StudioPay Terms & Conditions
StudioPay Terms & Conditions
By using Studio Designer, LLC (“StudioPay,” “we,” “our,” or “us”) payment processing services (the “Services”), the business organization listed as the “Sub-Merchant” on the Service sign up page (sometimes referred to as “you,” “your”, “user”) agrees to be bound by these payment terms and conditions (“Payment Terms”), the website’s Master Subscription Agreement (“Website Terms”), the website Privacy Policy (“Privacy Policy”), and all other terms, policies, agreements, and guidelines applicable to your use of the Services (hereby incorporated by reference (the “Additional Terms”)). If you are using the Services on behalf of a business, that business accepts these terms, and you represent to us that you have authority to bind that business or entity to these terms. The Services may only be used for business purposes in the fifty states of the United States of America and the District of Columbia and Canada. Defined terms will have the same meaning as those found in the Website Terms, unless otherwise re-defined herein.
- THE STUDIOPAY SERVICES
- Our Role
We developed our Services to make it easy for you to accept credit card, debit card, and ACH payments online (“Online Payments”) from your customers so you can focus on growing your business. Our Services help you accept and process credit card, debit card, and Automated Clearing House (“ACH”) payments from your customers who want to pay you for your services. StudioPay’s Services support ACH Networks and cards including US-issued and some non-US issued cards with a Visa, MasterCard, Discover, or American Express logo (collectively the “Card Networks”) including credit, debit, and pre-paid cards. StudioPay is not a bank or a financial institution, and StudioPay does not offer banking services as defined by the United States Department of Treasury. In addition, we do not assume any liability for the services sold using our Services. You are not required to accept any card brand as a condition of receiving the Services.
In order to provide the Services, we must enter into agreements with Card Networks, ACH Networks, Payment processors, acquiring banks, and other third-party service providers (“TPSPs”). As such, in addition to registering and creating a Sub-Merchant account with StudioPay (a “StudioPay Sub-Merchant Account”), certain TPSPs may require that any Sub-Merchant that signs up for a StudioPay Sub-Merchant Account to use the Services also enter into an agreement directly with, and agree to the terms and conditions stipulated by, such TPSP (collectively, “TPSP Agreements”). By accepting or otherwise agreeing to these Payment Terms and utilizing our Services and/or those of a TPSP, you likewise will be required to agree to applicable TPSP Agreements. If you fail to agree to any such TPSP Agreements, we may suspend or terminate your StudioPay Sub-Merchant Account (see Section B – Registering for StudioPay).
2. Our Software
We provide the StudioPay application to enable you and your customers to use the Services.
3. Authorization for Handling of Funds
By accepting these Payment Terms, you authorize us to receive, disburse, and hold funds on your behalf when such funds from your card and/or ACH transactions settle from the Card Networks, ACH Networks, and/or our TPSPs. You further authorize StudioPay to instruct TPSPs on how your card and ACH transaction settlement funds should be disbursed to you (such as by ACH or a credit transaction) and the timing of such disbursements. Settlement funds will be held in a deposit account with a TPSP pending disbursement of the funds to you in accordance with these Payment Terms. You agree that you are not entitled to any interest or other compensation associated with the settlement funds held by a TPSP pending settlement to your designated bank settlement account (“Bank Account”), that you have no right to direct the TPSP deposit account holding the settlement funds, and that you may not assign any interest in the TPSP deposit account. We may periodically make available to you information on the payments management dashboard regarding anticipated settlement amounts received on your behalf from the Card Networks, ACH Networks, and/or our TPSPs that are being held pending settlement. This settlement information does not constitute a deposit or other obligation of StudioPay or a TPSP to you. This settlement information reflected on the payments management dashboard is for reporting and informational purposes only, and you are not entitled to, and have no ownership or other rights in settlement funds, until such funds are credited to your Bank Account. Your authorizations set forth herein will remain in full force and effect until your StudioPay Sub-Merchant Account is closed or terminated.
4. Payment Methods
StudioPay will only process transactions that have been authorized by the applicable Card Network, card issuer, ACH Network, or TPSP providing transaction services. StudioPay does not guarantee or assume any liability for transactions authorized and completed which may later be subject to Reversal (as defined herein) or Chargeback (as defined herein) or which were later determined to be fraudulent, provided StudioPay reasonably complied with these Payment Terms. You are responsible for all Reversal or Chargeback transactions, regardless of the reason for, or timing of, the Reversal or Chargeback. StudioPay may add or remove one or more payment mediums and supported payment cards at any time. If we do so, we will use reasonable efforts to give you prior notice of the removal.
5. Payout Schedule
“Payout Schedule” refers to the time it takes for us to initiate a transfer to your designated Bank Account of settlement funds arising from transactions processed through the Services. Once your Bank Account information has been reviewed, StudioPay will initiate transfer of settlement funds (net of Fees (as defined herein), Chargebacks, Reversals, and other funds owed to us for any reason) the terms of which will be made available to you when you log into to your payments management dashboard. The settlement funds will be credited to your Bank Account in accordance with your fee schedule. We are not responsible for any action taken by the institution holding your Bank Account that may result in some or all of the funds not being credited to your Bank Account or not being made available to you or any delays on the part of the institution holding your Bank Account. You can contact StudioPay to inquire about changing the timing of your Payout Schedule. Upon submitting a request, you will be informed of the process and requirements for StudioPay to review your Payout Schedule.
We reserve the right to change the Payout Schedule or suspend payouts to your Bank Account should we determine it is necessary due to pending disputes, excessive or anticipated excessive Chargebacks, Reversals, returns, or refunds, or other suspicious activity associated with your use of the Services, or if required by law or court order.
6. StudioPay Fees
You agree to pay the fees (“Fees”) assessed by us to you for providing the Services described in these Payment Terms. These Fees will be calculated pursuant to your Fee Schedule on the payments management dashboard and incorporated into these Payment Terms by reference. We reserve the right to revise our Fees at any time and will use reasonable efforts to provide you with a thirty (30) day notice period.
You acknowledge that you are also responsible for any fees, costs, expenses, penalties, or fines imposed on StudioPay or directly to you by any of our TPSPs or financial institution as a result of your activities.
7. Customer Service
Subject to the disclaimers set forth herein, we will provide you with customer service to resolve any issues relating to your StudioPay Sub-Merchant Account, your card and/or ACH payment processing, your use of our software, and the distribution of funds to your Bank Account. However, you, and you alone, are responsible for providing service to your customers for any and all issues, including but not limited to issues arising from the processing of customers’ cards and/or ACH payments through the Services.
8. Taxes
It is your responsibility to determine what, if any, taxes apply to the sale of your products and services and/or the payments you receive in connection with your use of the Services (“Taxes”). It is solely your responsibility to assess, collect, report, or remit the correct Taxes to the proper tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. You acknowledge that we may make certain reports to tax authorities regarding transactions that we process and merchants to which we provide card and/or ACH payment services.
Pursuant to the Internal Revenue Code, merchants acquiring entities and third-party settlement organizations are required to file an information return with the Internal Revenue Service (“IRS”) for each calendar year, reporting all payment card transactions and third-party network transactions with merchants occurring in that calendar year. You acknowledge that we will report to the IRS the total amount of the payments you receive each calendar year as required by law.
9. Your Data and Network Security Obligations
You are fully responsible for the security of data on your site or otherwise in your possession. You agree to comply with all applicable international, state and federal laws and rules in connection with your collection, security and dissemination of any personal, financial, card, ACH, or transaction information (defined as “Data”) on your site. You agree that at all times, you shall be compliant with the Payment Card Industry Data Security Standards (“PCI-DSS”) and the Payment Application Data Security Standards (“PA DSS”), as applicable. The steps you will need to take to comply with PCI-DSS and PA-DSS when using the Services will vary based on your implementation. If we believe it is necessary based on your implementation of the Services, and if we request it of you, you will promptly provide us with documentation evidencing your compliance with PCI-DSS and/or PA-DSS. You also agree that you will use only PCI-compliant service providers in connection with the storage, or transmission of Data defined as a card/account holder’s account number, expiration date, and CVV2. You must not store CVV2 Data at any time. Information on the PCI-DSS can be found on the PCI Council’s website. It is your responsibility to comply with these standards.
10. StudioPay Data Security and Fraud Controls
By providing you with the Services, StudioPay is not a “data processor” or “processor” as such terms are defined by any international, state, or federal law. To the extent it may be determined that StudioPay plays any role in collecting, processing, storing, or disseminating personally identifiable information (“PII”), StudioPay will use commercially reasonable efforts to implement and maintain reasonable administrative, technical, and physical procedures to protect Data and PII regarding you and your customers that may be stored in our servers from unauthorized access and accidental loss or modification. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such PII for improper purposes. You acknowledge that, if applicable, you provide this PII regarding you and your customers at your own risk. We recommend you review our Privacy Policy, which will help you understand how we collect, use and safeguard the information you provide to us.
StudioPay may provide or suggest security procedures and controls intended to reduce the risk to you of data breach or fraud (“Security Controls”). These Security Controls may include processes or applications that are developed by Studio Designer or by third parties. You agree to review all Security Controls and choose those that are appropriate for your business to protect against unauthorized transactions and, if necessary, use other procedures and controls not provided by us. Disabling or failing to properly use Security Controls increases your exposure to unauthorized transactions. Keep in mind that you are fully responsible for the use of lost or stolen Data that is used to purchase products or services from your business. Studio Designer will not be liable for losses resulting from the use of lost or stolen Data with the Services, even if StudioPay provides you with suggested Security Controls.
You are also strictly responsible for establishing and maintaining commercially reasonable security measures to safeguard against unauthorized transmissions and network infections while interacting with or using the Services. You agree and warrant that such procedures will include, but not be limited to, security technology (e.g., secure webservers) that provides a minimum level of security equivalent to 128-bit RC4encryption technology for the entry and transmission of card transactions and/or ACH Entries over the Internet, and network security to safeguard account information and access from unauthorized parties. You further agree and warrant that no individual will be allowed to initiate transactions and/or transfers of funds in the absence of proper supervision and safeguards and agrees to take reasonable steps to maintain the confidentiality of the Security Controls and any passwords, codes, security devices, and related instructions provided by StudioPay or a TPSP in connection with the Security Controls provided to you.
If you believe or suspect that any such information or instructions have become known or accessed by unauthorized persons, you agree to notify Studio Designer immediately, followed by written confirmation. The occurrence of unauthorized access will not affect the processing of any card transactions and/or ACH transfers made in good faith by StudioPay or any TPSP prior to receipt of such notification and within a reasonable time period to prevent unauthorized transactions/transfers. If a card transaction and/or ACH Entry (or request for cancellation or amendment thereof) received by StudioPay purports to have been transmitted or authorized by you, it will be deemed effective and you shall be obligated to pay StudioPay the amount of such card transaction and/or ACH Entry even though the card transaction and/or ACH Entry was not authorized by you, provided that StudioPay accepted the card transaction and/or ACH Entry in good faith and acted in compliance with the security procedures with respect to such card transaction and/or ACH Entry. In the event of any unauthorized instructions, you agree to cooperate and to provide such information as we may reasonably request to investigate and recover any resulting loss.
11. Audit Right
If we believe that a security breach or compromise of Data has occurred, we may require you to have a third-party auditor that is approved by us conduct a security audit of your systems and facilities and issue a report to be provided to us and the TPSP.
12. Confidentiality
You and StudioPay hereby represent and acknowledge to each other that in the course of the performance of their respective obligations, each party may make available to the other party certain confidential information pertaining to each party’s business and operations (“Confidential Information”). Confidential Information includes, but is not limited to, credit, debit or other payment cardholder information, software, pricing, methods, policies, applications, policy forms, underwriting criteria and manuals, policy issuance and rating software, rates, loss experience, financial analyses, personal information, and customer data, whether disclosed before or after the effective date of these terms. Confidential Information shall not include information that: (i) at the time of disclosure is generally available to the public; (ii) has been provided to the recipient of the other party’s Confidential Information (the “Receiving Party”) by another party not bound by a confidentiality agreement; (iii) relates to a request of auditors or any regulatory authority responsible for the regulation of either party; or (iv) are disclosed pursuant to the subpoena power or order of any court, tribunal, regulatory authority, or other body so empowered; provided that such disclosure is limited to the purpose for which it is intended and reasonable measures will be taken to ensure that the confidential nature of documents or information will be maintained. The parties hereby agree, as a condition to being provided the Confidential Information, that neither party will use any Confidential Information except in connection with the performance of duties hereunder and that the Receiving Party shall protect and safeguard the other party’s (“Disclosing Party”) Confidential Information with at least the same degree of care used to protect its own Confidential Information, but in no event less than a commercially reasonable degree of care. The parties agree not to disclose any Confidential Information to anyone other than employees, officers and directors of such party, that have a need to know, and to cause all such persons to abide by these Payment Terms. Upon termination of these Payment Terms or the request of the Disclosing Party, the Receiving Party shall promptly return all copies of all Confidential Information furnished by the Disclosing Party, and shall promptly destroy all other Confidential Information, including all copies of notes, analyses, compilations, studies, or other physical or electronic documents created by the Receiving Party, and certify in writing to the Disclosing Party that such copies have been destroyed. The provisions of this section shall survive termination of these Payment Terms. Breach of this section may be grounds for immediate termination by the Disclosing Party.
13. Your Privacy
Privacy and the protection of personal information is very important to us. You acknowledge that you have received, read in full, and agree with the terms of our Privacy Policy, linked to and incorporated into these Payment Terms by reference, which contains your consent to our collection, use, retention, and disclosure of personal information as well as other matters. The Privacy Policy also explains how and for what purposes we collect, use, retain, disclose, and safeguard the information you provide to us. You also acknowledge that we or our payment processor is required to report your business name and the name of your principals to the MATCH listing maintained by MasterCard and accessed and updated by Visa and American Express or to the Consortium Merchant Negative File maintained by Discover, if applicable, pursuant to the requirements of the Network Rules (as defined below, in Section A.16). You specifically consent to the fulfillment of the obligations related to the listing by us or our TPSPs and to the listing itself and you waive and hold harmless us or our TPSPs from all claims and liabilities you may have as a result of such reporting.
14. Privacy of Others
You represent to StudioPay that you are and will continue to be in compliance with all applicable privacy laws. You further represent that you have obtained all necessary rights and consents under applicable law to disclose to StudioPay – or allow StudioPay to collect, use, retain, and disclose – any Data that you provide to us or authorize us to collect, including information that we may collect directly from your end users via cookies or other means. As between you and StudioPay, you are solely responsible for disclosing to your customers that StudioPay is processing Online Payments for you and obtaining Data from such customers.
If you receive information about others, including cardholders, through the use of the Services, you must keep such information confidential and may only use it in connection with the Services. You may not disclose card or other information about others to any third party, other than in connection with processing a card or ACH transaction requested by your customer under the Services and in a manner consistent with PCI-DSS and applicable law.
15. Restricted Use
You are required to obey all laws, rules, and regulations applicable to your use of the Services (for example, those governing financial services, consumer protections, privacy, unfair competition, anti-discrimination, or false advertising). In addition to any other requirements and/or restrictions set forth in these Payment Terms, any TPSP Agreement, or any other StudioPay agreement or terms you shall not: (a) utilize the credit available on any card to provide cash advances to cardholders; (b) submit any card/ACH transaction for processing that does not arise from your sale of products or services to a customer, or acceptance of a bona fide charitable donation; (c) act as a payment intermediary or aggregator or otherwise resell our Services on behalf of any third party; (d) send what you believe to be potentially fraudulent authorizations or fraudulent card/ACH transactions; or (e) use StudioPay in a manner that Visa, MasterCard, Discover, American Express, any other Card Network, NACHA, or other payment network reasonably believes to be an abuse of such network or a violation of its rules.
Notwithstanding anything else contained herein to the contrary, you further agree not to, nor to permit any third party to, do any of the following: (i) export the Services, which may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII); (ii) engage in any activity that may be in violation of regulations administered by the United States Department of the Treasury’s Office of Foreign Asset Control (31 C.F.R. Parts 500-599) including, but is not limited to, the provision of Services to or for the benefit of a jurisdiction, entity, or individual blocked or prohibited by relevant sanctions authorities, including but not limited to activities in Iran, Cuba, North Korea, Syria, or the Crimean Region of the Ukraine; (iii) access or attempt to access StudioPay systems, programs, or Data that are not made available for public use whether by manual process or robot, spider, scraper, or other automated means; (iv) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way material from StudioPay or received through your use of StudioPay’s Services; (v) permit any third party to use and benefit from the Services via a license, sublicense, transfer, assignment, rental, lease, timesharing, service bureau, or other arrangement; (vi) transfer any rights granted to you under these Payment Terms; (vii) work around any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services – or decompile, disassemble, or otherwise reverse engineer the Services – except to the extent that such restriction is expressly prohibited by law; (viii) perform or attempt to perform any actions that would interfere with the normal operation of the Services, prevent access to or use of the Services by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; (ix) use the Services for any illegal activity or goods or in any way that exposes (A) StudioPay, (B) our partners, subsidiaries, and affiliates (collectively, “Affiliates”), (C) our TPSPs, or (D) any StudioPay users or customers to harm; (x) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including but not limited to material harmful to children or violative of any third-party privacy rights; (xi) upload to StudioPay software or Services or use the Services to send or store viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs; (xii) attempt to gain unauthorized access to the Services; or (xiii) otherwise use the Services except as expressly allowed under these Payment Terms.
16. Suspicion of Unauthorized or Illegal Use
We reserve the right to not authorize or settle any transaction you submit which we believe is in violation of these Payment Terms, any TPSP’s Agreement, any other StudioPay terms or agreement, or which exposes you, other StudioPay users, our TPSPs, or StudioPay to harm, including but not limited to fraud and other criminal acts. StudioPay may suspend your account, place your account on hold, or suspend payouts to investigate any such suspected violations. In certain circumstances we may determine that the establishment of a reserve amount is necessary to provide the Services, including the full amount of the funds received for your transaction, to be held for a period of time, or that additional amounts be held in reserve. The reserve amount may include (i) any funds payouts made or due to you for transactions submitted to the Services, or (ii) amounts available in your Bank Account by means of ACH debit to that Bank Account, or (iii) other sources of funds associated with your StudioPay Account. You are hereby granting us authorization to share information with law enforcement about you, your transactions, or your StudioPay Sub-Merchant Account if we reasonably suspect that your use of StudioPay has been for an unauthorized, illegal, or criminal purpose.
17. Card Network Rules
The Card Networks have established guidelines, bylaws, rules, and regulations (“Network Rules”). You are required to comply with all applicable Network Rules that are applicable to merchants. You can review portions of the Network Rules on each of the respective Visa, MasterCard, Discover, and American Express.
Visa – Credit Card Processing Fees & Interchange Rates available at https://usa.visa.com/support/small-business/regulations-fees.html
Mastercard – Small & Medium Business Solutions Payment Solutions available at https://www.mastercard.com/global/en/business/overview.html
American Express – available at https://www.americanexpress.com/en-gb/merchant/merchant-fees.html
The Card Networks reserve the right to amend the Network Rules. StudioPay reserves the right to amend these Payment Terms at any time with notice to you as necessary to comply with Network Rules or otherwise address changes in the Services.
You acknowledge that the Network Rules may require that you enter into a direct merchant relationship with our payment processor if and when you become a high-volume merchant (currently determined to be $1,000,000 per year in the applicable Card for VISA and MasterCard), and upon conversion, you will be bound by the payment processor’s then current Commercial Entity Agreement.
18. NACHA Rules; Additional Rules
In addition to general compliance with U.S. law and with Network Rules, StudioPay is required, pursuant to one or more agreements with TPSPs, to ensure that all Sub-Merchants specifically comply with the following rules, regulations, and acts when using the Services and/or the services of TPSPs: (a) the National Automated Clearinghouse Association (“NACHA”) Operating Rules and Operating Guidelines governing the ACH Network (as amended from time to time, the “NACHA Rules”); (b) the Electronic Fund Transfer Act; (c) the Unlawful Internet Gambling Enforcement Act; (d) The Consumer Financial Protection Bureau; (e) Regulation E; (f) the laws, regulations, and orders administered by Financial Crimes Enforcement Network (“FinCEN”); (g) the Office of Foreign Assets Control regulations; (h) the Uniform Commercial Code (“UCC”); and (i) any similar state laws and regulations, and to the extent the same may be applicable to your use of the Services, you agree to comply with each of these sets of rules.
19. TPSP Agreements
In addition to these Payment Terms, you may be required to agree to be bound by certain TPSP Agreements as set forth in Section E. By agreement to these Payment Terms (by “click through” or otherwise), you also agree to the applicable provisions of the relevant TPSP Agreements, effective as of the date you agree to these Payment Terms and to the extent applicable to your Services.
20. Disclosures and Notices
You agree that StudioPay can provide disclosures and notices regarding the Services to you by posting such disclosures and notices on our website, emailing them to the email address listed in your StudioPay Sub-Merchant Account, or mailing them to the address listed in your StudioPay Sub-Merchant Account. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy. Such disclosures and notices shall be considered received by you within twenty-four (24) hours of the time it is posted to our website or emailed to you. It is your responsibility to maintain a valid email address associated with your StudioPay Sub-Merchant Account and to monitor the email address you provide us.
21. References to Our Relationship
You agree that, from the time you begin processing card and/or ACH payments with StudioPay until termination of your StudioPay Sub-Merchant Account with us, we may identify you as a customer of StudioPay. Neither you nor we will imply any untrue sponsorship, endorsement, or affiliation between you and StudioPay.
22. Additional Services
From time to time, we may offer you additional features or services (“Additional Services”), which may be subject to additional or different terms of service, including any Additional Terms. As with the Services, you may not use these Additional Services unless you agree to the applicable terms of service and the appropriate fees. Except where expressly stated otherwise, your use of Additional Services will have no impact on the applicability of these Payment Terms regarding the Services.
B. REGISTERING FOR STUDIOPAY
- Registration
The Studio Services are only made available under these Payment Terms to persons in the United States and Canada that operate a business selling products or services, or to accept donations for a bona fide charitable organization. The StudioPay Services are not made available to persons to accept card payments for personal, family, or household purposes. To use StudioPay to receive payments, you will first have to register and create a Studio Sub-Merchant Account. When you register with StudioPay, we will collect basic information including your name, company name, location, email address, tax identification number, and phone number.
You may only register as a business organization. You must also provide information about an owner or principal of the business and you must be authorized to act on behalf of the business and have the authority to bind the business to these Payment Terms. To sign up a business to use the Services, you must agree to these Payment Terms on behalf of the business. If you have so agreed, the term “you” will mean you, the natural person, as well as the business organization that you represent.
2. Company Descriptions and Site URL
As part of your registration, you must provide your site URL and the name under which you do business, which may be the business’s legal name or a DBA. These two fields may appear in your customers’ credit or debit card statements. To avoid customer confusion and transaction disputes, you must enter a description that clearly identifies your business as well as an accurate site URL.
3. Verification; and Underwriting
To verify your identity, we will require information including your business tax identification number, physical location, and date of birth for all owners who own 25% or more of the legal entity. We may also ask for additional information to help verify your identity and assess your business risk including business invoices, a driver’s license or other government-issued identification, or a business license. We may ask you for certified financial statements. We may also request information regarding whether you or any of your affiliates, subsidiaries, or owners who own 25% or more of the legal entity have ever had or applied for an account with Studio. We reserve the right to request verification information regarding persons authorized to utilize or make changes to your account. We may request your permission to do a physical inspection at your place of business and to examine books and records that pertain to your compliance with these Payment Terms. Your failure to comply with any of these requests within thirty (30) days may result in rejection, suspension, or termination of your Studio Sub-Merchant Account.
StudioPay may use your information to apply for card merchant acquiring accounts on your behalf with certain Card Networks and/or TPSPs, and you hereby authorize us to do so. If we, a Card Network, or other TPSP request that you do so, you will also be required to enter into a direct agreement with such Card Network or other TPSP in addition to these Payment Terms. In that case, unless you expressly inform us in writing otherwise, you hereby authorize StudioPay to continue to manage your Card Network and/or other TPSP account on your behalf and to cause funds settled from Card Network and/or other TPSP transactions to be deposited to an omnibus bank account designated by StudioPay for your benefit.
After we have collected and verified all your information, StudioPay will review your account and determine if you are eligible to use the Services. StudioPay may also share your information with our TPSPs, each of which may also make a determination regarding your eligibility. StudioPay reserves the right to not only request additional information to assess your business risk, but also to deny your eligibility for an account in StudioPay’s sole discretion for any reason. We will notify you once your account has been either approved or deemed ineligible for use of the Services.
By accepting these Payment Terms, you authorize us to retrieve information about you by using third parties, including credit bureaus and other information providers. You acknowledge that such information retrieved may include your address history, credit history, and other data about you. StudioPay may periodically update this information to determine whether you continue to meet our eligibility requirements.
You agree that StudioPay is permitted to contact and share information about you and your application (including whether you are approved or declined), and your use of StudioPay with our TPSPs. This includes sharing information: (a) about your transactions for regulatory or compliance purposes; (b) for use in connection with the management and maintenance of the program; (c) to create and update their customer records about you and to assist them in better serving you; and (d) to conduct StudioPay’s risk management process.
4. StudioPay Services – US only
By registering for a StudioPay Sub-Merchant Account, you confirm that you are either a legal resident of the United States or Canda, a United States or Canadian citizen, or a business entity authorized to conduct business by the state or province in which you operate. StudioPay may only be used to process payment for businesses in the fifty states of the United States of America and the District of Columbia and Canada. You may not export the Services directly or indirectly, and you acknowledge that the Services may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII).
By accepting these Payment Terms, you confirm that you will satisfy these requirements.
5. Prohibited Businesses
There are certain categories of businesses and business practices for which the StudioPay Services cannot be used (“Prohibited Businesses”). Most, although not all, of these Prohibited Business categories are imposed by Network Rules or the requirements of our TPSPs. By registering with StudioPay, you confirm that you will not use the Services to accept payments in connection with any of the Prohibited Businesses. If you are uncertain as to whether your business is a Prohibited Business or have questions about how these requirements apply to you, please contact us.
6. Additional Authorizations
Notwithstanding any other grant or authorization provided for in these Payment Terms, by registering with StudioPay and using the Services, you explicitly authorize and/or consent as follows: (a) for a period of two (2) years, or longer if required under the NACHA Rules, to grant to StudioPay such consents and/or authorizations as required under the NACHA Rules; (b) to authorize TPSPs to share with StudioPay information relating to you, including, without limitation, transaction details, and business or personal information; (c) to authorize StudioPay to add or modify via a TPSPs’ system, the Bank Account information associated with your settlement account with the TPSP; (d) to authorize TPSPs and their agents to transfer and process any Data relating to you or your customers (including personal Data), as required for the performance of their obligations to you; (e) to authorize StudioPay to serve as your authorized representative towards any use of TPSP services, and as such to authorize StudioPay to access and use the Data retained by such TPSPs with respect to your use of TPSP services; (f) to grant to StudioPay the right to instruct TPSPs to withhold Fees (as defined in below) from your funds; and (g) to authorize us and our TPSP to publish your, and any customer service information, in any media from time to time for the benefit of our customers and/or our TPSPs’ customers.
C. PROCESSING CARD TRANSACTIONS AND RECEIVING YOUR FUNDS
- Processing Card Transactions
As used herein, “Chargeback” means a request that a buyer customer files directly with his or her card company or card issuing bank to invalidate a processed payment. “Claim” means a challenge to a payment that you or a buyer customer files directly with StudioPay. “Reversal” means an event whereby StudioPay reverses the settlement of funds from a processed card transaction that you received because: (a) the card transaction is invalidated by the card issuer; (b) the settlement funds were sent to you in error by (i) StudioPay or our TPSPs, (ii) the processors, suppliers or licensors of StudioPay or our TPSPs, or (iii) any of the respective affiliates, agents, directors and employees of any of the entities listed in (i) or (ii) above; (c) the sender of the payment did not have authorization to send the payment (e.g. if the buyer/sender used a card that did not belong to the buyer/sender); (d) you received a payment for activities that violated these Payment Terms, any TPSP Agreement, or any other StudioPay agreement or terms; or (e) StudioPay decided a Claim against you.
You agree that you will honor all eligible cards presented for payment by your customers for your products and services in accordance with the Network Rules, these Payment Terms and any operating guides that we may provide you from time to time. You agree that you will obtain an authorization from the Card Networks for each card transaction, as required under the Network Rules, and will not submit a card transaction for settlement where there is a negative authorization, or the card is otherwise expired. You acknowledge that the existence of an affirmative authorization from us or the Card Networks does not mean that a particular card transaction will not be subject to a Chargeback, Reversal, or Claim at a later date.
StudioPay will provide a receipt to the customer at the conclusion of the purchase transaction that includes all information required under Network Rules and applicable law. We may offer you the ability to have funds settled to your Bank Account in a currency different from the one in which you accepted payment from a customer (“Multi-Currency Processing”). To use this service, you must provide us with a valid Bank Account for each currency for which you request settlement, based on our list of available settlement currencies. We may add or remove currencies from our list of available settlement currencies at any time.
If you use Multi-Currency Processing, we will identify at the time of charge the conversion rate that will apply to the charge. If you refund a charge, the conversion rate that will apply will be the rate in effect at the time of the refund, not the charge. By submitting a charge or refund for processing you will be deemed to have accepted the rate. You may choose not to use the Multi-Currency Processing service at any time.
You may also change the Bank Account information or other settings associated with your use of Multi-Currency Processing, but any such changes will only affect subsequent charges.
2. Payouts and Transaction History
We will pay out funds settling from the Card Networks to your designated Bank Account you provided when establishing your StudioPay Sub-Merchant Account in the amounts actually received (less our Fees, as defined below) for card transactions submitted to our Services. Alternatively, we may deposit the full amount in your Bank Account and then debit your Bank Account for an aggregate of transaction and service fees on a periodic basis. The payouts and debits will be made to and from this Bank Account. This Bank Account must be located at bank branch in the United States or Canada and held in the name of the business. You are responsible for the accuracy and correctness of information regarding your Bank Account. Funds for any given transaction will not be transferred to your Bank Account until the transaction is deemed complete. Transactions will be deemed complete when we have received funds settling from the Card Networks and when we or our TPSPs have accepted such funds. The actual timing of the transfers to your Bank Account of the settling funds will be subject to the Payout Schedule.
After each payout of card settlement funds to your Bank Account, we will update information in your StudioPay Sub-Merchant Account to reflect settlement. Information regarding your card transactions processed and settled with the Services (“Transaction History”) will be available to you when you log into to our website using your StudioPay Sub-Merchant Account. We provide a minimum of one (1) year of Transaction History on our website. Except as required by law, you are solely responsible for compiling and retaining permanent records of all transactions and other Data associated with your StudioPay Sub-Merchant Account, your Transaction History, and your use of the Services. StudioPay is not responsible for maintaining Transaction History or other records in a manner consistent with your record retention obligations; provided, however, you shall provide StudioPay with access to such Transaction History, in a timely manner and at your expense, as reasonably requested by StudioPay in order to comply with StudioPay’s obligations under these Payment Terms and any other terms and agreements between the parties. You also grant us permission to share records or other information required with the cardholder, the cardholder’s financial institution, and your financial institution to help resolve any disputes.
3. Suspension and Termination
In addition to the term and termination rights set forth in Section E.4 and elsewhere in these Payment Terms, either party may terminate any or all Services in accordance with their rights under these Payment Terms, including the card transaction processing and Multi-Currency Processing portions of the Services. StudioPay may suspend or terminate your use of the card transaction processing and Multi-Currency Processing portions of the Services for violation of these Payment Terms, any TPSP Agreement, any other StudioPay agreement or terms, NACHA Rules, Network Rules, any other applicable law, rule, or regulation, or for any other reason including, without limitation, acceptable limits for card transaction refunds, returns, Reversals and/or Chargebacks. StudioPay may also terminate or suspend the card transaction processing and Multi-Currency Processing portions of the Services if a Card Network and/or any TPSP requires such suspension or termination.
4. Reconciliations and Errors
Your Transaction History will be available to you when you log into the payments management dashboard. Except as required by law, you are solely responsible for reconciling your Transaction History with your actual card payment transactions. You agree to notify us of any discrepancies arising from such reconciliation and verification. We will investigate any reported discrepancies and attempt to rectify any errors that you or we discover. In the event StudioPay determines that you are owed money as a result of the discrepancy, we will transfer funds to your Bank Account in the next scheduled payout under the Payout Schedule. Your failure to notify us of an error or discrepancy in your Transaction History within sixty (60) days of when it first appears on your Transaction History will be deemed a waiver of any right to amounts owed to you in connection with any such error or discrepancy in processing your card payments.
If you submit or cause us to process transactions erroneously, you agree to contact us immediately. We will investigate any reported errors and attempt to rectify any errors that you or we discover by crediting or debiting your Bank Account as appropriate, and you agree to provide us with all information in your possession, in a timely manner and at your expense, regarding such errors in order for us to complete an investigation. For any error or reconciliation resulting in funds owed to StudioPay, you are immediately liable to StudioPay for the full amount of the reconciliation or error plus any associated fees, costs, expenses, fines, or penalties (including those assessed by our TPSPs). StudioPay will deduct the reconciliation or error amount (including any applicable any associated fees, costs, expenses, fines, or penalties (including those assessed by our TPSPs)) from settlement funds owed to you from the processing of other transactions. If the settlement amounts from such other transactions are not sufficient to satisfy the foregoing obligations to us, you agree that StudioPay may exercise such rights as are provided in Section C.9 to recover any such outstanding obligations.
You are solely responsible for accepting and processing reconciliations and errors related to your products and services; StudioPay has no responsibility or obligation for processing such reconciliations and errors. You may also be responsible for any fees incurred by StudioPay to resolve any errors. You also grant us permission to share records or other information required with the cardholder, the cardholder’s financial institution, and your financial institution to help resolve any disputes. Your failure to notify us of a processing error within sixty (60) days of when it first appears on your electronic Transaction History or your failure to provide us with requested information will be deemed a waiver of any right to amounts owed to you.
5. Refunds and Returns
By accepting these Payment Terms, you agree to submit any and all refunds and adjustments for returns of your products and services through the StudioPay Services to the cardholder’s card in accordance with the terms of these Payment Terms and Network Rules. Network Rules require that you will: (a) maintain a fair return, cancellation, or adjustment policy; (b) disclose your return or cancellation policy to customers at the time of purchase; (c) not give cash refunds to a customer in connection with a card sale, unless required by law; and (d) not accept cash or any other item of value for preparing a card sale refund.
Full refunds must be for the exact dollar amount of the original transaction including tax, handling charges, and other. The refund amount may not exceed the original sale amount except by an amount equal to any reimbursements to customer for postage costs incurred for product returns. You will use best efforts to process all refunds within sixty (60) days after the original transaction date, and you acknowledge that refunds processed after that time may not be capable of being processed.
For processed refunds, you are immediately liable to StudioPay for the full amount of the refund plus any associated Fees, costs, expenses, fines, or penalties (including those assessed by our TPSPs). StudioPay will deduct the refund amount (including any applicable any associated Fees, costs, expenses, fines, or penalties (including those assessed by our TPSPs)) from settlement funds owed to you from the processing of other transactions. If the settlement amounts from such other transactions are not sufficient to satisfy the foregoing obligations to us, you agree that StudioPay may exercise such rights as are provided in Section C.9 to recover any such outstanding obligations.
You are solely responsible for accepting and processing returns of your products and services; StudioPay has no responsibility or obligation for processing such returns.
6. Chargebacks
A Chargeback is typically caused when a customer disputes a charge that appears on their bill. A Chargeback may result in the Reversal of a transaction, with the amount charged back to you. You can be assessed Chargebacks for: (a) customer disputes; (b) unauthorized or improperly authorized transactions; I transactions that do not comply with Network Rules, these Payment Terms, any TPSP Agreement, or any other StudioPay agreement or terms; (d) transactions that are allegedly unlawful (e.g. as a result of fraud, phishing, or other illegal activity) or suspicious; I(e) any Reversals for any reason by our TPSPs or the cardholder’s bank.
When a Chargeback is issued, you are immediately liable to StudioPay for the full amount of the Chargeback plus any associated Fees, costs, expenses, fines, or penalties (including those assessed by our TPSPs). StudioPay will deduct the Chargeback amount (including any applicable any associated Fees, costs, expenses, fines, or penalties (including those assessed by our TPSPs)) from settlement funds owed to you from the processing of other transactions. If the settlement amounts from such other transactions are not sufficient to satisfy the foregoing obligations to us, you agree that StudioPay may exercise such rights as are provided in Section C.9 to recover any such outstanding obligations.
Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under these Payment Terms until such time that: (i) a Chargeback is assessed due to a customer’s complaint, in which case we will retain the funds; (ii) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired; or (iii) we determine that a Chargeback on the transaction will not occur.
7. Contesting your Chargebacks
You or StudioPay may elect to contest Chargebacks assessed to your StudioPay Sub-Merchant Account. StudioPay may provide you with assistance including notifications and software to help contest your Chargebacks. We do not assume any liability for our role or assistance in contesting Chargebacks.
You agree to provide us with the necessary information, in a timely manner and at your expense, to investigate or help resolve any Chargeback. You also grant us permission to share records or other information required with the cardholder, the cardholder’s financial institution, and your financial institution to help resolve any disputes. You acknowledge that your failure to provide us with complete and accurate information in a timely manner may result in an irreversible Chargeback being assessed.
If the cardholder’s issuing bank or our TPSPs do not resolve a dispute in your favor, we may recover the Chargeback amount and any associated fees from you as described in these Payment Terms.
We reserve the right, upon notice to you, to charge a Fee for mediating or investigating Chargeback disputes.
8. Excessive Chargebacks
At any point, StudioPay or our TPSPs may determine that you are incurring excessive Chargebacks. Excessive Chargebacks may result in additional fees, penalties, or fines. Excessive Chargebacks may also result in: (a) additional controls and restrictions to your use of the StudioPay Services, including without limitation, (i) establishment, or increases in the required funding, of reserve amounts, (ii) increases to your applicable Fees, or (iii) delays in your Payout Schedule; or (b) possible suspension or termination of your StudioPay Sub-Merchant Account and access to the Services. Our TPSPs may also place additional controls or restrictions as part of their own monitoring programs for merchants with excessive Chargebacks.
9. Collection and Recovery Rights
To the extent permitted by law, we may collect any obligations you or any of your affiliates, subsidiaries, predecessors, successors, assigns, and/or owners who own twenty-five percent (25%) or more of your business, owe us under these Payment Terms by deducting the corresponding amounts from funds payable to you arising from the settlement of transactions. Fees, costs, expenses, fines, or penalties (including those assessed by our TPSPs) associated with a particular transaction may be assessed at the time such a transaction is processed and will be first deducted from the funds received for such transactions. If the settlement amounts from any particular transaction are not sufficient to meet your current and past obligations to us, StudioPay may seek to recover any outstanding amounts that you owe us by: (a) deducting such amounts from funds payable to you arising from the settlement of other transactions; (b) charging or debiting such amounts to the credit card or Bank
Account card registered in your StudioPay Sub-Merchant Account; (c) deducting such amounts from any reserve amounts established by us or a TPSP; and/or(d) otherwise setting off such amounts against any amounts owed to you by us. If the amounts recovered following our exercise of any, or all, of the foregoing remedies are insufficient to satisfy your liability to StudioPay, you agree to pay StudioPay any outstanding amount owed to us immediately upon demand. Notwithstanding the foregoing, StudioPay shall be under no obligation to exercise any, or all, of the remedies described in Sections C.9(a)–(d) and may instead issue a demand for the full amount of your outstanding obligations. Your failure to fully pay such amounts upon demand will be a breach of these Payment Terms, and nothing contained in this Section C.9 shall in any way limit, or be interpreted as a waiver of, any other right that StudioPay may have under Section E, at law, or in equity to recover any obligation you owe to StudioPay. You will be liable to us for all costs associated with collection in addition to the amount owed, including, without limitation attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.
10. Security Interest; Guarantee
You, and any of your direct affiliates, subsidiaries, predecessors, successors, assigns and/or owners who own twenty-five percent (25%) or more of your business, grant us a lien and security interest in any reserve amounts, all card transactions (including future card transactions), any rights to receive credits or payments under these Payment Terms, and all deposits and other property of you possessed or maintained by us on your behalf. You will execute, deliver, and pay the costs and expenses for any documents we request to create, perfect, maintain, and enforce this security interest.
D) ACH SERVICE TERMS
- Overview
StudioPay, as a Third-Party Sender (as defined herein) under the NACHA Rules, offers services that allow you, as Originator (as defined herein), to request that StudioPay transmit originated/initiated Debit or Credit Entries (as defined herein) on your behalf to an ODFI (as defined herein) for ultimate transmission to a Receiver’s (as defined herein) (i.e. your customers’) account. If you choose to use the ACH portion of the Services, you hereby authorize: (a) StudioPay to transmit originated/initiated Entries on your behalf to an ODFI; and (b) such ODFI to (i) process Entries received from StudioPay in accordance with ODFI’s customary procedures to conform with the file specifications set forth in the NACHA Rules, (ii) transmit such Entries to the ACH Network for clearing and ultimate settlement with your Receivers, and (iii) settle for such Entries as provided for in the NACHA Rules. “Third-Party Sender” means StudioPay or any other organization that is not an Originator that has been authorized to transmit originated/initiated Entries on for the account of another, to an ODFI for transmission to the ACH Network. “Originator” means you or any other person that originates/initiates an Entry and has directly, or indirectly via a Third-Party Sender, authorized an ODFI to transmit such Entry to the ACH Network. “Receiver” means your customers or any other person that has authorized an Originator to initiate an Entry to the Receiver’s account at the RDFI (as defined herein). “Entry” means: (i) an order or request for the transfer of money to the account of a Receiver or general ledger account of an RDFI (a “Credit Entry”); (ii) an order or request for the withdrawal of money from the account of a Receiver or general ledger account of an RDFI (a “Debit Entry”); or (iii) the transmission of notice or data that is not an order or request for the transfer or withdrawal of funds. “ODFI” or “Originating Depository Financial Institution” means a financial institution that transmits Entries to the ACH Network for clearing and ultimate settlement with Receivers on behalf of Third-Party Senders and Originators. “RDFI” or “Receiving Depository Financial Institution” means a financial institution qualified by NACHA to receive Entries. “ACH Network” means the funds transfer system (network) governed by the NACHA Rules which provides for the clearing of electronic Entries for participating financial institutions and Third Party Senders.
2. StudioPay Fees
You will pay StudioPay the Fees and charges as provided in Section A.6 and on the Fee Schedule, as well as other amounts owed. Such other amounts shall include, without limitation, any amounts charged to StudioPay, the underlying ODFI, or you by NACHA, the administrator of the ACH Network, in connection with your use of the ACH portion of the Services.
3. Transaction Limits
You shall operate and use the ACH portion of the Services in accordance with the transaction limits approved by StudioPay and in accordance with the NACHA Rules. StudioPay may modify your transaction limits at any time upon reasonable notice to you. The transaction limits are displayed on the payments management dashboard and established based upon our risk review.
4. Types of Entries
StudioPay reserves the right to restrict the types of Entries that you may originate. StudioPay will transmit Entries on your behalf to the ODFI that fall within the following ACH Standard Entry Class (“SEC”) Codes: CCC and PPD. StudioPay reserves the right to amend the foregoing list of permitted Entries at any time in its sole discretion.
5. Sub-Merchant Compliance; Rejection of Entries
Notwithstanding anything to the contrary contained herein, Sub-Merchant, when using the Services, expressly acknowledges and agrees that: (i) Sub-Merchant will comply with these Payment Terms, any TPSP Agreement, any other StudioPay agreement or terms, the NACHA Rules, the Network Rules, and other applicable laws and regulations related to the operation and use of the ACH Network, which may include UCC Article 4A or Regulation E, as each is amended from time to time; (ii) it will not initiate any Entries that violate U.S. law; (iii) StudioPay and/or the ODFI may restrict the types of Entries you may originate; (iv) StudioPay or the ODFI may reject or refuse to process any Sub-Merchant Entry that Sub-Merchant originates/initiates which does not comply with the requirements of these Payment Terms, any TPSP Agreement, any other StudioPay agreement or terms, NACHA Rules, Network Rules, any other applicable law, or in StudioPay’s or the ODFI’s sole discretion; and (v) StudioPay reserves the right, as a Third-Party Sender, to audit the Sub-Merchant’s compliance with the NACHA Rules, the Network Rules, and other applicable laws and regulations related to the operation and use of the ACH Network, which may include UCC Article 4A or Regulation E, as each is amended from time to time. Sub-Merchant shall be responsible for correcting any Entries rejected by StudioPay or ODFI pursuant to Section D.5(iv) above, prior to resubmission.
6. ACH Authorizations
In addition to the authorizations described in Section B.6, you expressly authorize StudioPay, in its role as a Third-Party Sender, to originate Entries on your behalf as the Originator of such Entries.
You are solely responsible for obtaining authorization to debit your Receivers’ bank accounts for Entries, and you are solely responsible for ensuring such authorizations comply with the NACHA Rules, Network Rules, and any other applicable law. StudioPay will not be responsible for obtaining or maintaining any such authorizations or ensuring the authorizations comply with applicable laws. You further agree that you shall retain authorization for each such Entry for two (2) years after termination or revocation of such authorization or for such other period as required by the NACHA and Network Rules.
When you use the ACH portion of the Service, you represent and warrant that you have all necessary authorizations and approvals from your Receivers to permit StudioPay to transmit Entries on your behalf to the ODFI for transmission to the ACH Network for clearing and ultimate settlement with Receivers, and that each such Entry is accurate and timely. You further warrant that any Debit Entry that you initiate, and which is transmitted on your behalf, satisfies an obligation or corrects an error. StudioPay shall not be liable for any ACH return, reversal, or other failure (or any related costs) arising from your acts and omissions, including failure to obtain your customer’s authorization for a Debit Entry, and you agree to defend, indemnify, and hold StudioPay harmless for any claims arising from or relating to any acts or omissions by you under this section. StudioPay is permitted to document and store ACH authorizations, including timestamp and applicable ACH credentials.
7. Suspension and Termination
In addition to the term and termination rights set forth in Section E.4 and elsewhere in these Payment Terms, either party may terminate any or all Services in accordance with their rights under these Payment Terms, including the ACH portion of the Services. StudioPay may suspend or terminate your use of the ACH portion of the Services for violation of these Payment Terms, any TPSP Agreement, any other StudioPay agreement or terms, any NACHA Rules, Network Rules, any other applicable law, rule, or regulation, or for any other reason, including, without limitation, acceptable limits for ACH transaction refunds, returns chargebacks and/or, reversals. StudioPay may also terminate or suspend the ACH portion of the Services if the ODFI and/or any TPSP requires such suspension or termination.
8. Settlement; Payout Schedule
You acknowledge that funds paid to you by your customers through the ACH portion of the Services shall only be made available to you once the ODFI receives final settlement. StudioPay will initiate transfer of settlement funds (net of Fees, Chargebacks, and other funds owed to us for any reason) in accordance with the Payout Schedule, the terms of which will be made available to you when you log into to your payments management dashboard. The settlement funds will be credited to your Bank Account in accordance with your fee schedule.
We are not responsible for any action taken by the institution holding your Bank Account that may result in some or all of the funds not being credited to your Bank Account or not being made available to you or any delays on the part of the institution holding your Bank Account. You can contact StudioPay to inquire about changing the timing of your Payout Schedule. Upon submitting a request, you will be informed of the process and requirements for StudioPay to review your Payout Schedule.
We reserve the right to change the Payout Schedule or suspend payouts to your Bank Account should we determine it is necessary due to pending disputes, excessive or anticipated excessive chargebacks, reversals or refunds, returns, or other suspicious activity associated with your use of the Services, or if required by law or court order.
9. Reconciliations and Errors
You shall not have the right to cancel, amend, or reverse an Entry after its receipt by StudioPay. However, StudioPay may, in its sole discretion, use reasonable efforts to act on your request to cancel, amend, or reverse an Entry before transmitting to the ODFI. StudioPay makes no representations or warranties with respect to such requests and shall have no liability if it fails to effect such requests.
All other rights, obligations, and remedies applicable as between you and StudioPay with respect to ACH transaction reconciliations and errors shall be consistent with those described in Section C.4.
10. Refunds and Returns
In the event that StudioPay makes available to you any provisional credit pursuant to an ACH transaction and the ODFI does not receive the final settlement, the ODFI is entitled to a refund for the amount of the provisional credit. You agree that you shall be responsible for all such refunds, and StudioPay shall have the right to be reimbursed and recover such refunds or other amounts that are charged to StudioPay by the ODFI in connection with the ACH portion of the Services pursuant to these Payment Terms. All other rights, obligations, and remedies applicable as between you and StudioPay with respect to ACH transaction refunds and returns shall be consistent with those described in Section C.5.
11. Reversals; Chargebacks; Contesting Chargebacks; Excessive Chargebacks
All rights, obligations, and remedies applicable as between you and StudioPay with respect to ACH transaction reversals, chargebacks, contesting chargebacks, and excessive chargebacks shall be consistent with those described in Sections C.6, C.7, and C.8.
12. Collection and Recovery Rights
To the extent permitted by law, StudioPay may undertake any and all acts including, but not limited to, the exercise of any rights provided in Sections A.6, C.9, and C.10, as are necessary to collect, and to secure/protect our interest in, any amounts owing to us pursuant to your obligations to us under these Payment Terms.
13. Violation of Laws
You, as an Originator of Entries made under the NACHA Rules, hereby represent, warrant, and covenant to StudioPay that: (a) you will not seek to use the ACH portion of the Services in violation of any applicable law or regulation; and (b) no Entry delivered to StudioPay or the ODFI, if accepted by the ODFI, will cause StudioPay or the ODFI to be in violation of any regulation or sanction administered by the federal or state government or otherwise causes StudioPay or the ODFI to be in violation of federal or state law.
14. Audit and Review
You agree to permit StudioPay, the ODFI, and their designated third parties to audit, inspect, and review your policies and processes for purposes of ensuring your compliance with these Payment Terms, NACHA Rules, Network Rules, and any other applicable law. You agree to cooperate with any such audit and to respond to reasonable requests for information necessary to complete such audit in a timely manner.
15. Additional Limitation of Liability
In addition to the limitations on liability described in Section E.9, Studio Designer shall not be liable for any action or inaction by the ODFI or a third party (e.g., the ACH Network or the RDFI) that results in StudioPay’s failure to perform under these Payment Terms or the suspension, termination, restriction or other delay in StudioPay’s performance under these Payment Terms.
16. Additional Indemnity
In addition to the indemnification rights described in Section E.6, you will indemnify, defend, and hold us, Studio Designer, and our TPSPs (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, Taxes, penalties, interest, and expenses (including reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) your breach of any representation, warranty or covenant set forth in these Payment Terms; (b) your failure to perform your obligations as an Originator under the NACHA Rules, Network Rules, and any other applicable law; (c) your failure to maintain a sufficient balance in your StudioPay Sub-Merchant Account or to fund necessary reserve amounts to cover your obligations under these Payment Terms; (d) StudioPay’s effecting or attempt to effect your request for the cancellation, amendment, or reversal of an Entry; (e) StudioPay’s issuance of duplicate Entries; or (f) transactions involving Entries that are allegedly unlawful (e.g. as a result of fraud, phishing, or other illegal activity) or suspicious.
17. Relationship to Other Payment Terms
To the extent these ACH-specific terms conflict with the Payment Terms generally, these terms shall control with respect to the ACH portion of the Services and only to the extent of such conflict.
E. LICENSE, TERMINATION, AND OTHER GENERAL LEGAL TERMS
- Your License to Use the Services; Our Trademarks
StudioPay grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense or assign, to electronically access and use the Services solely to accept and receive payments and to manage the funds you so receive in a manner consistent with these Payment Terms and other documentation provided to you (the “License”). The Services include our website, any software, programs, documentation, tools, Internet-based services, components, images, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you by StudioPay. You will be entitled to download updates to the Services, subject to any additional terms made known to you at that time, when StudioPay makes these updates available. StudioPay may terminate this license at any time in the event that you use the Services in a manner inconsistent with this License or these Payment Terms.
We may also periodically make available certain StudioPay logos, trademarks, or other identifiers for your use (“StudioPay Marks”). If we do so, you will use them subject to and in accordance with StudioPay’s then current StudioPay Website Terms. StudioPay may limit or revoke your ability to use StudioPay Marks at any point.
2. Ownership – StudioPay Services and Intellectual Property
The Services are licensed and not sold. We reserve all rights not expressly granted to you in these Payment Terms. The Services are protected by copyright, trade secret, trademark, and other intellectual property laws. We own all interest, title, and other worldwide IP Rights (as defined below) in the Services and all copies of the Services, and nothing herein shall transfer any ownership rights to you. These Payment Terms do not grant you any rights to the StudioPay Marks.
For the purposes of these Payment Terms, “IP Rights” means: all patent rights; copyright, including rights in derivative works; moral rights; rights of publicity; trademark, trade dress and service mark rights, including such rights applicable to the StudioPay Marks; goodwill; trade secret rights; and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.
In addition, you may choose to, or we may invite you to, submit comments, recommendations, feedback, or ideas about the Services, including without limitation about how to improve the Services or our products (collectively, “Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place StudioPay under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non- confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, StudioPay does not waive any rights to use similar or related ideas previously known to StudioPay, or developed by its employees, or obtained from sources other than you and that once you submit an Idea or other feedback to StudioPay, you forfeit all rights and claims to ownership of such Idea.
3. Term
These Payment Terms are effective upon the date you agree to them (by indicating acceptance electronically or in writing) and continues so long as you use the Services or until terminated by you, StudioPay, or our TPSPs, subject to the specific provisions mentioned herein that shall survive termination.
4. Termination
You may terminate your agreement to these Payment Terms by closing your StudioPay Sub-Merchant Account at any time by following the instructions on our website in your StudioPay Sub-Merchant Account profile. We may terminate the provision of the Services under these Payment Terms and close your StudioPay Sub-Merchant Account at any time for any reason effective upon providing you notice in accordance with Section A.20 above. We may suspend or terminate your StudioPay Sub-Merchant Account and your access to the Services and any funds in your StudioPay Sub-Merchant Account if: (a) we determine in our sole discretion that you are ineligible for the Services because of the risk associated with your StudioPay Sub-Merchant Account, including without limitation significant credit or fraud risk, or for any other reason; (b) you do not comply with any of these Payment Terms, any TPSP Agreement, any other StudioPay agreement or terms, NACHA Rules, Network Rules, or any other applicable law, rule, or regulation; or (c) upon request of a TPSP, Card Network, or ODFI.
5. Effects of Termination
Upon termination and closing of your StudioPay Sub-Merchant Account, we will immediately discontinue your access to the Services. You agree to complete all pending transactions, stop accepting new transactions through the Services, and immediately remove all StudioPay and TPSP logos from your site (unless otherwise permitted to do so under a separate license from the TPSP). You will not be refunded the remainder of any Fees that you have paid for the Services if your access to or use of the Services is terminated or suspended. Any funds in our custody will be paid out to you subject to the terms of your Payout Schedule and subject to any offset rights we may have based on funds or Fees owed to StudioPay.
Termination does not relieve you of your obligations as defined in these Payment Terms, any TPSP Agreement, or any other StudioPay agreement or terms, and StudioPay may elect to continue to hold any funds deemed necessary pending resolution of any other terms or obligations defined in these Payment Terms, any TPSP Agreement, or any other StudioPay agreement or terms, including but not limited to refunds, returns, Reversals, Chargebacks, Fees, or other investigations or proceedings.
Upon termination you agree to: (a) immediately cease your use of the Services; (b) discontinue use of any StudioPay or other trademarks licensed under these Payment Terms, any TPSP Agreement, or any other StudioPay agreement or terms; (c) immediately remove any StudioPay references and logos from your site; and (d) promptly return all StudioPay Confidential Information. In addition, upon termination you understand and agree that: (i) the License granted under these Payment Terms shall end; (ii) we reserve the right (but have no obligation) to delete all of your information and StudioPay Sub-Merchant Account Data stored on our servers; (iii) we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Services, or any termination or suspension of the Services or deletion of your information or StudioPay Sub-Merchant Account Data; and (iv) you are still liable to us for any refunds, returns, Reversals, Chargebacks, Fees, or other amounts incurred by you or through your use of the Services prior to termination.
6. Your Liability
You are responsible for all Reversals, Chargebacks, claims, Fees, costs, expenses, fines, penalties, attorneys’ fees, and other liability arising out of or relating to your use of the Services and your breach of these Payment Terms, any TPSP Agreement, or any other StudioPay agreement or terms. You are responsible for any unauthorized or suspected unauthorized use of your account, the use of lost or stolen cards and/or ACH account details to purchase products or services from your business and selected, and implementing Security Controls that are appropriate for your business. You agree to reimburse your customer(s), Studio Designer, our TPSPs, and any third party designated by StudioPay or our TPSPs for any and all such liability.
StudioPay will have the final decision-making authority with respect to claims, including without limitation claims for refunds for purchased items that are filed with StudioPay by you or your customers. You will be required to reimburse Studio Designer for your liability. Your liability will include the full purchase price of the item (and in some cases you may not receive the item back). You will not receive a refund of any Fees paid to StudioPay.
Without limiting the foregoing, you agree to defend, indemnify, and hold harmless Studio Designer, our TPSPs, and their respective affiliates, agents, directors, and employees from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to: (a) your breach of any provision of these Payment Terms, any TPSP Agreement, or any other StudioPay agreement or terms; (b) your use of the Services, including without limitation any Reversals, Chargebacks, claims, Fees, costs, expenses, fines, penalties, and attorneys’ fees; (c) negligence or willful misconduct of your employees, contractors, or agents; (d) the License and/or your use of any StudioPay Marks, Confidential Information, or IP rights; and (e) all third-party indemnity obligations we incur as a direct or indirect result of your acts or omissions (including indemnification of any TPSP). Further, without limiting the foregoing, both parties agree to defend, indemnify, and hold harmless the other party and their respective employees and agents from and against any third party claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to (i) that party’s breach of any provision of this Agreement; or (ii) the gross negligence or willful misconduct of the indemnifying party’s employees, contractors, or agents.
If you are liable for any obligations to us or Studio Designer under these Payment Terms, we may recover any such amounts that you owe us or Studi Designer from settlement funds owed to you from the processing of transactions. If the settlement amounts from such transactions are not sufficient to satisfy your obligations to us or Studio Designer, you agree that StudioPay may exercise such rights as are provided in Section C.9 or elsewhere in these Payment Terms to recover any such outstanding obligations.
7. Representations and Warranties
The Services are controlled and operated from facilities in the United States. StudioPay makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States, foreign, and local laws and regulations, including but not limited to export and import regulations. You may not use the Services from a country embargoed by the United States, or if you are a person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
You represent and warrant to us that: (a) if you are a natural person, you are at least eighteen (18) years of age; (b) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under these Payment Terms; (c) the name and information identified by you when you registered are true and correct and are your name or business name under which you sell products and services; (d) any transaction submitted by you will represent a bona fide transaction for permitted products or services, or a charitable donation; (e) any transactions submitted by you will accurately describe the products or services sold and delivered to a purchaser, or a donation received for the purpose accurately described on your site; (f) you will fulfill all of your obligations to each customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the purchaser; (g) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no transaction submitted by you through the Services will represent a sale to any principal, partner, proprietor, or owner of your entity; (i) you will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner so as to interfere with the normal operation of the Services; (j) you are not (i) listed on the U.S. Department of Treasury, Office of Foreign Assets Control, Specially Designated Nationals and Blocked Persons List (available at www.treas.gov/ofac), (ii) listed on the U.S. Department of State’s Terrorist Exclusion List (available at www.state.gov), or (iii) located in or operating under license issued by a jurisdiction identified by the U.S. Department of State as a sponsor of international terrorism, by the U.S. Secretary of the Treasury as warranting special measures due to money laundering concerns, or as noncooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization of which the United States is a member; (k) you will not use the License, except as authorized herein; and (l) that you have provided a complete and accurate list/description of your business and personal information used to register your StudioPay account, the services and products you offer, and the industry in which you conduct business.
In the event of any change to the foregoing representations and warranties, you hereby agree to provide StudioPay with prompt notice detailing such change, as well as any other pertinent information requested by StudioPay regarding such change. Providing false or misleading information to StudioPay or violation of any of the foregoing or other representations and warranties in these Payment Terms will be considered a violation of these Payment Terms.
8. No Warranties
THE SERVICES AND ALL ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. USE OF THE SERVICES IS AT YOUR OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE SERVICES OR FROM: (I) STUDIOPAY; (II) OUR TPSPS; OR (III) ANY OF THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES OF ANY OF THE ENTITIES LISTED IN (I) OR (II) ABOVE (COLLECTIVELY, THE “DISCLAIMING ENTITIES” AND INDIVIDUALLY A “DISCLAIMING ENTITY”) WILL CREATE ANY WARRANTY FROM ANY DISCLAIMING ENTITY TO YOU. YOU SPECIFICALLY ACKNOWLEDGE THAT NEITHER STUDIOPAY NOR OUR TPSPS HAVE ANY CONTROL OVER THE PRODUCTS OR SERVICES THAT ARE PAID FOR WITH THE SERVICES, AND NEITHER STUDIOPAY NOR OUR TPSPS CAN ENSURE THAT YOUR CUSTOMERS WILL COMPLETE A TRANSACTION OR IS AUTHORIZED TO DO SO.
WITHOUT LIMITING THE FOREGOING, THE DISCLAIMING ENTITIES DO NOT WARRANT THAT THE INFORMATION THEY PROVIDE OR THAT IS PROVIDED THROUGH THE SERVICES IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT THE SERVICES WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY SUBJECT MATTER DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK – YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. THE DISCLAIMING ENTITIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT HOW LONG WILL BE NEEDED TO COMPLETE THE PROCESSING OF A TRANSACTION.
THE DISCLAIMING ENTITIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND NEITHER STUDIOPAY NOR OUR TPSPS WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, STUDIOPAY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF.
9. Limitation of Liability and Damages
IN NO EVENT SHALL A DISCLAIMING ENTITY (AS DEFINED IN SECTION E.8 ABOVE) BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO THESE PAYMENT TERMS OR THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL ANY OF THE DISCLAIMING ENTITIES BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR STUDIOPAY SUB-MERCHANT ACCOUNT OR THE INFORMATION CONTAINED THEREIN, OR YOUR FAILURE TO USE OR IMPLEMENT SECURITY CONTROLS THAT ARE APPROPRIATE FOR YOUR BUSINESS.
THE DISCLAIMING ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY: (A) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF SERVERS USED IN CONNECTION WITH THE SERVICES AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (C) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (D) ANY SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES; (E) ANY ERRORS, INACCURACIES OR OMISSIONS IN ANY CONTENT OR INFORMATION, FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR INFORMATION, IN EACH CASE POSTED, EMAILED, STORED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (F) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS SECTION E.9, THE DISCLAIMING ENTITIES’ CUMULATIVE LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES AND IN ALL EVENTS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID BY YOU TO STUDIOPAY DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION E.9 APPLIES REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF STUDIOPAY OR OUR TPSPS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE PROVISIONS OF THIS SECTION E.9 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
10. Disputes; Choice of Law; Jurisdiction and Venue
You agree that all matters including any action, dispute, or claim arising out of or relating to these Payment Terms or the Services shall be resolved in accordance with this Section E.10.
These Payment Terms are governed by the internal laws of the State of Texas (without regard to its choice of law provisions). The exclusive venue for any actions, disputes, or claims arising under or related to these Payment Terms shall be in the appropriate state or federal court located in Travis County, Texas. You hereby waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. Notwithstanding the foregoing, these Payment Terms do not limit any rights that we may have under trade secret, copyright, patent, or other laws.
ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THESE PAYMENT TERMS.
11. Limitation on Time to File Actions, Disputes, and Claims
ANY CAUSE OF ACTION, DISPUTE, OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE PAYMENT TERMS OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION, DISPUTE, OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION, DISPUTE, OR CLAIM IS PERMANENTLY BARRED.
12. Waiver and Severability
No waiver of by StudioPay of any term or condition set forth in these Payment Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition and any failure of StudioPay to assert a right or provision under these Payment Terms shall not constitute a waiver of such right or provision.
If any provision of these Payment Terms (or portion thereof) is held to be invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
13. Right to Amend
We have the right to change or add to the terms of these Payment Terms at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, StudioPay fees or charges, or software with or without notice that we in our sole discretion deem to be reasonable in the circumstances, such as on our website or any other website maintained or owned by us. Any use of the Services or software after our publication of any such changes shall constitute your acceptance of these Payment Terms as modified.
14. Assignment
These Payment Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without consent or other restriction.
15. Change of Business
You agree to give us at least thirty (30) days prior notification of your intent to change your current product or service types, your trade name, or the manner or types of payments you accept. You agree to provide us with prompt notification if you are the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. You also agree to promptly notify us of any adverse change in your financial condition, any planned or anticipated liquidation or substantial change in the basic nature of your business, any transfer or sale of twenty-five percent (25%) or more of your total assets or any change in the control or ownership of you or your parent entity. You will also notify us of any judgment, writ or warrant of attachment or execution, or levy against twenty-five percent (25%) or more of your total assets not later than three (3) days after you obtain knowledge of it.
16. Parties
These Payment Terms bind you and your respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or any permitted assigns.
17. No Third-Party Beneficiaries
No provision in these Payment Terms, and any applicable Additional Terms is intended or shall create any rights with respect to the subject matter of these Payment Terms, and any applicable Additional Terms, in any third party.
18. Third-Party Services and Links to Other Web Sites
You may be offered services, products, and promotions provided by or be presented links to websites operated by third parties, including those offered by our TPSPs (collectively, “Third-Party Services”) that utilize, integrate, or provide services related to the Services. If you decide to use these Third-Party Services, you will be responsible for reviewing and understanding the terms and conditions associated with these Third-Party Services. You agree that we are not responsible for the performance of Third-Party Services. Additionally, our website may contain links to Third-Party Services as a convenience to you. The inclusion of any links to Third-Party Services does not imply an approval, endorsement, or recommendation by us. Access and use of any Third-Party Service is done at your own risk. You understand that the Third-Party Service is not governed by the terms and conditions contained in these Payment Terms. We expressly disclaim all responsibility and liability for Third-Party Services. Please remember that when you use a link to go from our website to a Third-Party Service, our Privacy Policy is no longer in effect. Your browsing and interaction with a Third-Party Service, including those that have a link on our website, is subject to that Third-Party Service’s own terms and policies.
19. California Businesses
If you are a “Business” as defined by the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq., (“CCPA”) then this Section E.19 applies to you. For purposes of this Section E.19,“process”, “sell”, and “business purpose(s)” have the meaning ascribed to them by the CCPA.
For purposes of this Section E.19, “Sub-Merchant Customer Personal Information” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household that is processed by StudioPay in connection with the Services to you. Sub-Merchant Customer Personal Information does not include information StudioPay receives about your customers (“Sub-Merchant Customers”) for purposes of StudioPay’s digital receipt, customer directory, and email marketing tools (“StudioPay Sub-Merchant Customer Features”). It does include information that your Sub-Merchant Customers have provided to you through StudioPay invoices or to receive promotional text messages. For details about our privacy practices with respect to StudioPay Sub-Merchant Customer Features, please refer to our Sub-Merchant Customer Features Privacy Notice.
We may receive personal information from Sub-Merchant Customers for the purpose of performing the Services on your behalf as described in these Payment Terms. We agree that we will process Sub-Merchant Customer Personal Information collected, processed, stored or transmitted by, or accessible to us in the course of providing the Services under these Payment Terms and/or the Website Terms linked above, only on your behalf, and for the purpose of providing you with the Services described in these Payment Terms and/or the Website Terms linked above based on the products you use. We acknowledge that we are prohibited from: (i) selling the Sub-Merchant Customer Personal Information; and (ii) retaining, using, or disclosing the Sub-Merchant Customer Personal Information for any purpose other than providing to you the Services specified in these Payment Terms and/or the Website Terms linked above. As part of, and for purposes of, facilitating the Services, StudioPay may: (1) de-identify or aggregate the Sub-Merchant Customer Personal Information; (2) process the Sub-Merchant Customer Personal Information for operational purposes, including, without limitation (A) verifying or maintaining the quality and safety of the Services, (B) improving, updating or enhancing the Services either for you or for our customers generally, (C) detecting and preventing fraud, and (D) for protecting the security and integrity of our Services; and (3) complying with our legal obligations. You acknowledge and agree that Sub-Merchant Customer Personal Information that you disclose to StudioPay is provided to StudioPay for the parties’ business purposes.
We reserve the right to delete personal information stored pursuant to these Payment Terms in the ordinary course of business, pursuant to our retention schedules.
20. Force Majeure
No party will be liable for delays in processing or other nonperformance caused by such events as: fires; telecommunications failures; utility failures; power failures; equipment failures; labor strife; riots; war; terrorist attack; nonperformance of our TPSPs, vendors or suppliers; pandemics, government action; acts of God; or other causes over which the respective party has no reasonable control, except that nothing in this Section will affect or excuse your liabilities and obligations under Sections C.9 or D.12, including, without limitation, for Reversals, Chargebacks, claims, fines, Fees, refunds, returns, or unfulfilled products and services.
21. Responding to Legal Process
StudioPay may respond to and comply with any writ of attachment, lien, levy, subpoena, warrant, regulatory request, regulatory order or other legal order (“Legal Process”) that we believe to be valid. We may deliver or hold any funds or, subject to the terms of our Privacy Policy, any information as required under such Legal Process, even if you are receiving funds on behalf of third parties. Where permitted, we will use reasonable efforts to provide you notice of such Legal Process by sending a copy to the email address we have on file for you. StudioPay is not responsible for any losses, whether direct or indirect, that you may incur as a result of our complying with Legal Process.
22. Entire Agreement
These Payment Terms and all policies and procedures that are incorporated herein by reference constitute the entire agreement between you, StudioPay, and our TPSPs with respect to the provision of the Services. In the event of a conflict between these Payment Terms and any other StudioPay agreement or policy relating to the subject matter herein, these Payment Terms shall prevail. Except as expressly provided herein, these terms and conditions describe the entire liability of StudioPay, our TPSPs, and our vendors and suppliers, set forth your exclusive remedies with respect to the Services, and define your access to or use of the Services.
23. Survival
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of these Payment Terms, the following Sections of these Payment Terms shall survive and remain in effect in accordance with their terms upon the termination of these Payment Terms: Sections A.3 (“Authorization for Handling of Funds”), A:6 (“StudioPay Fees”),. A.8 (“Taxes”), A.9 (“Your Data Security Obligations”), A.10 (“StudioPay Data Security and Fraud Controls”), A.14 (“Privacy of Others”), C.4 (“Reconciliations and Errors”), C.5 (“Refunds and Returns”), C.6 (“Chargebacks”), C:8 (“Excessive Chargebacks”), C:11 (“Our Collection Rights”), C:13 (“Security Interest”), D.15 (“Additional Limitation of Liability”); D.16 (“Additional Indemnity”); E.2 (“Ownership – StudioPay Services and Intellectual Property”), E.5 (“Effects of Termination”), E.6 (“Your Liability”), E.8 (“No Warranties”), E.9 (“Limitation of Liability and Damages”), E.10 (“Disputes; Choice of Law; Jurisdiction and Venue”), E.11 (“Limitation on Time to File Actions, Disputes, and Claims”), E.12 (“Waiver and Severability”), E.16 (“Parties”), E.21 (“Responding to Legal Process”), E.22 (“Entire Agreement”), E.23 (“Survival”), E.25 (“Stripe-Specific Disclosures and Requirements”), and E.26 (“FNBO-Specific Disclosures and Requirements”).
24. Headings
Headings are included for convenience only and shall not be considered in interpreting these Payment Terms.
25. Stripe-Specific Disclosures and Requirements
In order to comply with regulatory requirements and Network Rules, and as a condition of accessing the Card Network services provided by Stripe, Inc. (“Stripe”), to the extent necessary in connection with these Payment Terms, Stripe may require each Sub-Merchant to: (a) assent to the Stripe Services Agreement, attached hereto as Attachment A – STRIPE Services Agreement; and (b) participate in the Stripe Sub-Merchant Onboarding Process, as such Process may apply to you and your use of the StudioPay services, which requires Sub-Merchant to provide Stripe with information necessary to allow Stripe to perform KYC and AML verification and due diligence on such Sub-Merchant.
26. FNBO-Specific Disclosures and Requirements
Notice with Respect to Non-Consumer ACH Wholesale Credit Transactions and UCC Article 4A
Your Entries may be transmitted through the ACH. The rights and obligations of the Originator with respect to such payments shall be construed in accordance with and governed by the laws of the State of Nebraska, unless it has been otherwise agreed that the law of some other state shall govern. Credit given by an RDFI with respect to an ACH Credit Entry is provisional until the RDFI receives final settlement for such entry through a Federal Reserve Bank or as otherwise provided for under UCC Article 4A. If a RDFI does not receive such final settlement or payment, you are hereby notified and agree that the RDFI is entitled to a refund from the Receiver the amount of the credit to the Receiver’s account, and the party making payment via such entry (i.e. the originator of the entry) shall not be deemed to have paid the amount of such entry.
In order to comply with regulatory requirements, NACHA Rule, and Network Rules, and as a condition of accessing the ACH services provided by First National Bank of Omaha (“FNBO”), to the extent necessary in connection with these Payment Terms, FNBO may require each Sub-Merchant to enter into a Third-Party Sender Customer/Originator Acknowledgment with FNBO for ACH and Card Network services, attached hereto as Attachment B – FNBO Third-Party Sender Customer/Originator Acknowledgment.
ATTACHMENT A – STRIPE SERVICES AGREEMENT https://stripe.com/legal/ssa
ATTACHMENT B – FNBO THIRD-PARTY SENDER CUSTOMER/ORIGINATOR ACKNOWLEDGMENT
THIRD-PARTY SENDER CUSTOMER/ORIGINATOR ACKNOWLEDGMENT
The undersigned “Customer” company (referred to herein as “you” or “your”) confirms and agrees that it has authorized StudioPay (“TPS”) to act as your agent in processing ACH Entries for you, and that TPS will establish one or more clearing accounts with, and submit ACH Entries on behalf of you to First National Bank of Omaha as an originating depository financial institution (“ODFI”).
You: (i) assumes the responsibilities of and makes the warranties of an Originator under the Operating Rules of the National Automated Clearing House Association (the “Rules”) and agrees to reimburse ODFI for returns, reversals, adjustments, reclamations, and warranty claims and responsibilities related to Company’s ACH Entries; (ii) agrees to comply with the Rules, including but not limited to the requirements of Article Two (Rights and Responsibilities of ODFIs, Their Originators and Third-Party Senders), Rule 2.15 (Obligations of Third-Party Senders, and of ODFIs and Originators that Use Third-Party Senders), and if international ACH Entries are initiated by you, the Rules applicable to IAT ACH Entries, (iii) agrees to comply with all applicable state and federal laws, rules and regulations, including but not limited to sanction laws administered by the Office of Foreign Assets Control (“OFAC”), the Electronic Funds Transfer Act, the Unlawful Internet Gambling Enforcement Act, the Federal Reserve Board and the Consumer Financial Protection Bureau’s Regulation E (the foregoing and the ACH Rules are, collectively, the “Applicable Rules”); and (iv) acknowledges that ACH Entries may not be initiated that violate the laws of the United States, including but not limited to the sanctions laws, regulations, and orders administered by OFAC, laws, regulations, rules, and orders administered by the Financial Crimes Enforcement Network (“FinCEN”) (as such terms are defined below), and any state laws, regulations, or orders applicable to the providers of ACH payment services.
You represent and warrant as to each ACH Entry that it has obtained the necessary authorizations under the Rules and Applicable Rules and that you shall not initiate any funds transfer after the authorization for the same ACH Entry has been revoked (or the agreement between you and TPS has been terminated). With respect to each IAT Entry TPS sends to ODFI on behalf of you, you represent and warrant to ODFI that such IAT Entry is in compliance with United States law, including, but not limited to, rules promulgated and programs administered by OFAC and FinCEN, that no such IAT Entry violates United States law, including, but not limited to, rules promulgated and programs administered by OFAC and FinCEN, that neither TPS nor you are acting on behalf of or transmitting funds to any party subject to OFAC sanctions and that such IAT Entry complies with the laws and payment system rules of the receiving country. You acknowledge that ODFI and other parties must comply with the Rules and United States law for IAT Entries. The performance by each of these parties, including ODFI, of obligations with respect to IAT Entries may cause delays in processing, settlement, and/or availability of IAT Entries. You waive and release ODFI from any liability or obligation, including, but not limited to, funds availability obligations, caused by or arising out of any such delay associated with IAT Entries.
You understand that ODFI has the right to: (i) review, monitor, and audit Company’s ACH transactions, processes, and procedures for compliance with this Agreement and the Rules; (ii) restrict or limit the amount or type of ACH Entries processed for you; and (iii) suspend, discontinue, or terminate ACH processing based on its assessment of the risk posed to the ODFI and/or the breach or termination of its agreement with TPS.
You are responsible for the results of using a TPS, the services, and for the accuracy and adequacy of the data you or TPS provides. You authorize ODFI to act on any instruction which has been or reasonably appears to have been sent by TPS or you, including but not limited to funds transfer instructions. ODFI is not obliged to take any further steps to confirm or authenticate such instructions and will act on them without getting further confirmation. You understand that if it or the TPS provides ODFI with incorrect information or if there is any error in the instruction it accepts full responsibility for losses resulting from any of the errors, duplication, ambiguities, or fraud in the information that was provided to ODFI. ODFI is not responsible to third parties (such as, but not limited to, third party service providers and the third parties to whom wire or ACH debit or credits are transmitted hereunder) and you shall defend, indemnify, and hold ODFI harmless from, the actions or omissions of TPS, or any claim made against ODFI arising out of your use of the services, breach of this Agreement, or breach of any warranty under the Rules. IN NO EVENT WILL ODFI BE LIABLE OR RESPONSIBLE FOR, AND TPS AND YOU BEAR ALL RISK ASSOCIATED WITH, FOREIGN EXCHANGE CONVERSION AND ANY GAINS AND LOSSES RESULTING FROM THE CONVERSION OF CURRENCIES IN CONNECTION WITH ANY ENTRY.
This Attachment shall survive the termination of the agreement between TPS and ODFI regarding those Customer Entries made prior to termination. Notwithstanding anything to the contrary elsewhere in the Agreement between TPS and you, ODFI shall be considered an intended beneficiary of this Acknowledgment and is entitled to enforce its terms. This Acknowledgment is agreed to in consideration of ODFI’s agreement to serve as ODFI. You waive notice of the ODFI’s acceptance of this Acknowledgment.
Notice with Respect to Non-Consumer ACH Wholesale Credit Transactions and UCC Article 4A
(1) Your Entries may be transmitted through the Automated Clearing House; (2) The rights and obligations of the Originator with respect to such payments shall be construed in accordance with and governed by the laws of the State of Nebraska, unless it has been otherwise agreed that the law of some other state shall govern; (3) Credit given by a Receiving Depository Financial Institution (RDFI) with respect to an Automated Clearing House (ACH) credit entry is provisional until the RDFI receives final settlement for such entry through a Federal Reserve Bank or as otherwise provided for under Article 4A; and (4) If a RDFI does not receive such final settlement or payment, you are hereby notified and agree that the RDFI is entitled to a refund from the Receiver the amount of the credit to the Receiver’s account, and the party making payment via such entry (i.e. the originator of the entry)shall not be deemed to have paid the amount of such entry.
December 12, 2024