This Payment System Agreement (“Agreement”) is made effective as of the date set forth below by and between Braintree Payment Solutions, LLC, located at 802 West Bartlett Road, Bartlett, Illinois 60103 (“Braintree”) and the entity and/or individual who enters into this Agreement (“Client”). This Agreement sets out the terms and conditions under which Client may utilize the Payment System as defined below. By clicking on the "I AGREE" button at the end of this Agreement or by continuing to use the Payment System, it becomes a legally binding contract.
WHEREAS, Braintree provides point of sale software (payment gateway), equipment and related goods and services (the “Payment System”); and
WHEREAS, Braintree wishes to provide Payment System to Client so that Client may utilize Payment System.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION ONE – SERVICES PROVIDED BY BRAINTREE
1.01. Services. Braintree will provide the portions of the Payment System as set forth in the pricing agreement. Braintree and Client shall agree upon the equipment and services to initially be provided under this Agreement and may update, amend and changes the goods and services provided to the Client upon the mutual consent of Braintree and Client.
1.02. Limited License. Braintree hereby grants to Client a perpetual, revocable (but only as provided herein), worldwide, nonexclusive, non-sublicensable, and non-transferable license, under intellectual property rights owned or licensed by Braintree, to use Payment System software provided however that:
(a) such license is subject to all obligations and restrictions imposed on Client in this Agreement;
(b) such license extends only to Client’s employees and contractors, but only to the extent that such employees and contractors use Payment System for the sole purpose of collecting payments on the behalf of Client, and for no other purpose whatsoever;
(c) such license extends only to Client use of Payment System solely to perform the functions specified herein, and in compliance therewith, and
(d) while exercising such license, Client shall treat Payment System as Braintree’s Confidential Information under this Agreement.
1.03. Limitations on Rights Granted. Except as expressly provided to the contrary in this Agreement, Client shall not, and shall not knowingly cause or permit any non-party, to use or reproduce Payment System. Client shall not, and shall not knowingly cause or permit any non-party, to disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share Payment System, or otherwise apply any procedure or process to Payment System in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for Payment System or any algorithm, process, procedure or other information contained in Payment System. Except as expressly authorized herein, Client may not rent, lease, assign, sublicense, transfer, modify, alter, or time share the Payment System.
1.04. Independent Contractors. The relationship of Braintree and Client is that of independent contractors. Neither Client nor its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of Braintree, nor do they have any authority to bind Braintree by contract or otherwise to any obligation. They will not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
1.05. Compliance With Laws. (a) Client will comply with the rules and regulations of Visa, MasterCard, Discover, American Express and all other such associations and all applicable international, national, state, regional and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Payment System. Client agrees to comply with any federal or regional Automated Clearing House rules applicable to automatic and electronic transfer of funds including without limitation, laws, regulations, and rules governing correct authorizations by consumers and businesses, disclosures and notices required in connection with electronic funds transfer, and all necessary waivers and releases. Client has the sole responsibility to verify Braintree’s list of merchant card processors to be used under terms of this Agreement to determine if Braintree can properly transmit the necessary credit card information to Client’s credit card processor. Client acknowledges that Braintree’s list can be modified from time to time and must be verified by Client prior to being set up with Braintree. Client has the sole responsibility for obtaining the proper authorization from Client’s own credit card processor and/or settlement bank to be able to use Client’s merchant account for key entry transactions and transactions being processed over the internet or online. Client shall be solely responsible for credits, returns, disputes and all costs associated with data transmissions. Client will be solely responsible to obtain accurate credit card and ACH information and authorization from its customers, and will transmit said information to Braintree via the internet or service originally agreed upon by all parties.
(b) Braintree agrees to comply with the Payment Card Industry (“PCI”) Data Security Standard (“DSS”) of Visa and MasterCard. Client can verify Braintree’s compliance with the PCI DSS by viewing the Global List of PCI DSS Validated Compliant Service Providers on Visa’s website at http://usa.visa.com/merchants/
1.06. Authorizations. Client will obtain from each participating consumer or business the required ACH and necessary credit card information in proper form authorizing automatic debits to such consumer or business bank account to transfer payment amounts to Client’s bank deposit account. Client warrants that Client will properly warehouse all authorizations obtained from consumers or businesses and will provide such authorizations for inspection upon request by Braintree or any regulatory body governing these types of transactions. Client hereby authorizes Braintree to make direct deposit of payments from consumer or business bank accounts and to debit Client for fees and other charges as set forth herein.
SECTION TWO – THE PAYMENT SYSTEM
2.01. Providing Payment System. During the term of this Agreement, Braintree shall provide the Payment System and use its commercially reasonable efforts to provide the Payment System and maintain them in an uninterrupted and error-free fashion consistent with its practices in effect as of the date of this Agreement. However, the parties acknowledge that the Payment System is computer network based services which may be subject to outages and delay occurrences. In such an event, Braintree shall use its commercially reasonable efforts to diligently and promptly remedy any and all material interruptions. Braintree will not be liable in any manner for any interruptions, outages, or other delay occurrences relating to the Payment System.
SECTION THREE – PAYMENT OF FEES
3.01. Fees in General. Client shall pay fees to Braintree as set forth in the application for the Payment Services, as set forth on Braintree’s website and as disclosed to Client in any other documents or materials by Braintree.
3.02. Fees for Payment System. Client agrees to pay Braintree for the Payment System via deduction of all applicable fees directly from Client's bank account. Client shall provide Braintree with all necessary bank account, routing and related information. Braintree will deduct automatically all such fees and charges on the first business day of each month for the preceding month’s services. Interest shall accrue at the lesser of 1.0% per month or the maximum amount permitted by applicable law (“Late Fee”) for any fees that remain unpaid beyond any due dates. In the event of a dispute made in good faith as to the amount of fees, Client agrees to remit payment on any undisputed amount(s); and, the Late Fee shall not accrue as to any disputed amounts unless not paid within thirty (30) calendar days after said dispute has been resolved by both parties.
SECTION FOUR – TERM AND TERMINATION
4.01. Term. The initial term of this Agreement shall continue on until terminated as set forth herein. Notwithstanding any other provisions in this Agreement, either party may terminate this Agreement, without cause, by providing the other party with one (1) days written notice.
4.02. Upon any termination of this Agreement, Braintree agrees, upon written request from Client, to provide the Client with any available credit card information relating to Client’s customers subject to the following conditions: (i) Client must provide Braintree with proof that Client is in compliance with the PCI DSS standards by giving Braintree a certificate or report on PCI DSS compliance from a qualified provider and any other information reasonably requested by Braintree (ii) the transfer of such information is compliant with the latest version of the PCI DSS Standard and (iii) the transfer of such information is allowed under the applicable card association rules, state laws, federal laws and any other applicable laws, rules or regulations.
SECTION FIVE - OBLIGATIONS.
5.01. Confidential Information. The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the Payment System and the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the "Confidential Information") all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party's obligations under this section or by breach of a third party's confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party's confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party's Confidential Information; (ii) not use the disclosing party's Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party's express prior written consent; (iii) disclose the disclosing party's Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party's internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information. The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure.
5.02. Indemnification. Client agrees to indemnify, defend, and hold harmless Braintree, its employees or agents from and against any loss, liability, damage, penalty or expense (including attorneys' fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any failure by Client or any employee, agent or affiliate of Client to comply with the terms of this Agreement; (ii) any warranty or representation made by Client being false or misleading; (iii) negligence of Client or its subcontractors, agents or employees, or (iv) any representation or warranty made by Client or any employee or agent of Client to any third person other than as specifically authorized by this Agreement.
5.03. Disclaimer of All Warranties. THE PAYMENT SYSTEM IS PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. BRAINTREE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO CLIENT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BRAINTREE OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF BRAINTREE’S OBLIGATIONS.
5.04. Limitation of liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PAYMENT SYSTEM, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL BRAINTREE’S TOTAL LIABILITY TO CLIENT OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CLIENT UNDER THIS AGREEMENT TO A MAXIMUM OF ONE THOUSAND DOLLARS ($1,000.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.
5.05. Taxes. Client shall pay, indemnify and hold Braintree harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on Braintree’s income, and (ii) all government permit fees, customs fees and similar fees which Braintree may incur with respect to this Agreement. Such taxes, fees and duties paid by Client shall not be considered a part of, a deduction from, or an offset against, payments due to Braintree hereunder.
5.06. Client represents and warrants to Braintree as follows:
(a) Client has the full power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against Client in accordance with its terms and no provision requiring Client's performance is in conflict with its obligations under any charter or any other agreement (of whatever form or subject) to which Client is a party or by which it is bound.
(b) Client is duly organized, authorized and in good standing under the laws of the state of its organization and is duly authorized to do business in all other states in which Client's business make such authorization necessary or required.
5.07. Trademarks. Subject to the limitations in this Agreement, Braintree grants Client the nonexclusive right and license to use Braintree’s trademarks (the "Trademarks") during the term of this Agreement solely in conjunction with the use of the Payment System. Braintree grants no rights in the Trademarks or in any other trademark, trade name, service mark, business name or goodwill of Braintree except as licensed hereunder or by separate written agreement of the parties. Client agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to Braintree (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). During the term of this Agreement, Client agrees not to use any trademark, trade name or product name confusingly similar to a trademark, trade name or product name of Braintree, except for the Trademarks expressly licensed hereunder. Upon expiration or termination of this Agreement, Client will immediately cease all display, advertising and use of all of the Trademarks and will not thereafter use, advertise or display any trademark, trade name or product designation which is, or any part of which is, similar to or confusing with any Trademark or with any trademark, trade name or product designation associated with Braintree or any of Braintree’s products and services.
5.08. Intellectual Property. "Intellectual Property" means all of the following owned by a party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as "Intellectual Property Rights." Other than the express licenses granted by this Agreement, Braintree grants no right or license to Client by implication, estoppel or otherwise to the Payment System or any Intellectual Property Rights of Braintree. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of Braintree, in the Payment System) and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein. Braintree (and not Client) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for the Payment System and any Intellectual Property Rights incorporated therein. Client will cooperate with Braintree in pursuing such protection, including without limitation executing and delivering to Braintree such instruments as may be required to register or perfect Braintree’s interests in any Intellectual Property Rights and any assignments thereof. Client shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from Braintree in connection with this Agreement.
5.09. Data Security Compliance. Client agrees to comply with privacy and security requirements under the Payment Card Industry Data Security Standard (“Association Requirements”) with regards to Client’s use, access, and storage of certain credit card non-public personal information (“Cardholder Information”) on behalf of Braintree. Visa, MasterCard, Discover, American Express, any ATM or Debit Networks, and the other financial service card organizations shall be collectively known herein as “Associations.” Client shall comply with its obligations under any applicable state or federal law or regulations as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of Cardholder Information. Client agrees that it shall protect the privacy of Cardholder Information to at least the same extent that Braintree must maintain that confidentiality under the Association Requirements or applicable law. Client agrees to ensure that any agent, including a subcontractor, to whom it provides Cardholder Information received from, or created or received by Client on behalf of Braintree, agrees to the same restrictions and conditions that apply through this Agreement to Client with respect to such information. Upon five (5) business days notice or immediately upon any unauthorized access to, use or disclosure of any Cardholder Information, Braintree may at its discretion, conduct an on-site audit and review of Client’s procedures and systems.
5.10. Data Accuracy. Client shall provide Braintree with data necessary for the electronic funds transfer (‘collection data”) in the form and at the times prescribed by Braintree and shall make periodic checks and updates necessary to cause the collection data to be current and accurate at all times. The format and schedule requirements for delivery of collection data by Client may be changed by Braintree during the term of this Agreement, and Client shall deliver collection data in conformity with changed requirements set forth from time to time by Braintree. Client warrants to Braintree that all data and entries delivered to Braintree by Client will (a) be correct in form, (b) contain true and accurate information, (c) be fully authorized by the consumer or business, and (d) be timely under the terms and provisions of this Agreement.
5.11. Merchant Account Services. In the event Client applies for and is approved for merchant account services, Client’s use of such services shall be governed by the terms of the applicable merchant account services agreement. Merchant account services are not covered by this Agreement.
5.12. Compliance with Export Controls. Client understands and acknowledges that Braintree is subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries, entities, and individuals. Any and all obligations of Braintree to provide any products or services hereunder shall be subject in all respects to such United States laws and regulations as shall from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations (“EAR”) issued by the Department of Commerce, International Trade Administration, Bureau of Export Administration (“BXA”). Client agrees not to export or re-export any Braintree Intellectual Property in violation of any such restrictions, laws or regulations. Unless all required permits and/or approvals have been obtained, Client shall not cause, approve or otherwise facilitate others such as agents, subsequent purchasers, customers or any other third parties to export or re-export any Braintree Intellectual Property. Client agrees not to distribute or supply Braintree Intellectual Property to any person or entity if Client believes that such person intends to re-export or otherwise to take the Braintree Intellectual Property or to use the Braintree Intellectual Property outside of the United States without having all required permits and approvals. The Braintree Intellectual Property and the underlying information or technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country to which the U.S. has embargoed goods; or, (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders.
6.01. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.
6.02. Drafting. No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein. This Agreement shall be deemed to be jointly prepared by the parties and therefore any ambiguity or uncertainty shall be interpreted accordingly.
6.03 Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.
6.04. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Client may not assign this Agreement without the written consent of Braintree. Braintree may assign this Agreement in its sole discretion without the written consent of Client.
6.05. Amendments. This Agreement may be amended by Braintree by posting a new version of this Agreement within the control panel or any place that Client has access to in order to view the revised Agreement. Any new version of this Agreement will immediately replace in its entirety this Agreement.
6.06. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and given by personal delivery, telecopy (confirmed by a mailed copy), or first class mail, postage prepaid, sent to the addresses set forth herein.
6.07. Section Headings: The section headings contained in this Agreement are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement.
6.08. Entire Agreement; Binding Effect. This Agreement, including all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.
6.09. Jurisdiction; Venue; Governing Law. The parties mutually acknowledge and agree that this Agreement shall be construed and enforced in accordance with the laws of the State of Illinois, without regard to the internal law of Illinois regarding conflict of laws. The parties mutually consent and submit to the jurisdiction of the federal and/or state courts of Illinois and any action or suit concerning this Agreement or related matters shall be brought by the parties in federal or state court with appropriate subject matter jurisdiction in Illinois. The parties mutually acknowledge and agree that they shall not raise in connection therewith, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing. The parties acknowledge that they have read and understand this clause and agree willingly to its terms.
6.10. Attorney’s Fees. Should suit be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, including expert witness fees and fees on any appeal
6.11. Survival. All representations, covenants and warranties shall survive the execution of this Agreement, and sections 1.02, 1.03, 1.04, 1.05, 1.06, 2.01, 3.01, 3.02, 4.02, 5.01, 5.02, 5.03, 5.04, 5.05, 5.06, 5.07, 5.08, 5.09, 5.10, 5.11, 5.12, 6.01, 6.02, 6.03, 6.04, 6.05, 6.06, 6.07, 6.08, 6.09, 6.10 and 6.11 shall survive termination of this Agreement.
© 2010 Braintree Payment Solutions. All rights reserved. Braintree is a registered ISO/MSP of Wells Fargo Bank, N.A., Walnut Creek, CA
