Service Agreement for SegPayUS IPSP ?
This Service Agreement for SegPayUS is made by and between Segregated Payments, Inc, dba SegPayUS ("SegPayUS") and __________________ , a _________ corporation, (the "Client").
In consideration of the mutual covenants herein contained and intending to be legally bound by the provisions of this Agreement, the parties agree as follows:
1. Retention and Engagement:
Subject to the terms and conditions set forth below, Client engages SegPayUS to provide
merchant account services and reporting through its Internet Website. Both parties to
this Service Agreement agree that the terms outlined here are reasonable and agreeable.
This entire Agreement and the stated SegPayUS' duties herein are subject to termination
by either party at any time without cause, upon ninety (90) days) days written notice, at
either parties’ sole discretion, subject to the provisions of Section 21 of this Agreement.
2. Description of Services:
SegPayUS will provide to Client and Client will purchase from SegPayUS the SegPayUS
service (the "Service"). SegPayUS service is an electronic billing and payment service
which allows Client to accept payment for their services over the Internet via one or more
of the following: via credit cards, debit cards, or online checks. As part of the Service,
SegPayUS also provides the Client with access to the SegPayUS Management System
(SMS), which allows the Client to track sales and make certain administrative changes to
its account(s) on-line.
The following terms are defined for use in this Agreement:
"Agreement" means this Service Agreement for the SegPayUS service.
"Client" means the individual or business entity that agrees to these terms and conditions
and intends to use SegPayUS service to sell access to its services. Client’s principal place
of business must be located in the United States for it to enter into this Service
"End-User" means any person desiring to purchase access to the Client's services via
"Chargeback" means an End-User charge via the SegPayUS credit card service which the
End-User's credit card issuer identifies as being invalid or non-collectible after initial
acceptance on account of fraud, lost, canceled, unissued, or invalid account identification, an unresolved End-User complaint, or other cause which results in the deduction of the End-User charge from monies otherwise payable to SegPayUS. "Holdback” or “Delayed
Funds” means funds withheld from client sales in order to cover Chargebacks, Returns, Refunds, Card Association fees, indemnification obligations, or any other fees assessed. "Proof of Purchase" means an authentication provided to End-User by SegPayUS for use as an access device to Client's services.
"Refund" means an End-User Charge via the Service which SegPayUS, the Client, or the End-User and SegPayUS, or the End-User and Client identify as being invalid or non-collectible after initial acceptance on account of fraud, lost, canceled, unissued, invalid account identification, an unresolved End-User complaint, or other cause which results in the deduction of the End-User Charge from monies otherwise payable to SegPayUS. “Return" means a customer charge via on-line check which the customer's bank identifies as being invalid or non-collectible after initial acceptance on account of fraud, lost, canceled, unissued or invalid account identification, an unresolved customer complaint, or other cause which results in the deduction of the customer charge from monies otherwise payable to SegPayUS.
"Service" means SegPayUS’s electronic billing and payment services and any related products and services.
"Software" means software and related documentation provided by SegPayUS to Client in connection with the Service.
"Total Revenue" means Client's revenues for credit card services provided before the deduction of applicable Delayed Funds, service fees, and any other charges or obligations.
4. Fees and Delayed Funds:
4.1 Fees for SegPayUS Credit Cards are equal to a percentage of Client's Total Revenues for the SegPayUS Credit Card Service after the deduction of End-User Refunds. The applicable service fee percentage is based on the Client's Total Revenue Commitment for SegPayUS Credit Card and Check Services during the billing period (billing period is based on the actual number of days in the month).
Billing Period Monthly Commitment Volume Rate
Under $10,000 14.50%
$10,001- $25,000 13.50%
$25,001 – $50,000 12.50%
$50,001 - $100,000 11.50%
Over $100,000 10.50%
4.2 Fees for Credit Card Services Chargebacks. Client shall be charged $25.00 per valid
Chargeback processed against Client's account. Fees assessed against Client hereunder, if
any, shall be applied in the month immediately following the month in which the
Chargebacks were processed.
4.3 Fees for Credit Card Services Refunds. Client shall be charged $1.00 per Refund issued
against Client's account. The Refund Fee may be increased in SegPayUS's reasonable
discretion with thirty (30) days prior written notice given to the Client.
4.4 Fees for Credit Card Services Imposed By Card Association. Client shall be responsible for
any fees imposed upon SegPayUS related to processing Client's credit card transactions.
4.5 Fees for SegPayUS Online Checks . The service fee for SegPayUS Checks is 15% of the
Client's Total Revenues after the deduction of End-User Refunds.
4.6 Holdback for SegPayUS Credit Card Service and Online Check Service. SegPayUS will
withhold 5% of Client's Total Revenues for SegPayUS Credit Card and 10% for Online
Check Service for a period of six months and then release those funds in weekly
increments starting in the seventh month as Delayed Funds to cover Chargebacks and
Refunds for SegPayUS Credit Card and Online Check service. SegPayUS shall have the right,
in its sole discretion, on at least thirty (30) days written notice, to adjust the amount held
and holdback period as is deemed necessary as security against future End-User
Chargebacks, Refunds Fees, or any other obligations incurred hereunder.
4.7 Visa Annual Registration Fees. Client shall be responsible for the payment of annual
registration fees of: a) $750.00 to Visa for the first annual registration fee and $500.00 for
each subsequent annual renewal fee.
4.8 Fees for SegPay Debit Payment Processing are equal to Fifteen Percent (15%) of Client’s
Total Revenues for SegPay Debit Payment Processing services after the deduction of End-
User Reversals. End-User Reversal is defined as when a transaction is reversed PRIOR to it
leaving the Webbilling system to the bank. SegPay will withhold Ten Percent (10%) of
Client’s Total Revenues on Debit Payment Processing for a period of six (6) months and
then release those funds in weekly increments as Delayed Funds to cover Chargebacks
and Refunds. SegPay will process payments to Clients two weeks in arrears.
a. Transaction fees for Debit Payment Processing are as follows:
Austria Germany Great Britain Spain The Netherlands
Transaction fee 0,10 ? 0,10 ? 0,29 ? 0,30 ? 0,10 ?
Fraud Prevention Fee 0,38 ? 0,38 ? 0,33 ? 0,38 ? 0,35 ? (Applied to Signups Only)
Chargeback Fee 8,50 ? 8,50 ? 5,15 ? 8,50 ? 8,50 ?
Credits Fee 2,00 ? 2,00 ? 3,00 ? 3,00 ? 2,00 ?
Clients shall be charged a transaction fee on all transactions, both initial sign-ups and rebills. Fraud Prevention Fees are charged only on initial sign-up transactions.
5. Payment to Client:
5.1 Payouts. Client payouts for all funds processed through Woodforest Bank are based on activity from Tuesday through Monday. SegPayUS will process payments to Client two weeks in arrears. The payment due the Client is equal to the sum of Client's Total Revenues during the specified time period along with any Holdback Funds due to be released, LESS (i) the sum of all End-User Chargebacks, and any Chargeback Fees processed during the period, (ii) the sum of all End-User Refunds and any Refund fees processed during the period, (iii) the applicable service fee, and (iv) all taxes, penalties, charges and any other items reimbursable hereunder. There is no fee for direct deposits from Woodforest and there is no minimum deposit amount.
5.2 Payments through Inteca. International Electronic Commerce Association, (“Inteca”) is a non-profit association comprised of e-commerce companies and professional service providers formed with the aim of promoting the industry and offering a variety of services to merchants, organizations and other interested parties in international electronic commerce. SegPayUS has entered into an agreement for Inteca, as an entrusted third party payment program, to make payments to clients for a transmittal fee. Inteca will charge $10.00 for an ACH payment and $25.00 for a wire payment against Client's account for each transmittal. Deposits will not be made if the amount due is less than $150.00. Any outstanding balances not credited to Client shall roll over to Client's next billing cycle. Client authorizes Inteca to deposit amounts owed Client by initiating credit entries to Client's financial institution indicated on the form submitted to Inteca. Client further authorizes Client's financial institution to accept and credit any entries indicated by Inteca to Client's account.
a. Payment Minimum, Stop Payments. Client payments shall only be made at the end of
a payment period where the payment due to the Client is in excess of $150.00. If the
payment due to the Client at the end of a payment period is less than $150.00, then
payment to the Client shall be held over to the end of succeeding payment periods
until such time as the accumulation of Client's payments equal or exceed $150.00.
5.3 Payment to Client or Owner only. SegPayUS and Inteca will only direct payments to the Client, the owner or parent company of the Client, or the Client's registered fictitious or "DBA" name. Payments will not be made to agents or representatives of Clients. SegPayUS agrees to make payment to any third party management company authorized
in writing by the Client.
5.4 Compliance with OFAC. Client shall adhere to the United States Department of the Treasury OFAC administered sanctions in all credit card transactions
(http://www.treas.gov/offices/enforcement/ofac/sdn/). Failure to comply with this Section of the
Service Agreement shall be deemed a material breach and shall permit SegPayUS to immediately terminate the Service Agreement, for cause.
"Spam" generally involves the sending of unsolicited commercial e-mail. The use of Spam to promote a site receiving service hereunder is prohibited. While SegPayUS cannot monitor the manner in which clients advertise, upon receipt of a verifiable complaint that Spam has been generated on behalf of a site receiving Service hereunder, SegPayUS shall provide notice to the Client. Upon the second complaint of Spam sent to the same recipient, SegPayUS reserves the right to suspend the Client's account, until such time as Seg Pay receives adequate assurances, within the sole discretion of SegPayUS that the Client shall refrain from engaging in Spam.
7. End User Information:
Client understands that any information accepted by SegPayUS from End-Users is the property of SegPayUS, and shall remain the property of SegPayUS upon termination of this Agreement. Client shall receive from SegPayUS on a monthly basis all data that pertains to transactional information from the End-User. The data will be delivered in a format acceptable to the Client and that can be reasonably supplied by SegPayUS. Data to be included are: a) Card type; b) Consumer name; c) Consumer address; d) Consumer email; e) Username; f) Password; g) Transaction ID; h) URL; i) Purchase Status (rebill/one time); and j) Card number: first 8 and last 4 digits.
If SegPayUS ceases processing for the Client for any reason, Client is entitled to have its Client’s membership/client data delivered by SegPayUS in reasonable format to another
Payment Card Industry Data Security Standard (PCI) compliant processor or Merchant Account, within 2 business days of such cessation of processing services. Full data base
details shall include the End-Users credit card number but not CVV/CVV2 information. Storing CVV/CVV2 details are prohibited by the card associations. Client further agrees that they shall notify the End-User in the event of a change in processor. Neither
SegPayUS nor any entity or person in any way associated with SegPayUS shall be permitted to use, sell or give away the Client’s membership/client database or any information from that database other than for the sole purpose of delivering the services herein to Client.
8. Client Transaction Limits:
SegPayUS may impose limits on the amount or number of purchases which may be charged to an individual End-User account during any time period, or refuse to accept orders from End-Users with a prior history of questionable charges. SegPayUS may
impose transaction limits on Client either temporarily or permanently, which are more restrictive than limits placed on other clients in order to reduce SegPayUS’s reasonable risk of loss under varying circumstances. SegPayUS is in no way responsible for any losses sustained by Client, including claims for lost profits, on account of the imposition of transaction limits for any reason.
9. Refund Policy:
SegPayUS will use commercially reasonable efforts to direct inquiring and complaining End-Users to utilize the End-User support services offered by Client in order to resolve all disputes and complaints, however, SegPayUS reserves the right to issue a Refund without the knowledge or consent of Client in any case that it deems appropriate.
10. Excessive End-User Inquiries, Complaints, Chargebacks, or Card Association Penalties:
Client shall at all times have the ability to respond to inquiries from its End-Users promptly and shall endeavor to resolve disputes with End-Users amicably. The occurrence of complaints from End-Users and/or inquiries or Chargebacks regarding Client's services may be cause for termination of this Agreement by SegPayUS if such events occur with unacceptable frequency as determined in the sole discretion of SegPayUS upon reasonable notice in writing. In addition, SegPayUS reserves the right to charge Client reasonable fees and recover its expenses on account of excessive End-User inquiries, Card Association Penalties, Refunds, or Chargebacks. Prior to imposing such fees and attempting to recover its costs, SegPayUS shall notify Client of the details and nature of the problems and attempt to find mutually acceptable solutions. If SegPayUS and Client are unable to achieve mutually acceptable solutions, Client shall have the option of continuing this Agreement subject to the additional fees and costs imposed by SegPayUS, or of terminating this Agreement.
11. Password Security:
The security of Client's SegPayUS account is dependent in part upon the Client maintaining the confidentiality of the SegPayUS passwords. Client is wholly responsible for maintaining the confidentiality of Client's passwords and accounts and for any and all activities that occur under Client's account.
12. Tangible Goods or Property:
Client may not sell tangible goods or property of any kind under this Agreement.
13. Regulation Authorization, Client Representations:
Client represents and warrants that it is legally authorized and has obtained all necessary regulatory approvals and certificates to provide any services it intends to offer. Client further represents and warrants that it will comply at all times with all applicable federal, state/provincial, or local laws, rules and regulations, including any applicable card association or Automated Clearing House rules. Client is fully responsible for the content of its Web site and for the advertising and promotion of all of Client's products or offerings. Client represents and warrants to SegPayUS that it is the owner or that it has
full right and authority to use and disseminate all information, data, graphics, text, video, music or other intellectual property which either forms a part of its Web site, which is provided by Client to End-Users, or which is used by Client in its advertising and promotion to End-Users. The Client agrees to accept any valid Proof of Purchase provided by SegPayUS as payment for access to the Client's services.
14. Client Information:
Client is responsible for providing information that is timely, complete, truthful, and not misleading. Client will notify SegPayUS, in writing within thirty (30) days, of any changes of ownership, regulatory actions or financial conditions that could materially affect SegPayUS’s rights under this Agreement.
In consideration for payment of any applicable fees, Client is granted a personal, non-exclusive, non-transferable license to use the Software, in object code form only, solely in connection with the Service (the "License"). Client shall not: (i) attempt to reverse engineer, decompile, disassemble or otherwise translate or modify the Software in any manner; or (ii) sell, assign, license, sublicense or otherwise transfer, transmit or convey Software, or any copies or modifications thereof, or any interest therein, to any third party. Client agrees that the Software is the proprietary and confidential information of SegPayUS and/or its licensors. The License shall immediately terminate upon the earlier of: (i) termination or expiration of this Agreement; (ii) termination of the Service(s) with which the Software is intended for use; or (iii) failure of Client to comply with any provisions of this Section.
Nondisclosure of Confidential Information. Each party acknowledges that it will have
access to certain confidential information of the other party concerning the other party's business, plans, technology, and products, and other information held in confidence by the other party (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. The receiving party shall be responsible for any breach of this Section by its affiliates, agents, advisors, counsel and consultants. The obligations of this Section shall survive the termination or expiration of this Agreement for two (2) years thereafter.
Exceptions. Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
The Client is fully responsible for and agrees to pay all taxes and other charges imposed by any government authority on the services provided under this Agreement and on any transactions processed pursuant to this Agreement. This Section shall not be construed to impose any tax liability on the Client for any revenues or profits received by SegPayUS or Toccata, Inc. for transactions under this Agreement.
18. Limitations of Liability:
SEGPAYUS ASSUMES NO LIABILITY FOR DISRUPTIONS OR IMPROPER OPERATION OF THE SERVICE FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, VANDALISM, THEFT, ACTIONS OF THIRD PARTY SERVICE PROVIDERS, PHONE SERVICE OUTAGES, INTERNET DISRUPTIONS, EXTREME OR SEVERE WEATHER CONDITIONS OR ANY OTHER CAUSES IN THE NATURE OF "ACTS OF GOD" OR FORCE MAJEURE. SEGPAYUS SHALL NOT BE
RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING ANY LOSS OF PROFIT, REVENUE, SOFTWARE OR DATA, EVEN IF SEGPAYUS IS ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN NO CASE SHALL CLIENT BE ENTITLED TO RECOVER DAMAGES FROM SEGPAYUS WHICH EXCEED THE SUM OF THE AMOUNTS OF FEES RETAINED BY SEGPAYUS UNDER THIS AGREEMENT DURING THE ONE MONTH PRIOR TO THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES PROVIDED THAT CLIENT SHALL
ALWAYS BE ENTITLED TO RECOVER MONIES RECEIVED BY SEGPAYUS FROM END-USERS AND ALLEGED TO BE DUE AND OWING TO CLIENT UNDER THE TERMS OF THIS
19. Disclaimer of Warranties:
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, SEGPAYUS MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SEG PAY SERVICES, RELATED PRODUCTS, SOFTWARE OR DOCUMENTATION. SEGPAYUS SPECIFICALLY DISCLAIMS ANY AND ALL
IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Client agrees to fully defend, indemnify and hold harmless SegPayUS and its directors, officers, employees, independent contractors and agents from and against all claims, allegations, demands, causes of action, expenses, damages, losses, charges, liabilities, fines, costs or penalties, including attorneys’ fees and related expenses and costs relating
to (a) the breach by Client of any representation or warranty under this Agreement; (b) Client’s failure to perform its obligations under this Agreement; (c) fraud or misrepresentation by Client; (d) any act or omission of Client; and (e) bodily injury to, or death of, any person or damage to, or loss or destruction of, any property resulting from any act or omission of Client.
SegPayUS agrees to fully defend, indemnify and hold harmless the Client and its directors, officers, employees, independent contractors and agents from and against all claims, allegations, demands, causes of action, expenses, damages, losses, charges, liabilities, fines, costs or penalties, including attorneys’ fees and related expenses and costs relating to (a) the breach by SegPayUS of any representation or warranty under this Agreement; (b) SegPayUS’s failure to perform its obligations under this Agreement; (c) fraud or misrepresentation by SegPayUS; (d) any act or omission of SegPayUS; and (e) bodily injury to, or death of, any person or damage to, or loss or destruction of, any property resulting from any act or omission of SegPayUS.
Both parties reserve the right to terminate this Agreement, without cause, upon ninety (90) days prior written notice to the other party. Should, however, any card association or bank provide notice to SegPayUS of its decision to stop processing transactions for any reason, then SegPayUS shall have the right to terminate this Agreement upon thirty (30) days written notice to Client. SegPayUS may further terminate this Agreement immediately, without notice, at any time Client breaches any material provision of this Agreement. Upon termination, notice of non-renewal or cancellation of this Agreement, payment shall be made in accordance with Section 4, above.
In the event Client defaults in any provision or fails to perform pursuant to this Agreement, SegPayUS shall be entitled to any direct damages caused by that default, costs and attorney's fees from the Client, but shall not be responsible for any special, incidental, indirect or consequential damages.
23. Survival of Claims:
Any claim arising out of or related to this Agreement must be pursuant to Section 26, below, no later than one year after it has accrued.
24. Invalid or Non-enforceable Provisions:
The invalidity or non-enforceability of any provision of this Agreement, as so determined by a court of competent jurisdiction, shall not affect the other provisions hereof, and in
any such occasion this Agreement shall be construed in all respects as if such invalid or non-enforceable provision were omitted.
25. Account Claims and Disputes:
If another person or entity makes a claim against funds in Client's account, or if SegPayUS has reason to believe there is or may be a dispute over matters such as ownership of the account or the authority to receive payment or make changes to the account, SegPayUS may, in its sole discretion, (1) continue to rely upon current SegPayUS documents; or (2) hold the funds in an escrow account until determination of the ownership of those funds pursuant to Section 26, below.
26. Arbitration, Venue, Choice of Law:
Except to the extent a party is entitled to injunctive or other equitable relief to enforce the provisions of this Agreement, any controversy or claim arising out of or relating to this Agreement or breach of this Agreement shall be settled by binding arbitration in accordance with the Commercial Rules of the American Arbitration Association then in effect. Any demand for arbitration by a party hereto may be served on the other party at any time within the period provided by the applicable statute of limitations. The parties jointly shall select one independent and impartial arbitrator. Failing agreement by the parties, each party shall select an arbitrator who shall mutually select a third independent and impartial arbitrator, who shall be the sole arbitrator of any such dispute. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida and the venue for arbitration proceedings hereunder shall be Broward County, Florida. Each party shall pay the fees of such party's own attorney, and the expenses for such party's witnesses and all other expenses connected with presenting such party's case. Other costs of the arbitration, including the costs of any record or transcript of the arbitration, administrative fees, the fee of the arbitrator, and all other fees and costs, shall be borne equally by the parties. Depositions may be taken and other discovery may be obtained during such arbitration proceedings to the same extent as authorized in civil judicial proceedings. The arbitrator shall not extend, modify or suspend any of the terms of this Agreement; nor shall the arbitrator have jurisdiction to substitute the arbitrator's judgment for that of the parties in the absence of a clear abuse of discretion established by a preponderance of the evidence. The arbitrator shall render an award within thirty (30) days after the close of hearing or submission of the parties' briefs, whichever is later. The arbitrator shall not have jurisdiction to hear any controversy or claim for which a demand for arbitration is not filed in the manner specified and within the time limits specified herein. The arbitrator shall have no jurisdiction to award punitive or other damages in excess of actual damage. The decision of the arbitrator within the scope of the submission shall be final and binding on all parties, and any right to judicial action on any matter subject to arbitration hereunder is hereby waived. Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction, and either party may seek to enforce the judgment.