Any proposed changes to the refund policy must be submitted to us at least thirty (30) days prior to making such change. The amount of any refund may not exceed the original Transaction except to the extent you agree to reimburse a Cardholder for return shipping.
22. TAXES.
You are solely responsible for determining, collecting, and remitting any and all taxes assessed, incurred, or required to be collected, paid, or withheld, in connection with your use of the Payment Services. You are solely responsible for collecting, withholding, reporting and correctly remitting any taxes to the appropriate government authority. GoDaddy is not obligated to, and will not, determine whether taxes apply, or calculate, collect, report or remit any taxes to any government authority arising from your use of the Payment Services. All fees or charges payable by you as set forth in this Service Agreement do not include goods and services tax, harmonized sales tax, Québec sales tax, value added tax, retail sales taxes and other similar taxes whether now imposed or to be imposed in the future. If any such tax is found to be applicable, the appropriate amount of tax shall be added to and shall be payable by you at the same time and upon the same terms as apply to the fees and other charges.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PAYMENT SERVICES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE EXTENT PERMITTED BY LAW, GoDaddy DISCLAIMS ALL IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. GoDaddy MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO THE USEFULNESS, QUALITY, SUITABILITY, OR COMPLETENESS OF THE SERVICES OR THAT THEY WILL BE ERROR-FREE, UNINTERRUPTED OR FREE FROM DEFECT.
24.1. You must indemnify, defend and hold harmless GoDaddy, Processor, and Bank, along with each of its or their respective agents, officers, directors, employees, and affiliates, from and against any and all claims, demands, damages, judgments, liability assessments, fines, penalties, costs, and expenses (including reasonable legal fees) suffered or incurred by any of them arising out of: (a) your acts and/or omissions, and/or those of your owners, employees, consultants, contractors, agents, officers, and directors, whether or not you authorized those acts or omissions (including, without limitation, any obligation we have to indemnify Processor and/or Bank in respect of any such acts or omissions, whether such obligation arises under the Processing Agreements or otherwise); (b) your Transactions or use of the Payment Services (including, without limitation, for refunds, Chargebacks, or liability assessments imposed by the Payment Networks); (c) your breach of this Service Agreement or violation of Applicable Law or Operating Rules; (d) the state or configuration of your equipment or software and/or equipment or software we make available to you (but only to the extent not used in accordance with this Service Agreement and our other agreements with you); and/or (e) your use of third-party equipment, software, services and/or service providers (including software of a third party you access through equipment we make available to you and including gateways, value added resellers, and/or independent software vendors). Without limiting the foregoing, if we, Processor, and/or Bank are named as a party to any claims, litigation, proceeding, arbitration, and/or other legal process commenced by a third party arising out of or relating to any act or omission by you, you must indemnify, defend and hold harmless GoDaddy, Processor, and Bank with respect to such any and all liability associated with such claims, litigation, proceeding, arbitration, and/or other legal process, and shall pay all costs, expenses, and attorneys’ fees incurred or paid in connection therewith.
24.2. You agree to reimburse us for all legal fees and/or other costs incurred by us in enforcing any provision of this Service Agreement against you, or in obtaining any sums due under this Service Agreement from you, regardless of whether those fees in connection with a court proceeding, private dispute resolution, and/or outside a formal dispute resolution proceeding.
25. LIMITATION OF LIABILITY.
IN ADDITION TO THE LIMIT SET FORTH IN THE AGREEMENT, IN NO EVENT SHALL GoDaddy, PROCESSOR, AND BANK BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR (A) THE DECLINE OF A TRANSACTION, EVEN IF SUCH DECLINE WAS WRONGFUL; (B) ANY LOSS CAUSED BY A TRANSACTION DOWNGRADE, REGARDLESS OF THE CAUSE; AND/OR (C) THE FAILURE TO PROCESS, AUTHORIZE, OR CAPTURE A TRANSACTION.
Without your consent and/or the consent of any guarantor: (a) Bank may assign this Service Agreement; (b) Processor may assign this Service Agreement to another transaction processor approved by Bank; and/or (c) we may assign this Service Agreement to another payment facilitator or to Processor. You may not assign this Service Agreement without our express written consent, except as otherwise provided in the Processing Agreements. For purposes of this Service Agreement, it shall be deemed an assignment of this Service Agreement by you if there is any issuance, sale and/or transfer of your equity interests (in a single transaction or series of transactions) such that the equity holders listed in the Sponsored Merchant Application collectively hold less than 50% of your equity after such transaction(s). This Service Agreement will be binding on each party’s successor(s) and/or permitted assigns.
27.1. Processing Agreements. This Service Agreement is also subject to the terms of each of the Processing Agreements. Without limiting the foregoing, this Service Agreement does not, and may not, restrict or interfere with the right of Processor and/or Bank to terminate this Service Agreement at any time and/or our right to terminate this Service Agreement at any time as required by the Processing Agreements. All obligations in or under any of the Processing Agreements that are intended to apply to you (including, without limitation, any obligations of a merchant and/or sponsored merchant thereunder) are hereby incorporated into this Service Agreement and shall apply to you and be your obligations as well. Notwithstanding anything herein to the contrary, you are not a third-party beneficiary of, have no rights under, and may not bring any claim against Processor and/or Bank relating to, any of the Processing Agreement
27.2. As part of the Payment Services, you may use certain tools or software developed, owned, or licensed by a third-party. Your use of these tools or software may be subject to additional terms. If the tools or software are accompanied by or require a license agreement from the third-party provider, your use is subject to that license agreement, in addition to (not in lieu of) this Services Agreement.
27.3. We may reference or provide access to third-party services, products, and promotions that utilize, integrate, or provide ancillary services to the Services (“Third-Party Services”). These Third-Party Services are provided for your convenience only and do not constitute our approval, endorsement, or recommendation of any such Third-Party Services for you. You access and use any Third-Party Service based on your own evaluation and at your own risk. You understand that your use of any Third-Party Service is not governed by this Agreement. If you decide to use a Third-Party Service, you will be responsible for reviewing, understanding and accepting the terms and conditions associated with its use. We expressly disclaim all responsibility and liability for your use of any Third-Party Service. Please also remember that when you use a Third-Party Service, our Privacy Policy is no longer in effect. Your use of a Third-Party Service, including those that have a link on our website, is subject to that Third-Party Service’s own terms of use and privacy policies. We will share you information with trusted third party service providers (including but not limited to your mobile service provider) as necessary for them to perform services on our behalf included processing credit card payments, security, risk management and compliance and identity verification.
27.4. Apple Tap To Pay – If you elect to utilize Apple, Inc.’s (“Apple”) software-based point of sale platform to enable you to accept payments, conduct Transactions and access related services using Apple products (“Apple Tap to Pay”) and accept Apple’s Tap to Pay terms and conditions (“Apple’s T&C’s"), you hereby authorize us to provide to Apple and its affiliates, data related to your use of the Apple Tap to Pay, including without limitation information about your use of GD Payments for use by Apple pursuant to the Apple T&C’s.
27.5. Neither GoDaddy nor the third-party providers listed in this section make any representations or warranties about any tools or software offered in connection with the Payment Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the tools or software. You are responsible for managing and maintaining in good standing any paid subscription and/or account required with a third-party provider. You must cancel or terminate your paid subscription and/or account with the applicable third-party provider and not GoDaddy.
27.6. Your use of the following tools or software are subject to the applicable linked terms, which are incorporated herein by reference:
- Persona. Your use of Persona is subject to the Persona terms of service.
- Plaid.Your use of Plaid is subject to the Plaid terms of service.
Other than Processor and Bank, there are no third-party beneficiaries to this Services Agreement. Further, you are not a third party beneficiary to any agreement between GoDaddy and Acquirer.
You shall not circumvent this Service Agreement by processing transactions with your customers via the Acquirer.
No failure or delay by either party in exercising any right under this Services Agreement will constitute a waiver of that right. A waiver shall only be effective in writing executed by the party granting the waiver. Other than as expressly stated herein, any remedies provided in this Services Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
GoDaddy shall not be responsible for delays, non-performance, damages, lost profits or other losses caused directly or indirectly by any act of God, including without limitation fires, earthquakes, tornadoes, hurricanes, wars, pandemic, epidemics, labor disputes, communication failures, legal constraints, power outages, data transmission, loss or failure, incorrect data transmission or any other event outside the direct control of GoDaddy.
32. LANGUAGE.
The parties hereby acknowledge that they have required this Service Agreement and all related documents to be drawn up in the English language. Les parties reconnaissent avoir demandé que le présent contrat ainsi que tous les documents qui s’y rattachent soient rédigés en langue anglaise.
All matters arising out of or related to this Servicer Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario. The parties agree that all performances and transactions in Canada will be deemed to have occurred in the Province of Ontario and that your entry into and performance of this Service Agreement will be deemed to be the transaction of business within the Province of Ontario. Any action or proceeding relating to or arising from this Service Agreement (other than collection actions relating to amounts owed by you under this Service Agreement) must be brought, held, or otherwise occur exclusively in Toronto, Canada, and the parties hereby attorn to the exclusive jurisdiction of the courts of Ontario. Each party hereby waives all right to trial by jury in any action or proceeding relating to this Service Agreement. Each party represents to the other that this waiver is knowingly, willingly and voluntarily given.