Cooperation Agreement

1 GENERAL

1.1 Introduction and purpose

These General Terms and Conditions govern your (as Seller) use of ViaBill Inc.’s (ViaBill) Buy now Pay later financing options, (the Service) in connection with the sale of goods or services (Sale) through your retail website (Site) to your customers (Customers).

By entering into a Merchant Agreement, Seller acknowledges and agrees to these General Terms and Conditions, as they may be amended from time to time. Seller’s agreement to these General Terms and Conditions will be binding on Seller until termination of its agreement to these General Terms and Conditions as provided for herein.

These General Terms and Conditions include an agreement to arbitrate to resolve disputes by arbitration on an individual basis (Section 1.8). It provides that any dispute may be resolved by binding arbitration instead of a trial in court or a class action. This provision will eliminate Seller’s right to go to court (except for a small claims court having jurisdiction), the right to bring class or collective actions, and the right to have a jury decide a dispute.

1.2 The service

Availability. Seller agrees to integrate and make the Service available on its Site to its Customers, and will continue to make the Service available to its Customers throughout its agreement to these General Terms and Conditions. The Service includes integration of ViaBill’s “Price Tag” functionality within Seller’s Site.

Customer Election. When Customer elects to use the Service in connection with a Sale, Customer will be guided through ViaBill’s hosted pages integrated on the Site, during which Customer will provide personal information including a credit card. ViaBill will use this information to approve or reject Customer’s use of the Service, which, in either case, ViaBill may do so in its sole discretion. As between Seller and ViaBill, any information collected by ViaBill through the Service shall constitute ViaBill’s information.

Upon Customer’s approved use of the Service to pay for the Sale (“ViaBill Sale”), Seller must inform Customer that payment for the ViaBill Sale (including shipping, taxes and other amounts agreed to by Customer, the Purchase Amount) must be made in full to ViaBill. Seller is prohibited from instructing Customer to pay Seller or any other third party or otherwise suggest that Customer may make a payment to Seller or any other third party instead of paying ViaBill to satisfy its payment obligation for the ViaBill Sale.

ViaBill has sole responsibility and discretion to make all decisions and make all communications relating to Customer’s use of the Service, including the establishment of underwriting criteria to approve or reject Customer’s use of the Service; any minimum or maximum limits on the amount of a ViaBill Sale that may be purchased using the Service; any fees charged to Customers for use of the Service; and any invoices, service updates or requests for payment.

Payment Obligation. Seller acknowledges and agrees that, upon successfully completing a ViaBill Sale, (a) Seller will provide a receipt to Customer confirming the ViaBill Sale and Customer’s obligation to pay ViaBill through the Service; (b) Seller will notify, or cause Seller’s payment processor to notify, ViaBill of such ViaBill Sale (including Customer’s obligation to pay the Purchase Amount for the ViaBill Sale (“Payment Obligation”)) through a communication system as designated by ViaBill (subject to any additional terms and conditions governing the use of such system), immediately (and in no event more than one calendar day thereafter); and (c) Seller agrees not to seek payment, directly or indirectly, of the Purchase Amount (in part or in full) from Customer except as provided in these General Terms and Conditions.

Capture and Assignment of Payment Obligation. Immediately (and in no event more than one calendar day thereafter) upon shipment of the good or performance of the service relating to a ViaBill Sale, Seller shall notify, or cause Seller’s payment processor to notify, ViaBill of such shipment (a “Capture”) through the designated communication system. Upon such Capture, (a) the right to the Payment Obligation associated with the Captured ViaBill Sale will be assigned to ViaBill, subject to reversal of the assignment as provided in these General Terms and Conditions, (b) ViaBill will have the sole and exclusive right and obligation to collect on and receive payment of the Purchase Amount associated with the Payment Obligation from Customer, including initiating collection proceedings for non-payment by Customer; (c) ViaBill will be obligated to pay Seller for the Purchase Amount, less any transaction or other fees and other withholdings as provided in these General Terms and Conditions (“Seller Payment”), which ViaBill will pay to Seller’s designated bank account; and (d) Seller will have no right (itself or through any third party) to collect on or receive payment of the Purchase Amount associated with such Payment Obligation from Customer.

Reversal of Assignment. ViaBill may, but is not required to, return an assigned Payment Obligation back to Seller, and in such case Seller will be obligated to refund the associated Seller Payment made to Seller, if any, in any of the following circumstances:

  • (a) If Customer makes any payment of the Purchase Amount (in full or in part) to Seller or any other third party (other than ViaBill) prior to paying the Purchase Amount to ViaBill, and Seller fails to immediately notify ViaBill of such payment by email at tech@viabill.com or remit such payment to ViaBill.
  • (b) If Customer disputes the ViaBill Sale for any reason, including with respect to the accuracy or quality of the purchased item or purchase price, as advertised to Customer by Seller; and Seller is unable to provide documentary evidence that such dispute has been resolved in Seller’s favor.
  • (c) If Customer claims non-delivery of the purchased item, delivery after the Seller’s promised delivery date or Seller violates applicable law in delivering the purchased item (including the Federal Trade Commission’s Mail, Internet or Telephone Order Merchandise Rule, 16 C.F.R. part 435); and Seller is unable to provide documentary proof to ViaBill’s satisfaction that Customer received the purchased item on or before the Delivery Date or complied with law, as applicable.
  • (d) If Customer or Seller cancels a ViaBill Sale for any reason, or Customer returns the purchased item, and Seller accepts such cancellation or return.
  • (e) If ViaBill learns that Customer used the Service, or Seller enabled Customer to use the Service, in connection with a Prohibited Sale. A Prohibited Sale means any Sale involving or subject to: an account invoice; prepayment of items or services (including a downpayment); telecommunication, video, electricity or other utility services; the sale or exchange of currency, cash or cash equivalents; cash remittances or any other form of money transfer; games or lotteries; pyramid schemes (or similar structures); counterfeit goods or other infringements of intellectual property rights; Sales in violation of law or payment network rules (such as Visa and MasterCard) including child pornography or the sale of pharmaceuticals, narcotics or weapons that are subject to legal restrictions.
  • (f) If Seller has breached its obligations under these General Terms and Conditions, including by failing to notify ViaBill of a Capture that includes all required information about the ViaBill Sale.
  • (g) If Seller has agreed with Customer to reduce the Purchase Amount and Seller fails to promptly notify ViaBill of the reduced Purchase Amount; provided that ViaBill reserves the right to retain the assigned Payment Obligation and seek payment from Customer for such reduced Purchase Amount.
  • (h) Upon the termination of Seller’s agreement to these General Terms and Conditions, provided that ViaBill may, in its sole discretion, retain the assigned Payment Obligation and collect the Purchase Amount from Customer pursuant to these General Terms and Conditions.

Chargebacks. Without limiting any of the foregoing rights to reverse an assignment, if ViaBill receives a chargeback request from Customer’s issuing bank in connection with a ViaBill Sale that is not an Eligible Chargeback, (a) ViaBill may, but is not required to, return an assigned Payment Obligation back to Seller, and in such case Seller will be obligated to refund the associated Seller Payment made to Seller, and (b) Seller will be subject to a Chargeback Fee. An Eligible Chargeback and the Chargeback Fee are defined in ViaBill’s chargeback policy, available at https://www.viabill.com/trade-terms/US/chargeback-policy, which is incorporated herein by reference and may be amended by ViaBill from time to time.

Refunds. If Customer, after satisfying its payment to ViaBill for the assigned Payment Obligation, returns the purchased item and Seller accepts the returned item, Seller will (a) not pay the refund amount to Customer but instruct Customer that ViaBill will refund the Customer directly, (b) immediately notify ViaBill of the return through the designated communication system indicating Seller’s acceptance of the return and the refund amount, and (c) promptly communicate the refund amount to ViaBill. Upon receipt of the refund amount from Seller, ViaBill will initiate the appropriate refund to Customer. If ViaBill does not receive the refund amount from Seller within three (3) business days from the notice of the return or Seller pays the refund amount directly to Customer, and ViaBill, in its sole discretion, issues a refund to Customer, Seller will be obligated to reimburse ViaBill for any refund amount paid or credited to Customer’s account as a result of the refund request.

Changes to the Service. ViaBill reserves the right to modify the Service, including the presentation of the Service on Seller’s Site and the terms and conditions governing Customer’s use of the Service (ViaBill Customer Terms). Seller agrees to promptly make adjustments to the integration of the Service on the Site as reasonably necessary to accommodate such modifications to the Service.

Exclusivity. During Seller’s agreement to these General Terms and Conditions, ViaBill will be the exclusive provider of the Service. Seller may only offer another payment solution on Seller’s Site that is similar to the Service upon ViaBill’s prior written consent.

Publicity. Seller may not make any public announcement or disclosure to any third party relating to its agreement to these General Terms and Conditions or its subject matter, including in any promotional or marketing material, without ViaBill’s prior written consent. Seller authorizes ViaBill to use Seller’s name and logos, and accordingly grants ViaBill a non-exclusive, non-sublicensable, non-transferable, limited license to use such name and logos, in ViaBill’s promotional and marketing materials, press releases, or other public announcements relating to Seller’s agreement to these General Terms and Conditions or the availability of the Service on the Site.

Risk of Loss of Goods or Services. Notwithstanding anything to the contrary in these General Terms and Conditions, ViaBill is not responsible for the provision of the goods or services associated with a ViaBill Sale. As between ViaBill and Seller, Seller assumes all liability relating to such goods or services, including risk of loss for damaged or non-delivery of goods to Customer. The foregoing does not limit or otherwise affect the assignment of the associated Payment Obligation to ViaBill or ViaBill’s right to request payment from Customer upon such assignment.

1.3 Seller Representations and Warranties

Seller represents, warrants and covenants that:

  • (a) Seller will integrate and maintain the Service on its Site in accordance with ViaBill’s integration guidelines, as provided by ViaBill during the onboarding process.
  • (b) With respect to each ViaBill Sale completed through Customer’s approved use of the Service, (i) such ViaBill Sale is not a Prohibited Sale; (ii) such sale was made pursuant to Customer’s agreement to Seller’s terms, conditions and policies (including shipping policy) and the ViaBill Customer Terms, and in any event for a lawful purpose only; and (iii) Seller has the right to assign the Payment Obligation associated with such ViaBill Sale to ViaBill, for the full Purchase Amount without any Customer right of setoff or other deduction or any other third party right to claim, in whole or in part, ownership, control or interest in the Payment Obligation.
  • (c) Seller will not advertise, offer or enable Customer’s use of the Service in any manner that discriminates or disparages ViaBill or the Service, including by imposing additional restriction, fee or other requirement on Customer’s use of the Service unless imposed on all other payment methods available on the Site.
  • (d) Seller will submit, upon ViaBill’s request from time to time, its ownership, financial and other documentation required by ViaBill in order for ViaBill to satisfy its obligations under applicable money laundering and related laws. ViaBill reserves the right to withhold any payments owed to Seller until Seller has submitted the necessary documents as requested by ViaBill.
  • (e) Seller will promptly notify ViaBill of any Customer complaints, disputes or inquiries regarding the ViaBill Sale, to the extent such complaint, dispute or inquiry affects the Purchase Amount, ViaBill’s ability to collect payment from Customer or otherwise impacts ViaBill’s rights under these General Terms and Conditions (including its right to return an assigned Payment Obligation back to Seller).
  • (f) Seller will promptly notify ViaBill of any material changes to Seller’s business or ownership, including the nature of the goods or services sold on the Site, the merger or acquisition of Seller, or any adverse change to its financial condition.
  • (g) Seller will display the Service on its Site in accordance with ViaBill’s marketing guidelines available at ViaBill.com/download. When using ViaBill’s advertising materials, Seller will not alter, revise or otherwise deviate from such materials. Seller will bear sole responsibility for ensuring that the presentation of the Service and any ViaBill marketing and related materials on the Site comply with applicable law.

1.4 Customer Relationship

As between the Parties, (a) ViaBill is responsible for handling inquiries relating to Customer’s use of the Service, and will inform Customer of such responsibility on ViaBill’s payment instructions or other communications sent to Customer; and (b) Seller is responsible for handling all other aspects of the ViaBill Sale, including product complaints or inquiries, product support requests, guarantee obligations in relation to the purchased item, and the calculation, collection or reporting of applicable taxes associated with the ViaBill Sale.

1.5 Suspension and Termination

Right to Terminate. During the first three (3) months of Seller’s agreement to these General Terms and Conditions, Seller may, upon written notice to ViaBill, immediately terminate its agreement to these General Terms and Conditions for any reason. Thereafter, Seller may terminate its agreement to these General Terms and Conditions upon six(6) months’ prior written notice.

ViaBill may immediately suspend the availability of Service on the Site or terminate Seller’s agreement to these General Terms and Conditions, upon written notice to Seller, for any reason.

If at any time while these General Terms and Conditions are in effect (including during any 6-month notice of termination period),: (a) Seller fails to make the Service available on its Site; or (b) Seller offers another payment solution on its Site that is similar to the Service, in either case without the prior written consent of ViaBill, then in either case, such action by Seller will constitute a material breach of these General Terms and Conditions. If Seller fails to cure such material breach within eight (8) days of notice from ViaBill, ViaBill may immediately terminate Seller’s agreement to these General Terms and Conditions and Seller agrees to pay ViaBill liquidated damages in an amount equal to the total fees that Seller incurred in the two (2) calendar months immediately prior to Seller’s notice of termination, multiplied by three (3). Seller acknowledges and agrees that such liquidated damages are fair and reasonable in light of ViaBill’s resource commitment to Seller.

Upon termination of Seller’s agreement to these General Terms and Conditions, all amounts owed to ViaBill will be deemed immediately due and payable in full without demand or other notice of any kind.

Survival. Upon the termination of Seller’s agreement to these General Terms and Conditions, the following Sections will survive such termination and continue in full force and effect: 1.2 (Assignment of Payment Obligation, Reversal of Assignment, Publicity); 1.3(b) and (e) (Seller Representations and Warranties); 1.4 (Customer Relationship); 1.6 (Confidentiality); 1.8 (Dispute Resolution); 1.9 (Disclaimer of Warranty; Limitation of Liability); 1.10 (Indemnification); 1.11 (Other Terms); 2.2 (Settlement of Seller Payment); and 2.3 (Withholdings and Setoff).

1.6 Confidentiality

Definition. Each Party acknowledges that it (as the Receiving Party) may receive Confidential Information of the other Party (as the Furnishing Party). For purposes of these General Terms and Conditions, Confidential Information includes Seller’s agreement with these General Terms and Conditions, including the fees and amendments (if any) applicable to Seller (subject to ViaBill’s publicity rights under Section 1.2); any customer or Party personnel information (including but not limited to nonpublic personally identifiable information); financial data and proprietary business information, including income or sales data or projections, customer lists, business operations, policies, procedures and techniques, future development plans and new product design, research, development or strategies; reports generated under these General Terms and Conditions; ideas, techniques, know-how, concepts, development tools and processes; designs, drawings, manuals and other documentation; improvements, patents, copyrights, trade secrets or other intellectual property; and any other information which the Parties should reasonably assume, based on the circumstances, should be treated as confidential and proprietary. The term Confidential Information does not include information which was already in the Receiving Party’s possession prior to delivery; is or becomes generally available to the public through lawful means, other than as the result of a disclosure by Receiving Party; becomes available to the Receiving Party without confidential or proprietary restriction by a third party who rightfully possesses the information without confidential or proprietary restrictions; or the Receiving Party can demonstrate that it was independently developed by the Receiving Party.

Use Restrictions. The Receiving Party agrees that (a) it will not publish, communicate, or disclose the Confidential Information of the Furnishing Party to any third party except as necessary to fulfill its obligations, exercise its rights under these General Terms and Conditions or as expressly consented to in writing by the Disclosing Party; and only for such purpose and only for the time that it is necessary to do so, except to the extent it is otherwise permitted under these General Terms and Conditions; (b) it will make commercially reasonable efforts to take security measures at least as stringent as the measures it takes to protect its own Confidential Information, and in any event as required by applicable law; and (c) it will disclose Confidential Information only on a need to know basis and only to its representative, agent or subcontractor who is obligated to treat the Confidential Information in a manner consistent with the Receiving Party’s obligations under these General Terms and Conditions and the Receiving Party will be liable for any damages arising from the unauthorized disclosure of Confidential Information by any such third party. Each Party shall immediately notify the other upon discovery of any loss or unauthorized disclosure of Confidential Information of the other Party.

Required Disclosure. In the event the Receiving Party is requested or is legally compelled to close Confidential Information of the Furnishing Party, the Receiving Party will promptly notify the Furnishing Party of such potential disclosure, in order to enable the Furnishing Party, at its sole cost and expense, the opportunity to obtain a protective order to protect and preserve the confidential nature of the Confidential Information. In such event, each Party agrees to furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information.

Return or Destruction. Upon the termination of these General Terms and Conditions, the Receiving Party will, at the Furnishing Party’s sole discretion: (a) return or destroy, as the Furnishing Party may reasonably direct, all material in any medium that contains, refers to, or relates to the Furnishing Party’s Confidential Information, and (b) retain only one (c) copy solely for compliance with record retention requirements under applicable law. Notwithstanding the foregoing, no Party will be obligated to delete Confidential Information contained in any archived computer system backup made in accordance with that Party’s security and/or disaster recovery policies and procedures, provided that such archived copy will be destroyed in the ordinary course under that Party’s data retention policies and procedures and will remain fully subject to the obligations of confidentiality stated herein.

Misuse. In the event the Receiving Party becomes aware of any actual or suspected misuse, disclosure or loss of Confidential Information, the Receiving Party shall promptly: (a) notify the Furnishing Party; (b) furnish to the Furnishing Party the full details of the misuse, disclosure or loss, and make reasonable efforts to assist the Furnishing Party with investigating and/or preventing the reoccurrence of the misuse, disclosure or loss of Confidential Information; (c) take such actions as may be reasonably requested by, and cooperate in all reasonable respects with, the Furnishing Party in order to minimize the violation and damages.

1.7 Intellectual Property; Licensing

As between the Parties, the Service, including any guidelines, documentation or other materials relating to the Service, as well as any modifications or enhancements thereto, and the Intellectual Property Rights related thereto, shall be owned in their entirety solely by ViaBill. Seller agrees not to copy, modify, distribute, sell, or lease any part of the Service, or reverse engineer or attempt to extract the source code of the Service.

ViaBill grants Seller a non-exclusive, revocable, non-sublicensable, non-transferable, limited license to (a) use the software provided or made accessible to Seller solely to make the Service available to Customers on its Site, and (b) use the ViaBill marks in accordance with ViaBill’s marketing guidelines or as otherwise authorized by ViaBill in writing. Such licenses are for the sole purpose of enabling Seller to use and enjoy the benefit of the Service as provided by ViaBill, in the manner permitted by these General Terms and Conditions. Title to and ownership of such software, marks or any other Intellectual Property Rights of ViaBill will remain with ViaBill and all use of any ViaBill Intellectual Property Rights will inure to the sole benefit of ViaBill. Seller will not obtain any right, title or other interest in ViaBill’s Intellectual Property by virtue of these General Terms and Conditions. Upon termination of these General Terms and Conditions, all license rights granted hereunder will cease, and all such rights shall revert to ViaBill.

For purposes of these General Terms and Conditions, Intellectual Property Rights means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any acquired goodwill), service marks, trade names, business names, internet domain names, e-mail address names, copyrights (including rights in computer software), moral rights, database rights, design rights, rights in know-how, rights in confidential information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, and any application for the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.

1.8 Dispute Resolution

Many inquiries and disputes can be resolved quickly by contacting Seller’s designated ViaBill account representative. If Seller’s concerns are not resolved to Seller’s satisfaction and either Seller or ViaBill desire legal action, Seller and ViaBill agree to resolve those disputes through binding arbitration binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury. Instead, a neutral arbitrator will decide and the arbitrator’s decision will be final except for a limited right of review under the FAA.

Covered Disputes. Seller and ViaBill agree that each may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both Seller and ViaBill agree otherwise, the arbitrator(s) may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative or class proceeding. Also, the arbitrator(s) may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded will not affect other Sellers. Notwithstanding the foregoing, ViaBill may bring any claim relating to infringement of our intellectual property rights in U.S. federal court.

Initiating Arbitration. A party who intends to seek arbitration must first send the other party a written notice describing the dispute. Seller should send this notice to ViaBill at legal@viabill.com. Include Seller’s business name, address, how to contact Seller, a brief description of the nature of the dispute (include supporting documents if necessary) and the relief sought. Keep a copy of the notice for your records. ViaBill will send such notice to Seller to the mailing or email address on file associated with the Seller account; it is Seller’s responsibility to keep Seller’s mailing and email address up to date. If Seller and ViaBill are unable to resolve the claims described in the notice within 30 days after the notice is sent, Seller or ViaBill may initiate arbitration proceedings.

Small Claims Court Option. Instead of mailing a notice of dispute, Seller may sue ViaBill in small claims court in the county of Seller’s principal place of business or Manhattan, New York if Seller meets the court’s requirements.

One-Year Filing Requirement. Seller and ViaBill must file in small claims court or arbitration any claim or dispute (except intellectual property disputes) within one year from when it first could be filed; otherwise it will be barred.

Arbitration Proceedings. The AAA will conduct any arbitration under its Commercial Arbitration Rules (or if the value of the dispute is $75,000 or less whether or not Seller is an individual or how Seller uses the Services, its Consumer Arbitration Rules). For more information, see www.adr.org or call 1-800-778-7879. To start an arbitration where the value of the dispute is more than $75,000, submit a Commercial Demand for Arbitration Form (available at https://www.adr.org/Forms) with the appropriate fee to the AAA pursuant to the rules and fee schedule set forth in the Commercial Rules for arbitration (available at https://www.adr.org/active-rules). To start an arbitration where the value of the dispute is $75,000 or less, submit a Consumer Demand for Arbitration Form (form available at https://www.adr.org/Forms) with the appropriate fee to the AAA pursuant to the rules and fee schedule set forth in the Consumer Arbitration Rules (available at https://www.adr.org/active-rules). Be sure to also email a copy of the form to ViaBill at legal@viabill.com. In a dispute involving $25,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. Any in-person hearing will take place in the county of Seller’s principal place of business or Manhattan, New York. The arbitrator may award the same damages to Seller individually as a court could. The arbitrator may award declaratory or injunctive relief only to Seller individually to satisfy Seller’s individual claim. Under AAA Rules, the arbitrator rules on his or her own jurisdiction, including the arbitrability of any claim. But a court has exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity.

Confidentiality. Any arbitration shall be confidential, and neither Seller nor ViaBill may disclose the existence, contents or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Any settlement offer made by Seller or ViaBill shall not be disclosed to the arbitrator(s).

Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the AAA rules, unless otherwise stated in this Section. In the event the arbitrator(s) determine the claim(s) Seller asserts in the arbitration to be frivolous, Seller agrees to reimburse ViaBill for all fees associated with the arbitration paid by ViaBill on Seller’s behalf that Seller otherwise would be obligated to pay under the AAA rules. Seller will be responsible for all fees Seller is obligated to pay under the AAA rules.

Conflict. These General Terms and Conditions govern to the extent they conflict with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.

Severability. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then those parts won’t be arbitrated but will proceed in court, with the rest proceeding in arbitration. If any other provision of this Section is found to be illegal or unenforceable, that provision will be severed but the rest of this Section still applies.

Future Changes. Seller and ViaBill agree that if ViaBill makes any amendment to this Section (other than an amendment to any notice address or website link provided herein), the amendment will apply to disputes or claims governed by this Section that may arise between Seller and ViaBill in the future. ViaBill will notify Seller of amendments to this Section by posting the amended terms on MyViaBill at least 30 days before the effective date of the amendments and by providing notice through email. If Seller does not agree to these amended terms, Seller may close its Seller account within the 30-day period and Seller will not be bound by the amended terms.

1.9 Disclaimer of Warranty; Limitation of Liability.

THE SERVICE IS PROVIDED BY VIABILL ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, VIABILL MAKES NO REPRESENTATIONS OR WARRANTIES, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO OR ARISING OUT OF THE SERVICE OR THESE GENERAL TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

NEITHER VIABILL NOR ITS SUBSIDIARIES, PARENTS OR AFFILIATES, SHALL BE LIABLE TO SELLER OR ITS SUBSIDIARIES, PARENTS OR AFFILIATES, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT ANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THE SERVICE OR THESE GENERAL TERMS AND CONDITIONS.

VIABILL’S AGGREGATE LIABILITY TO SELLER FOR DAMAGES UNDER THESE GENERAL TERMS AND CONDITIONS WILL NOT UNDER ANY CIRCUMSTANCE EXCEED THE AMOUNT THAT SELLER HAS PAID FOR USE OF THE SERVICE FOR A PERIOD OF SIX (6) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT RESULTING IN SUCH LIABILITY, EVEN IF ANY SUBSEQUENT EVENT RESULTS IN FURTHER LIABILITY.

1.10 Indemnification

Seller agrees to indemnify, defend and hold harmless ViaBill, and its affiliates, sureties, officers, directors, agents, employees, parents and subsidiaries (ViaBill Indemnitees), from and against any and all liability, damages, costs, expenses, including reasonable legal fees and expenses, for any third party claim or demand (Claim), arising out of or related to: (a) Seller’s breach of its Seller terms, policies and other agreements with Customer, including for non-delivery, late delivery, or faults or defects in the item(s) purchased through the Service; (b) Seller’s breach of any representation, warranty, covenant or obligation under these General Terms and Conditions; (c) the gross negligence, fraud or willful misconduct on the part of Seller or its officers, directors, employees or representatives; (d) any actions taken by ViaBill in accordance with or in good faith reliance upon information or instructions provided by Seller or its agents or representatives; or (e) Seller’s violation of applicable law, including with respect to Claims from regulators regarding Seller’s Sales or the advertising of the Service on the Site.

If any Claim is asserted against any ViaBill Indemnitee, ViaBill will promptly provide written notice of such Claim to Seller. Seller shall have the right, by notifying ViaBill within ten (10) business days of its receipt of the notice of the Claim, to assume the entire control of the defense, compromise or settlement of the matter, including, at Seller’s expense, employment of counsel of Seller’s choice. Seller will not compromise or settle any Claim against the ViaBill Indemnitee without ViaBill’s prior written consent, which shall not be unreasonably withheld or delayed; provided that Seller may, however, effect a compromise or settlement of an action without ViaBill’s consent if: (i) there is no admission of guilt or liability by the ViaBill Indemnitee; (ii) the sole relief provided is monetary damages that are paid in full by Seller; (iii) the compromise or settlement entered into between the Seller and third party to the matter expressly provides that the compromise or settlement entered into between such parties, and all discussions between and among such parties to the matter surrounding the compromise or settlement, shall be kept confidential, and that no press releases or other public statements may be made concerning such compromise or settlement without the prior written consent of ViaBill; and (iv) ViaBill is made aware of the proposed compromise or settlement as reasonably early as practicable, and the proposed compromise or settlement includes the third party’s unconditional release of the ViaBill Indemnitee from all liability in respect of the Claim.

1.11 Other Terms

Amendment. Subject to Section 2.4 (Changes in fees), ViaBill may change these General Terms and Conditions at any time and ViaBill will notify Seller of such revised General Terms and Conditions by email or through MyViaBill. In the event of a change that materially affects Seller’s beneficial use of the Service, materially adversely impacts Seller’s rights, liabilities or obligations, or is reasonably expected to have a material impact on a Customer’s use of the Service, ViaBill will notify Seller of such change upon at least one (1) month’s prior notice that describes the proposed change in reasonable detail and the anticipated effective date of the change. During such one-month period, Seller may provide ViaBill with written notice to terminate its agreement to these General Terms and Conditions. Seller’s use or offering of the Service on the Site beyond such one-month period shall constitute Seller’s agreement to the changed terms. Seller may not revise these General Terms and Conditions except as agreed to in a Merchant Agreement Form or upon ViaBill’s prior written consent.

Assignment. ViaBill may assign its rights, liabilities or obligations under these General Terms and Conditions, including any assigned Payment Obligation, to any third party without the consent of Seller or Customer. Seller may not transfer its rights or obligations under these General Terms and Conditions to a third party without the prior written consent of ViaBill.

Notice. Seller must notify ViaBill via ViaBill.com or ViaBill’s relevant e-mail addresses, which can be found at ViaBill.com.

Governing Law; Venue. These General Terms and Conditions are subject to New York law without regard to that state’s conflict of laws and principles. In the event that the arbitration procedures in Section 1.8 (Dispute Resolution) do not apply, you agree that any and all disputes or claims that have arisen or may arise between you and ViaBill including federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation or any other legal theory, shall be resolved exclusively by the courts located in Manhattan, New York, you and ViaBill agree to exclusive jurisdiction and venue of the courts located in Manhattan, New York and you and ViaBill forever waive any right to assert forum non conveniens.

Independent Contractors. ViaBill and Seller are independent contractors to each other in performing their respective obligations under these General Terms and Conditions; and nothing in these General Terms and Conditions will cause or is intended to cause, an agency relationship between the Parties or the Parties to be treated as a partnership or joint venture.

Force Majeure. ViaBill is not responsible for any failure or delay in performing or complying with its obligations under these General Terms and Conditions as a result of causes beyond ViaBill’s reasonable control, including strikes or other labor disputes, lock-outs, civil unrest, acts of terror, acts of government, natural catastrophes, faults or ceasing of activities on the part of any of ViaBill’s service providers (including telecommunications and IT operators), power failures, fire, vandalism, hacking or DDoS attacks.

No Third Party Beneficiaries. These General Terms and Conditions are for the sole and exclusive benefit of the Parties. No other party (including any Customer), other than an affiliate of ViaBill, is a third party beneficiary to these General Terms and Conditions.

Severability. If any provision of these General Terms and Conditions is determined to be invalid or unenforceable, the remaining provisions of these General Terms and Conditions shall not be affected and shall remain binding and enforceable on the Parties. The failure by any Party to insist upon strict performance of any of the provisions contained in these General Terms and Conditions shall not constitute a waiver of that Party’s rights as set forth in these General Terms and Conditions, at law or in equity, or a waiver of any other provisions or subsequent default by any other Party in the performance of or compliance with any provision of these General Terms and Conditions.

2 PAYMENT

2.1 Fees

Set-up fee. Seller agrees to pay the set-up fee as specified and agreed to at the time of acceptance of these General Terms and Conditions. The set-up fee includes ViaBill technical support for integration assistance within a reasonable integration period.

Transaction fee. For each Captured ViaBill Sale, Seller agrees to pay a transaction fee of (a) 2.90% of the Purchase Amount plus (b) $0.30. Once due and payable to ViaBill, the transaction fee is non-refundable to Seller, including if Customer cancels or returns a purchased item to Seller.

Marketing Support. ViaBill will make commercially reasonable efforts to assist Seller, free of charge, with implementing ViaBill marketing materials on the Site, including ViaBill banner ads and text that can be used on the Site.

2.2 Settlement of Seller Payment

On the fifth (5th) business day following a Capture, ViaBill will settle to Seller’s designated bank account the Seller Payment for the Payment Obligation associated with such Capture, subject to ViaBill’s rights to withhold or setoff in Section 2.4 below.

2.3 Seller verification prior to receipt of Seller Payment. ViaBill will not settle any Seller Payments until it has completed its Due Diligence and Know Your Customer verification of Seller. Seller is responsible for providing all necessary documentation in order to enable ViaBill to complete its requirements under applicable laws and regulations. In the event Seller refuses to complete or fails to pass ViaBill’s KYC review, ViaBill will be under no obligation to transfer any Seller Payment to Seller. 

2.4 Withholdings and Setoff

ViaBill reserves the right to take any of the following actions in its sole discretion:

  • (a) Withhold from any Seller Payment, or setoff from any amounts owed to Seller or from claims that Seller may have against ViaBill, any amount that is owed or reimbursable, or reasonably anticipated to be owed, to ViaBill, including set-up, transaction and other Service fees, Customer payments to Seller in connection with an assigned Payment Obligation, overpayments to Seller, indemnifiable claims against Seller, refunds, reversals, and any fines, monetary penalties, liabilities or damages (collectively, Seller Obligations); or
  • (b) Invoice Seller for such Seller Obligations, and Seller agrees to pay the invoiced amount pursuant to the terms of the invoice.

ViaBill further reserves the right to withhold any Seller Payment (in whole or in part) if, in ViaBill’s reasonable determination: (i) Seller has failed to meet its obligations under these General Terms and Conditions (including under Section 1.3(d)) and is unable to promptly cure such failure to ViaBill’s satisfaction; (ii) Seller experiences a significant elevated level of refunds, returns or complaints relative to prior levels; or (iii) ViaBill reasonably suspects that Seller’s financial situation has deteriorated significantly. ViaBill may retain such withholding for as long as reasonably necessary to ensure that Seller has cured such failure or the relevant risk has been mitigated to ViaBill’s reasonable satisfaction. In the event of termination of these General Terms and Conditions, by ViaBill or Seller, ViaBill may withhold any Seller Payment owed to Seller until all amounts due to ViaBill are satisfied.

2.5 Changes in fees

ViaBill may change the fees charged to Seller for use of the Service upon at least one (1) month’s prior notice, during which period Seller may provide ViaBill with written notice to terminate its agreement to these General Terms and Conditions. If ViaBill does not receive a notice of termination within this one-month period, then Seller will be deemed to have agreed to such change in fees and the continued applicability of these General Terms and Conditions. In the event of typographical or other administrative errors in relation to any fee, ViaBill may correct such error immediately, and Seller may not terminate its agreement to these General Terms and Conditions for such corrections.

Terms and conditions updated in January 2019

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