YUANSFER MASTER MERCHANT AGREEMENT
THIS YUANSFER MERCHANT AGREEMENT (this “Agreement”), effective as of today (the “Effective Date”), is by and between Yuansfer, Inc. (“Yuansfer” , “us”, “we” or “our”) and the Merchant (“Merchant”, “you” or “your”). Yuansfer and Merchant may be referred to herein collectively as the “Parties” or individually as a “Party.” Capitalized terms used in this Agreement have the meanings setforth on Appendix A or as defined in the body of this Agreement.
WHEREAS, Yuansfer has developed the Yuansfer Platform which enables merchants to accept certain online payment services and other payment methods that are frequently used by consumers;
WHEREAS, Merchant is a vendor of products and services and wishes to access and use the Yuansfer Platform and Yuansfer’s services as set forth in Merchant Application Form, subject to the terms and conditions of this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1.MERCHANT APPLICATION FORM
(a)The Services to be made available to Merchant under this Agreement will be as set forth in the Merchant Application Form that reference this Agreement and are signed by the Parties. The Merchant Application Form will set forth: (a) the payment methods that are included in the Services (the “Payment Methods”); (b) the fees that Merchant will pay Yuansfer for the Services; (c) any other mutuallyagreed terms that are specific to such Merchant Application Form. Each Merchant Application Form is deemed incorporated into, and made a part of, this Agreement. To the extent any provision set forth in the Merchant Application Form conflicts with any provision set forth elsewhere in this Agreement, the provision set forth elsewhere in this Agreement will control, unless the Merchant Application Form expressly provides that such provision is being superseded for the purposes of such Merchant Application Form. The Merchant Application agreed to by the Parties is attached to this Agreement.
(a)Services. As long as Yuansfer or the Merchant has not terminated the Agreement, Yuansfer will provide Merchant with the Services that are the subject of such Merchant Application Form subject to the terms and conditions of this Agreement. Subscription Term is deemed
(b)Use Restrictions. Merchant will not and will not permit any third party to (and will ensure that the Authorized Users do not) at any time directly or indirectly: (i) allow anyone other than Authorized Users to access and use the Yuansfer Platform, or any Documentation; (ii) use the Services in any manner beyond the scope of rights expressly granted in this Agreement; (iii) modify, copy or create derivative works of the Services or Documentation, in whole or in part; (iv) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (v) frame, mirror, sell, resell, rent or lease use of the Services to any party, or otherwise allow any third party to use the Services for any purpose other than for the benefit of Merchant in accordance with this Agreement; (vi) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other proprietary right of any third party, or that violates any Applicable Law; (vii) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (viii) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided by Yuansfer for use expressly for such purposes; (ix) use the Yuansfer Platform or Services for any illegal purpose or to introduce, post, or upload to Yuansfer Platform any Prohibited Content or Harmful Code; or (x) use the Services, Documentation or any other Yuansfer Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services.
(c)Third-Party Services. Certain features and functionalities within the Services may allow Merchant and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Services. Yuansfer does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Merchant is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Merchant to use the Third-Party Services in connection with the Services.
(d)Yuansfer IP and Reservation of Rights. All right, title, and interest in and to (i) the Yuansfer Platform and Services, (ii) the Aggregate Data, (iii) all modifications, improvements, adaptations, enhancements, or translations made to any of the foregoing, and (iv) Yuansfer IP and all proprietary rights therein, will be and remain the sole and exclusive property of Yuansfer and our licensors. Merchant agrees that the only rights it has with respect to the Yuansfer Platform are the limited access and use rights expressly granted in this Agreement. No rights are granted to Merchant hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth in this Agreement.
(e)Feedback. From time-to-time Merchant or its employees, contractors, or representatives may provide Yuansfer with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). Merchant hereby grants Yuansfer a perpetual, irrevocable, royalty-free and fully-paid up, transferable, sublicensable license to use and exploit all Feedback in connection with Yuansfer’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services.
3. MERCHANT OBLIGATIONS
(a)Merchant Obligations Generally. Merchant: (i) covenants and agrees it shall only accept payments through the Services for bona fide sales of goods and services; (ii) hereby authorizes Yuansfer to request identity-verifying information about Merchant including a consumer report that contains Merchant’s name and address and authorizes Yuansfer to periodically obtain additional reports; (iii) hereby authorizes and permits Yuansfer to share information about Merchant and Merchant’s application (including whether Merchant is approved or declined) with Merchant’s bank or other financial institution, and governmental regulatory authority and (iv) shall provide additional information as Yuansfer may reasonably request for the purposes of meeting onboarding, periodic review requirements, Yuansfer’s internal audit, as well as government or regulatory entity requests.
(b)Submerchants. If you wish to permit third party merchants to use the Services in connection with transactions conducted, you will notify Yuansfer of the identity of such third party merchant and provide Yuansfer with all information as is reasonably requested by Yuansfer regarding such third party merchant, which Yuansfer may then submit to the applicable Payment Companies for review and approval or rejection. You will not permit any such third party merchant to use the Services or otherwise provide any third party merchant with the benefit of the Services unless and until Yuansfer notifies you in writing that such third party merchant has been approved by Yuansfer and the applicable Payment Companies to use the Services. Any such approved third party merchant is referred to in this Agreement as an “Approved Submerchant.” Yuansfer may revoke its approval of a third party merchant as an Approved Submerchant at any time upon written notice to Merchant.
- (i)Prior to permitting an Approved Submerchant to use the Services, you shall obtain from such Approved Submerchant (and shall provide to Yuansfer upon request), the Approved Submerchant’s written agreement to (A) not use the Services for any Prohibited Business or in any other manner not authorized under this Agreement and (B) release Yuansfer and all Payment Companies from any and all claims and liabilities that may arise from the Approved Submerchant’s use of the Services.
- (ii)In connection with any Approved Submerchant’s use of the Services, you shall be responsible for Approved Submerchant’s compliance with all of the restrictions and obligations set forth in this Agreement that apply to your use of the Services. For any Transaction involving an Approved Submerchant, funds received by us relating to such Transaction shall be remitted to you in accordance with Section 8 and you shall be responsible for (A) timely remitting such funds to the Approved Submerchant (minus any amounts that the Approved Submerchant has authorized you to retain), in accordance with your agreement with the Approved Submerchant and (B) paying any fees or charges owed to Yuansfer with respect to such Transasction, as well as any chargebacks, refunds or reversals with respect to such Transaction (in each case, without limiting your right to seek payment of such fees, charges, chargebacks, refunds or reversals from the Approved Submerchant).
4. YUANSFER OBLIGATIONS
a)Yuansfer shall be responsible for all costs associated with meeting Merchant’s acceptance criteria for the Services set forth in the applicable Order (if no acceptance criteria are defined, generally applicable industry standards shall apply). Merchant may reject the Services as integrated and configured in POS systems, during the acceptance period specified in the Order (if no acceptance period is specified, Merchant shall have no less than ten (10) business days to accept or reject such Services) for lack of material conformity to the acceptance criteria, and in such case, Yuansfer and Merchant shall agree upon a reasonable timeframe for Yuansfer to remedy the deficiencies identified by the Merchant. Acceptance of revised Services shall be in accordance with this Section 4 (a) and Section 16 (b). In the event the revised Services again fail to materially conform to the acceptance criteria, Merchant, in its sole discretion, may: (i) agree to allow Yuansfer another opportunity to remedy any remaining deficiencies; (ii) terminate the Order and receive a full refund of all fees and expenses paid thereunder to Yuansfer relating to the Services(s), if any, and return any portion of the Services associated with such Order upon request from Yuansfer (and Yuansfer shall remove any such installed Products at Yuansfer’s sole cost and expense); or (iii) modify the Order (including, but not limited to, the Fees) to reflect any portion of the Services that Merchant is willing to accept.
b)No trial use or testing of the Services, incremental or final payment, or passage of title shall constitute acceptance or shall prejudice Merchant’s right to reject or revoke acceptance of all or any portion of the Services.
c)Yuansfer shall comply with all applicable domestic and international laws and regulations pertaining to data privacy, personal data, trans-border data flow and data protection (including, without limitation, the requirements of HIPAA and its implementing regulations) and the PCI Data Security Standards (the “Data Protection Requirements”), as applicable, and will implement, keep current and adhere to a set of practices and procedures sufficient to enable such compliance (“Data Protection Requirements”).
d)Non-Solicitation. During the term of this Agreement and for a period ending one (1) year after termination for any reason (and the simultaneous termination of this Agreement), neither Parties, nor any entity controlled, directly or indirectly, by the Parties shall, directly or indirectly solicit any employees, , or agents of the Merchant to leave the service of either Parties.
Merchant shall not (and shall ensure that each of its Affiliates does not) enter into an agreement with, or obtain services from, any third party that would allow Merchant or any of its Affiliates to accept payments from the Payment Methods set forth in such Merchant Application Form in all jurisdictions that Yuansfer provides the Payment Methods in. Nothing contained in this Agreement shall prohibit Yuansfer from offering its services to any third party or using such services or the Yuansfer IP in the ordinary course of its business, subject to Applicable Laws.
6. FEES AND PAYMENT
(a)Fees. In consideration for the Services, Merchant shall be responsible for paying Yuansfer the non-refundable fees set forth in the Merchant Application Form in accordance with the terms therein (“Fees”) without offset of deduction. Yuansfer will deduct its Fees before paying the Merchant. Yuansfer reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Subscription Term or any renewal thereof, upon sixty (60) days’ prior notice to Merchant (which may be sent by email).
(b)Payments. Except as otherwise provided in an Merchant Application Form, payments due to Yuansfer under this Agreement shall be automatically deducted in the calculation of Settlement Funds remitted to Merchant. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If at the time of any calculation of Settlement Funds during the Subscription Term, settlement amounts from Transactions during such period are insufficient to cover Fees owed for such Transactions, Yuansfer shall deduct such Fees from each subsequent calculation of Settlement Funds until such Fees are paid in full and in any event, Merchant shall remain liable for such payments until the all Fees have been paid in full. In the event Yuansfer is not able to receive its payment when due via deduction as set forth above, outstanding amounts owed shall be subject to late charges which shall accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Yuansfer may suspend Services until all payments are made in full. Merchant will reimburse Yuansfer for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
(c)Taxes. Merchant is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Merchant to Yuansfer hereunder, other than any taxes imposed on Yuansfer’s income. Without limiting the foregoing, in the event that Merchant is required to deduct or withhold any taxes from the amounts payable to Yuansfer hereunder, Merchant will pay an additional amount, so that Yuansfer receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
(d)Refunds. If a Merchant makes a Refund to the Consumer prior to Merchant receiving the Settlement Funds for the Transaction to which the Refund relates, then such Transaction will be deemed cancelled, and Yuansfer will not be required to pay any Settlement Funds to Merchant for such Transaction. If a Merchant makes a Refund to the Consumer following Merchant’s receipt of the Settlement Funds relating to the Transaction to which such Refunds relate, Yuansfer shall pay such Refund to the Consumer on behalf of Merchant (provided that Yuansfer, in its discretion, may require Merchant to pay such amount to Yuansfer prior to Yuansfer initiating the Refund to the Consumer).
(e)Disputed Payments. All disputes relating to the accuracy or applicability of a charge or credit or other claim under the Agreement will be resolved pursuant to the Agreement’s dispute resolution process. Yuansfer may withhold any amounts disputed within good faith and shall pay all undisputed amounts on the invoice pending resolution of the dispute. Unpaid or uncredited amounts withheld in dispute will not be considered the basis for a monetary default.
7. CONFIDENTIAL INFORMATION
(a)The Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and the Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Yuansfer may use and modify Confidential Information of Merchant in de-identified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
(b)Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
(c) If Confidential Information is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority, the Receiving Party shall (a) give Disclosing Party, to the extent possible, prompt and reasonable advance notice prior to disclosure so the Disclosing Party may contest the disclosure or seek a protective order, and (b) limit the disclosure to the minimum amount that is legally required to be disclosed.
(d)The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
8. SUPPORT AND HOSTING
(a)During the applicable Subscription Term, Yuansfer will provide Merchant with reasaonable technical support with respect to its use of the Services, in accordance with Yuansfer’s current support policies. Merchant acknowledges and agrees that its use of the Services is subject to its compliance with any software and other technical requirements as may be specified by Yuansfer from time to time.
(b)During the applicable Subscription Term, Yuansfer will be responsible for hosting the Yuansfer Platform, and will use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond our reasonable control. We will notify you of any outage of the Yuansfer Platform and will use commercially reasonable efforts to promptly remediate such outage.
9. AGENT AUTHORIZATION
(a)In connection with the Services, Merchant hereby authorizes Yuansfer, and Yuansfer hereby agrees to act, as Merchant’s agent for the purposes of holding, receiving and transmitting funds to Merchant on Merchant’s behalf (including, but not limited to, any funds payable to Merchant for the account of an Approved Submerchant). Each of Yuansfer and Merchant hereby agrees to and acknowledges the following:
- (i)Yuansfer is subject to the control of Merchant. Yuansfer shall comply in all respects with instructions originated by Merchant. Yuansfer takes complete financial responsibility for the transmission of funds from the moment a Transaction is initiated until Merchant receives the Settlement Funds.
- (ii)There will be no risk of loss to the Consumer initiating the Transaction if Yuansfer fails to remit the Settlement Funds to Merchant.
- (iii)Receipt of Settlement Funds by Yuansfer will be deemed receipt of Settlement Funds by Merchant. The Consumer’s payment to Yuansfer satisfies the Consumer’s obligation to Merchant. Merchant will provide the purchased products or services upon Yuansfer’s receipt of payment from Consumer.
- (iv)Yuansfer will not provide “money transmission” services or equivalent activity (as defined under Applicable Law) outside the scope of activity permitted under this Agreement, except to the extent that Yuansfer is licensed to do so or is operating as an agent for a third party.
- (v)Yuansfer acts as Merchant’s agent for the purposes of holding, receiving and transmitting funds to Merchant on Merchant’s behalf.
- (vi)Consumers doing business with Yuansfer are aware that Yuansfer is acting on behalf of Merchant.
10. PAYMENT COMPANIES
As of the effective date of an applicable Merchant Application Form, Yuansfer will have executed all agreements with the applicable Payment Companies with respect to the Payment Methods provided under such Merchant Application Form. If Yuansfer learns that a Payment Method may no longer be made available under this Agreement, Yuansfer will promptly advise Merchant that such Payment Method may not be used by Merchant to accept payments (and such Payment Method will no longer be made available to Merchant through the Service). If such discontinued Payment Method is the only Payment Method that was made available under the Merchant Application Form, Yuansfer will use commercially reasonable efforts to identify a replacement payment method and, if such replacement payment method is acceptable to Merchant, the Parties will enter into an amendment to the Merchant Application Form with respect to such replacement payment method. Merchant acknowledges and agrees Yuansfer shall have no liability or responsibility for the unavailability of any Payment Method or Merchant’s inability to use the Service due to a Payment Method’s unavailability.
11. MERCHANT MATERIALS AND DATA
(a)Yuansfer acknowledges that, as between Merchant and Yuansfer and except as set forth in Section 11(b), Merchant owns and retains all right, title and interest in and to all Merchant Materials.
(b)Merchant hereby grants Yuansfer a non-exclusive, worldwide, royalty-free, transferable (solely to the extent permitted under Section 19(f)), sublicensable (to Yuansfer’s third party service providers) right and license to use, host, reproduce, display, perform, modify the Merchant Materials solely for the purpose of hosting, operating and providing the Services.
(c)We may create Aggregate Data in order to gain useful statistical analysis, industry intelligence and benchmark industry trends. Aggregate Data does not identify Merchant or any individual. You hereby agree that we have the irrevocable right to collect, reproduce, execute, use, store, archive, modify, enhance, perform, display, distribute, sell, rent, vend, license, or otherwise exploit Aggregate Data for any lawful purpose at all times during and after the term of this Agreement; provided, however, that such usage does not identify you, your Authorized Users, or any natural person.
(e)The Parties will use commercially reasonable efforts and take no less than industry standard precautions to store, collect, transmit, handle and receive all data received from the other Party in connection with this Agreement, and will cooperate with one another in good faith with respect to any issue, inquiry or incident involving the security of such data to the extent necessary to comply with Applicable Laws including, without limitation, all applicable data protection and privacy laws.
12. REPRESENTATIONS, WARRANTIES AND COVENANTS
(a)Mutual. Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
(c)By Yuansfer. Yuansfer represents and warrants the following: (i) the encryption used in the Services is proprietary to Yuansfer and not dependent on any third party; (ii) the execution and performance of this Agreement will not result in a violation or breach of any agreement or other instrument under which, Yuansfer is bound or to which any of the assets of Yuansfer are subject; (iii) the Services are in compliance with Applicable Law or regulation or any judgement or order of any court or governmental agency; and (iv) no authorization, consent, approval, permit, or filing of or with any governmental or public body or authority, any lender or lessor, or any other third party, including any Payment Method, is required to authorize, or is required in connection with, the execution, delivery, and performance of this Agreement by Yuansfer. Yuansfer also warrants and represents that the Services will perform in accordance with the specifications set forth in the applicable Order or applicable documentation. Yuansfer will use commercially reasonable efforts to promptly correct any reported errors.
(a)Indemnification by Yuansfer. Subject to Section 14(b), Yuansfer will indemnify, defend and hold Merchant and its Representatives (collectively, the “Merchant Indemnitees”) harmless from and against any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) incurred by any of the Merchant Indemnitees in connection with any demand, action, claim, or proceeding by a thirdparty (each, a “Claim”) alleging that the use of the Services in accordance with this Agreement, infringes or misappropriates any United States patents, copyrights, or trade secrets.
(b)Exclusions. Yuansfer’s obligations under Section 14(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Merchant’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Merchant Materials; (iii) Merchant’s failure to use any enhancements, modifications, or updates to the Services that have been provided by Yuansfer; (iv) modifications to the Services by anyone other than Yuansfer; or (v) combinations of the Services with software, data or materials not provided by Yuansfer.
(c)IP Remedies. If Yuansfer reasonably believes the Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Yuansfer may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Merchant to continue use the Services. If Yuansfer determines that neither alternative is commercially practicable, Yuansfer may terminate this Agreement and/or the applicable Merchant Application Form, in its entirety or with respect to the affected component, by providing written notice to Merchant. The rights and remedies set forth in this Section 14 will constitute Merchant’s sole and exclusive remedy for any infringement or misappropriation of intellectual property rights in connection with the Services.
(d)Indemnification by Merchant. Subject to Section 14(e), Merchant will indemnify, defend and hold Yuansfer and its Representatives (collectively, the “Yuansfer Indemnitees”) harmless from and against all Losses in connection with any Claim: (i) arising from any Merchant Materials, including, without limitation (A) any Claim that the Merchant Materials infringes, misappropriates or otherwise violates any third party’s intellectual property rights or privacy or other rights and (B) any Claim that the use, provision, transmission, display or storage of Merchant Materials violates any Applicable Law, rule or regulation; (ii) arising from or relating to any products or services of Merchant or any Approved Submerchant; (iii) arising from or relating to the use of the Services by Merchant, or any Authorized User in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the restrictions in Section 2(b); and (iv) asserted by any Approved Submerchant or any Consumer.
(e)Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided; however, that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
14. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, THE YUANSFER PLATFORM AND ITS COMPONENTS, AND ANY DOCUMENTATION, ARE PROVIDED ON AN “AS IS” BASIS, AND YUANSFER MAKES NO WARRANTIES OR REPRESENTATIONS TO MERCHANT, ITS AUTHORIZED USERS, APPROVED SUBMERCHANTS OR TO ANY OTHER PARTY REGARDING ANY OF THE FOREGOING. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YUANSFER HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, YUANSFER HEREBY DISCLAIMS ANY WARRANTY THAT THE YUANSFER PLATFORM OR THE SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED. TO THE EXTENT YUANSFER MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
15. LIMITATIONS OF LIABILITY
(a)Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) GROSS NEGLIGENCE, FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, (III) EITHER PARTY’S INDEMNITY AND DEFENSE OBLIGATIONS UNDER SECTION 14 OR (IV) MERCHANT’S BREACH OF ITS PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE YUANSFER PLATFORM OR THE PROVISION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(b)Total Liability. IN NO EVENT WILL YUANSFER’S MAXIMUM, CUMULATIVE LIABILITY TO MERCHANT AND THE AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE YUANSFER PLATFORM OR THE PROVISION OF THE SERVICES EXCEED THE FEES ACTUALLY PAID BY MERCHANT TO YUANSFER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE FIRST CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT YUANSFER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EXCEPT FOR MERCHANT’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL MERCHANT’S AGGREGATE LIABILITY TO YUANSFER FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENTS, LIABILITIES, COSTS, EXPENSES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER) (COLLECTIVELY, “DAMAGES”), AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE FEES PAID BY MERCHANT TO YUANSFER UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO DAMAGES. THESE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES.
(c)Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 16 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN YUANSFER AND MERCHANT, AND WILL SURVIVE AND APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
16. TERM AND TERMINATION
(a)Term. The term of this Agreement begins on the Effective Date and will continue in effect thereafter at all times until terminated in accordance with Section 17(b). The Subscription Term will be set forth in the applicable Merchant Application Form.
(b)Either Party may terminate this Agreement on written notice to the other Party. In addition, either Party may terminate this Agreement and/or any Merchant Application Form, (i) upon thirty (30) days’ prior written notice to the other Party if the other Party commits a material breach of this Agreement, and the breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other Party (a) is unable to pay its debts as they mature or admits in writing its inability to pay its debts as they mature, (b) makes a general assignment for the benefit of creditors, (c) files a voluntary petition for bankruptcy or has filed against it an involuntary petition for bankruptcy, (d) applies for the appointment of a receiver or trustee for substantially all of its assets or permits the assignment of any such receiver or trustee who is not discharged within a period of thirty (30) days after such appointment, or (e) otherwise ceases to actively conduct its business. We may also terminate this Agreement upon written notice to you under the limited circumstances set forth in Section 12(c).
(c)Survival. Section 2(b) (“Use Restrictions”), Section 2(c) (“Third-Party Services”), Section 2(d) (“Yuansfer IP and Reservation of Rights”), Section 2(e) (“Feedback”), Section 3 (“Merchant Obligations”), Section 5 (“Fees and Payment”) (until you have paid all Fees and applicable taxes), Section 6 (“Confidential Information”), Section 14(“Indemnification”), Section 15 (“Warranty Disclaimer”), Section 16 (“Limitations of Liability”), this Section 17(c) (“Survival”), Section 17(d) (“Effect of Termination”) and Section 20 (“General”) shall survive the termination of this Agreement.
(d)Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2(a) will terminate; and (ii) Merchant will return or destroy, at Yuansfer’s sole option, all Yuansfer Confidential Information in its possession or control, including permanent removal of such Yuansfer Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Merchant’s possession or under Merchant’s control, and at Yuansfer’s request, certify in writing to Yuansfer that the Yuansfer Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Merchant’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Merchant to any refund.
Merchant hereby grants Yuansfer a limited, non-exclusive, royalty-free, transferable (solely to the extent permitted under Section 17(f)) license to use and display Merchant Marks during the Term in connection with (i) the hosting, operation and maintenance of the Services; and (ii) Yuansfer’s marketing and promotional efforts for its products and services, including by publicly naming Merchant as a customer of Yuansfer and in case studies. All goodwill and improved reputation generated by Yuansfer’s use of the Merchant Marks inures to the exclusive benefit of Merchant. Yuansfer will use the Merchant Marks in the form stipulated by Merchant and will conform to and observe such standards as Merchant prescribes from time to time in connection with the license granted hereunder (“Marketing Guidelines”). Yuansfer may in its sole discretion and subject to any Marketing Guidelines by Merchant at the execution of this Agreement, issue marketing material, press releases or other publicity regarding this Agreement or the contents hereof.
Merchant agrees that Yuansfer may include Merchant’s name and logo in Yuansfer’ published Merchant list. In addition, Merchant agrees to work with Yuansfer on a joint press release for distribution upon signature of this Agreement, a press release for distribution upon Merchant processing digital payments through Yuansfer’s platform, and a case study for distribution as soon as practicable and after Merchant has gone live and has been processing digital payments through the Platform, all subject to obtaining Merchant’s written consent as to content prior to any distribution by Yuansfer, and such consent not to be unreasonably withheld or delayed.
(a)Entire Agreement. This Agreement, including its exhibits and any Merchant Application Form, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
(b)Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth below or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 17(b). Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.
If to Yuansfer:
28 Liberty St, 6th Floor
New York, NY 10005
Attention: Ms. Xi Lin
(c)Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
(d)Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
(e)Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York County, New York and the Parties irrevocably consent to the personal jurisdiction of such courts and hereby irrevocably waive any objection to the laying of venue in such courts.
(f)Assignment. Neither Party may assign or transfer this Agreement, without the other Party’s prior written consent; provided, however, that notwithstanding the foregoing, either Party may assign or transfer this Agreement (i) to any of its Affiliates or (ii) to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by asset sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns. Any attempt to assign or transfer this Agreement in violation of this Section will be void.
(g)Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Merchant, Section 2(b), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(h)Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
(i)Subcontracting. Yuansfer may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Yuansfer remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g., AWS) or payment vendors (e.g., PayPal), Yuansfer will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Yuansfer.
(j)Export Regulation. Merchant will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Services or software, or any Merchant Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.
(k)U.S. Government End Users. The Services, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.
(l)Relationship of the Parties. The relationship between the Parties is that of independent contractors. Except as expressly provided in Section 8 of this Agreement, nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties, and neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
(m)No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any third party other than the Parties and their respective successors and assigns.
(n)Affiliates. Parties’s affiliates and the Indemnified Parties shall be third party beneficiaries for all purposes under this Agreement including any Merchant Application Form. All claims by the affiliates shall be made and brought by the Parties on behalf of the affiliates unless otherwise required by law.
(o)Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
(p)Captions and Headings. The captions and headings used in this Agreement are used for convenience only and are not to be given any legal effect.
APPENDIX A – DEFINITIONS
“ACH” means Automated Clearing House, a network that coordinates electronic payments.
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Aggregate Data” means any data that is derived or aggregated in de-identified form from (i) any Merchant Materials; or (ii) Merchant’s and/or an Authorized User’s use of the Services, including, without limitation, any usage data or trends with respect to the Services.
“Applicable Law” means all applicable laws, statutes, ordinances, rules, and regulations of any governmental authority in any jurisdiction in which Transactions may occur, as any of the foregoing may be amended and in effect from time to time, including without limitation: (i) the Bank Secrecy Act; (ii) the USA PATRIOT Act; (iii) trade and economic sanctions programs administered or enforced by the United States Department of Treasury’s Office of Foreign Assets Control; and (iv) statutes, rules, regulations and record-keeping requirements concerning anti-money laundering or money transmission.
“API” means Yuansfer’s application programming interface.
“Approved Submerchants” shall have the meaning set forth in Section 3(b).
“Authorized User” means: (i) your employees, contractors and agents (and, subject to approval as provided in the Agreement, Approved Submerchants) whom you authorize to access and use the Services; and (ii) any Consumer from which you accept payment through use of the Services; provided, however, that any contractors’ or agents’ access to and use of the Yuansfer Platform will be limited to their provision of services to you. You are responsible for the acts and omissions of any Authorized Users and any other person who accesses and uses the Yuansfer Platform using any Authorized User’s sign-in names, passwords or unique identifiers.
“Confidential Information” means: (i) with respect to Yuansfer, the Yuansfer Platform and any and all object code source code relating thereto; the Aggregate Data; the Documentation; and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, or data including, without limitation, methods, processes, procedures, systems, know-how, algorithms, applications, ideas, techniques, user interface design, technical data, models, applications, and other intellectual property related to the Services; (ii) with respect to you, the Merchant Materials and any other non-public information or material regarding your legal or business affairs, financing, properties, or data; and (iii) with respect to each Party, the terms and conditions of this Agreement and all Merchant Application Forms, in all cases, whether disclosed orally or in tangible or electronic form.,all information communicated by the Disclosing Party (as defined below) that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure; (ii) all information identified as confidential to which Receiving Party has access in connection with a Merchant Application Form, whether before or after the Effective Date; and (iii) (a) all trade secrets, (b) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto, and (c) information relating to business plans, sales or marketing methods, lists or requirements. Notwithstanding any other provisions of this Agreement, Confidential Information also includes any and all information provided by Merchant to Yuansfer prior to the Effective Date (and/or the effective date of any Order) relating to the subject matter of this Agreement and all Orders. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
“Consumer” means a customer of Merchant or an Approved Submerchant who makes a payment that is accepted through use of the Services.
“Documentation” means any user guides, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Yuansfer to Merchant (including any revised versions thereof) relating to the Yuansfer Platform or the Services, which may be updated from time to time upon notice to Merchant.
“Fees” shall have the meaning set forth in Section 5.
“Harmful Code” means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would (i) cause the Yuansfer Platform to cease functioning; (ii) in any way damage or corrupt data, storage media, programs, equipment, or communications; or (iii) otherwise interfere with the operations of the Yuansfer Platform, including, without limitation, Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices.
“Merchant Marks” means the Merchant’s name, trade names, trademarks, service marks, trade dress, and logos.
“Merchant Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, transmitted or otherwise provided to Yuansfer by or on behalf of Merchant through the Services or to Yuansfer in connection with Merchant’s use of the Services, but excluding, for clarity, any other information, data, content or materials owned or controlled by Yuansfer and made available through or in connection with the Services.
“Merchant Portal” means merchant portal located at www.yuansfer.com or such other internet address as Yuansfer may provide to Merchant from time to time.
“Merchant’s Bank” means the bank where Merchant’s Bank Account is located.
“Merchant’s Bank Account” means Merchant’s bank account specified in Merchant Application Form or such other bank account that Merchant directs Yuansfer to deposit Settlement Funds into pursuant to a written notice given by Merchant to Yuansfer, and which is maintained primarily for commercial and not for personal, family, or household purposes.
“Offline Transaction” means (i) an in-store transaction with a QR Code, a Terminal or other point-of-sale device (including those integrated with Yuansfer’s technology); and (ii) a transaction using other offline means as the Parties may agree upon from time to time in writing.
“Online Transactions” means (i) a transaction on an E-commerce website or mobile application, including those accessible by a desktop browser, or mobile browsers, (ii) a transaction using the Yuansfer Platform, and (iii) a transaction using other online means as the Parties may agree upon from time to time in writing.
“Payment App” means a Payment Method’s software application for use on a Consumer’s portable device.
“Payment Merchant” means the third party provider of a Payment Method.
“Payment Method(s)” shall have the meaning set forth in the Merchant Application Form.
“Payment Network Rules” means the rules and operating guidelines of any payment network through which payments are transferred and processed, including the rules of the National Automated Clearing House Association for automated clearinghouse transfers.
“Prohibited Business” means any type of business for which Services may not be used, as set forth in the applicable Merchant Application Form or as otherwise notified by Yuansfer to Merchant from time to time.
“Prohibited Content” means content that: (i) is illegal under Applicable Law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; or (vii) is otherwise objectionable to us in our sole, but reasonable, discretion.
“QR Code” means the machine-readable optical label that Yuansfer provides to Merchant in order to allow Merchant to accept payment for goods and services by Consumers from a Payment Method.
“Refund” means the amount of a refund made by Merchant (or an Approved Submerchant, as applicable) to a Consumer on account of a previously completed Transaction with such Consumer, without any deduction for any fees charged by the Payment Merchant or Fees charged by Yuansfer.
“Representatives” means with respect to a Party, its Affiliates and its and their respective officers, directors, members, managers, partners, employees, contractors and agents.
“Services” means (a) all services that Yuansfer provides to Merchant (including, but not limited to, access to the Yuansfer Platform) to enable acceptance of the Payment Methods and (b) any related implementation, training and/or other services, if any, to be provided by Yuansfer to Merchant; in each case as set forth in this Agreement and the applicable Merchant Application Form.
“Settlement Funds” means, with respect to a Transaction, an amount equal to (a) the settlement amount received by Yuansfer from a Payment Method on account of such Transaction, minus (b) the following amounts: (i) fees charged by the Payment Method with repsect to such Transaction, (ii) the Fees payable to the Yuansfer with repsect to such Transaction and (iii) any deductions for Refunds not previously processed.
“Subscription Term” means the term for which you are subscribing to the Services as set forth in the applicable Merchant Application Form, as such term may be terminated early in accordance with the terminations provisions set forth in this Agreement.
“Terminals” means a device provided by Yuansfer to Merchant capable of accessing a machine-readable medium and being able to scan a bar code, QR code or other machine-readable format generated in a Payment App on a Merchant’s portable device;
“Transaction” means an Online Transaction or Offline Transaction whereby a Consumer uses a Payment Method to purchase goods and/or services from Merchant or an Approved Submerchant and pays for such goods and/or services in U.S. dollars or any other currency that is expressly provided for in the applicable Merchant Application Form.
“Yuansfer IP” means the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services or any Services, and Documentation, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
“Yuansfer Marks” means Yuansfer’s name, trade names, trademarks, service marks, trade dress, and logos.
“Yuansfer Platform” means the technology developed by Yuansfer that provides Merchant with a set of customized payment pages to allow for the collection of online payment remotely using one or more of the applicable Payment Methods.
“Yuansfer Website” means the Yuansfer’s website located at www.yuansfer.com, or such other website as specified by Yuansfer to the Merchant.