U.S. Client Services Agreement
Last Updated July 15, 2021
U.S. Client Services Agreement
(Electronic Payment Services for Direct Merchants)
PLEASE READ THIS CLIENT SERVICES AGREEMENT (“CSA”) CAREFULLY. THIS CSA CONTAINS A CLASS ACTION WAIVER AND A JURY TRIAL WAIVER.
This CSA is between YapStone, Inc., a Delaware corporation with offices located at 2121 N. California Blvd., Ste. 400, Walnut Creek, CA 94596 (“YapStone”), and the person or legal entity listed as the Client on the Client Services Application (as defined below) (the “Client”), and is effective as of the date Client agrees to this CSA (the “Effective Date”). Capitalized terms used in this CSA will have the meanings set forth in Section 1 below.
YapStone provides online electronic payment services (the “Services”) and Client wants to utilize the Services to enable Payments in connection with Client’s business. This CSA incorporates Client’s rights and obligations relating to YapStone’s service providers, including the Acquirer, to the extent required by Client’s use of the Services.
The parties agree as follows:
1.1. Certain Defined Terms. The following definitions are applicable to the singular as well as the plural forms of such terms:
A. “ACH” means and ACH/eCheck or other methods of electronic funds transfer.
B. “ACH Return” means an unsuccessful attempt by YapStone to debit a Client Bank Account for any reason.
C. “Acquirer” includes a merchant acquirer, eCheck or ACH service provider/processor, PIN debit acquirer, and their respective designated sponsoring member bank(s).
D. “Agreement” includes and incorporates by reference, in the following order of precedence: the CEA (if applicable); the American Express Terms posted at www.yapstone.com/legal/americanexpressterms; this CSA; the Fee Schedule; all YapStone policies, notices, and other content that appear on or that are linked to the Websites; and the Forms.
E. “Card Networks” means Visa U.S.A., Inc., Visa International, MasterCard International Incorporated, Discover Financial Services, Inc., and American Express Travel Related Services Company Inc.
F. “Cards” means credit cards and debit cards.
G. “CEA” means the Commercial Entity Agreement described in Section 13.10 below.
H. “Chargeback” means the right of credit and debit cardholders to file a claim for a refund with their Card issuer, for example, as a result of fraud or dissatisfaction with a purchase.
I. “Claim” means an assessment, charge, claim, demand, directive, fine, lawsuit or other litigation or proceeding for damages, losses, penalties, liabilities, or expenses (including reasonable attorneys’ fees and expenses) brought against the indemnified party by or on behalf of a third party.
J. “Client Bank Account” means a bank account listed on the Forms and owned by Client or a Payee. Client agrees that it will list only bank accounts that have been designated as business (rather than consumer) accounts by Client’s bank.
K. “Client Services Application” means the application by which Client applied for the Services and includes applications submitted via an online form.
L. “Cost” means all third party fees, assessments, and costs YapStone incurs in providing the Services to Client, including any penalties or fines imposed on Client or YapStone by the Acquirer, the Card Networks or Nacha resulting from Client’s use of the Services in a manner not permitted by the Agreement, the Operating Regulations, or the Acquirer’s rules and regulations.
M. “Fee Schedule” means the fee schedule presented to Client at the time Client applied for the Services.
N. “Fees” means the fees listed in the Fee Schedule.
O. “Forms” includes the Client Services Application, the bank change form, and any other YapStone form (online or otherwise) submitted by Client to YapStone.
P. “Initial Term” has the meaning set forth in Section 10.1 below.
Q. “Nacha” means the National Automated Clearing House Association.
R. “Operating Regulations” means the Card Network and Nacha operating regulations and other rules.
S. “Payee” means a party to whom Client provides services.
T. “Payments” means payments of amounts due to Client or a Payee using any combination of payment channels YapStone offers, which may include payments via Cards, ACH, Website, phone, or mobile application.
U. “Payor” means a person or entity that utilizes the Services to pay amounts due to Client.
V. “PCI DSS” means the Payment Card Industry Data Security Standards. Information on the PCI DSS can be found on the PCI Council’s website (www.pcisecuritystandards.org).
W. “Renewal Term” has the meaning set forth in Section 10.1 below.
X. “Reserve” means a personal or company guaranty or other form of adequate security, including a separate reserve account held by YapStone, or requiring Client to maintain specific types of insurance for Client’s business.
Y. “Reversal” means the return of funds to a bank account at the bank account owner’s request (e.g., due to unauthorized use of the bank account or insufficient funds).
Z. “Term” means the Initial Term and all Renewal Terms, if any.
AA. “Websites” means, collectively, (i) the websites owned by YapStone or a YapStone affiliate, including www.yapstone.com/terms-of-use, www.yapstone.com, www.vacationrentpayment.com, www.innpayment.com, www.instantprocessing.net, and any other website operated by YapStone or a YapStone affiliate, and any subdomain of any such websites, and any mobile application for such websites, and (ii) YapStone’s application interfaces.
BB. “YapStone Legal Center” means the Legal Center of www.yapstone.com.
1.2. Rules of Construction. As used in the Agreement, references to (A) “include,” “includes” or “including” will be deemed to be followed by the words “without limitation;” and (B) “$” or “dollars” will be references to United States dollars.
2.1. Relationship with YapStone.
A. Client hereby appoints YapStone as Client’s agent for the limited purpose of facilitating, on Client’s behalf, the receipt, collection and transmission of Payments from Payors to Client, and transmitting such funds to Client.
B. Client agrees that YapStone’s (and YapStone’s Acquirer’s) receipt of funds from a Payor on Client’s behalf in connection with the Services (i) is deemed to be Client’s receipt of funds from the Payor, and (ii) satisfies the Payor’s obligations to Client in the amount of the Payor’s Payment, even if YapStone fails to remit to Client the funds received from the Payor.
C. If Client uses the Services to facilitate the receipt, collection, and/or transmission of Payments on behalf of a Payee, or if Client represents to a Payor that payments made to Client will be made to Client as the agent of the Payee, Client represents and warrants to YapStone that Client (i) is contractually authorized to receive or collect Payments on behalf of the Payee, and (ii) has all requisite power and authority (including having been appointed as an attorney-in-fact by the Payee) to, and does, (a) appoint YapStone as the Payee’s agent for the limited purpose of facilitating, on the Payee’s behalf, the receipt, collection, and transmission of Payments from the Payor to the Payee; and (b) agree, on behalf of the Payee, that YapStone’s (and YapStone’s Acquirer’s) receipt of funds from the Payor on the Payee’s behalf in connection with the Services (1) is deemed to be the Payee’s receipt of funds from the Payor, and (2) satisfies the Payor’s obligations to the Payee in the amount of the Payor’s Payment, even if YapStone or Client fails to remit to the Payee the funds received from the Payor. Where Client is acting on behalf of a Payee pursuant to this Section 2.1.C, references in the Agreement to Client acknowledgements, agreements, representations, warranties, affirmations, authorizations, or consents will be deemed to be on behalf of Client and the Payee.
D. Client acknowledges that (i) YapStone is not a bank or other chartered depository institution, and (ii) funds received by YapStone (a) may be commingled with funds of others on whose behalf YapStone collects payments, and (b) will be held by YapStone (or its service provider) on behalf of, and for the benefit of, Client, in one or more pooled accounts at one or more banks insured by the Federal Deposit Insurance Corporation (“FDIC”). Client’s U.S. dollar funds held in any pooled account are insured up to the FDIC maximum. YapStone has sole discretion over the establishment and maintenance of any pooled account. YapStone will not use funds held in a pooled account for YapStone’s corporate purposes. Client will not receive interest or any other earnings on any funds that YapStone holds for Client or on Client’s behalf.
E. Client agrees that YapStone may (i) on Client’s behalf, submit Payment transactions to, and receive funds from, any Card Network, Nacha, or any Acquirer, and (ii) order from a processor a merchant identification number for Client. In some such cases, YapStone does not receive funds from Payors, and instead YapStone simply transfers data to support the transfer of funds from Payors directly to Client.
F. Client agrees that YapStone may (i) deny any Payor the ability to use the Services, for any reason, and (ii) decline to process any Payment due to fraud prevention activities, applicable law, or YapStone policies.
G. YapStone or its designee will provide Payors with a receipt and any other information required by applicable law confirming that Payment has been made on the applicable date. If required by applicable law, Client authorizes YapStone to collect from each Payor and remit to the applicable local taxing authority on Client’s behalf, all taxes applicable to the sale of Client’s or Payee’s products or services, including sales and use, lodging, or similar taxes.
2.2. Client Responsibilities. Client agrees to:
A. Comply with all YapStone policies with respect to the Services, all applicable Operating Regulations, and all federal, state, or local laws, rules, regulations, and regulatory guidance applicable to the conduct of Client’s business. Client acknowledges that the Card Networks and Nacha reserve the right to amend the Operating Regulations, and the places where the Operating Regulations are made available, without notice to Client. As of July 15, 2021, the Operating Regulations for the Card Networks and Nacha are available at:
(4) American Express: www.americanexpress.com/merchantopguide; and
(5) Nacha: https://www.nacha.org/rules.
B. Display a link to YapStone’s Payor Terms located at https://www.yapstone.com/rent-payment-user-agreement, and require Payors to accept the Payor Terms prior to making a Payment. In addition, if Client chooses to accept only certain types of Cards, Client agrees to inform Payors of the Cards Client accepts.
C. Use the Services solely for the collection and payment of amounts due to Client in the operation of its business and for no other purpose. Further, Client agrees that the Services are being provided by YapStone to Client as a business to business transaction. Client represents and warrants that Client (i) complies with all applicable law with respect to the conduct of its business, and (ii) has the legal authority to (a) conduct its business in the manner in which Client’s business is conducted, and (b) collect, and authorize YapStone to collect, Payments in connection with the conduct of Client’s business. If Client is unable to show such authority upon YapStone’s request, YapStone may suspend the Services or terminate this Agreement and may refund Payments to Payors.
D. Keep current all information identified on the Forms, including all Client Bank Account information. In addition, Client agrees to provide any other information as may be reasonably requested by YapStone to perform the Services. Client acknowledges that failure to update or provide such information may result in Payments being misdirected, delayed, or returned to the Payor. YapStone will not be liable for any direct or indirect damages resulting from Client’s failure to provide current and correct information.
E. Determine, collect, and report all taxes required to be collected, reported, or paid in connection with Client’s business and Client’s use of the Websites and Services, and Client represents and warrants that it will comply with all such obligations. Client acknowledges that YapStone may also have tax reporting responsibilities in connection with offering the Services. As a result, Client agrees to provide YapStone with a valid IRS Form W-9 and all other documents and information reasonably required for YapStone to file the applicable forms with the IRS (such as Form 1099), and Client agrees to receive Forms 1099k and 1042s, as applicable, from YapStone electronically via email. Client also acknowledges and agrees that Payments may be subject to back-up withholding taxes without notice to Client.
2.3. Settlement. Client acknowledges that YapStone will provide the Services in conjunction with an Acquirer and YapStone may use third party processors to provide some of the Services. The Acquirer will process all Card transactions for YapStone and Client. Client agrees that the Acquirer’s settlement of funds to YapStone’s designated bank account or a Client Bank Account discharges the Acquirer of the Acquirer’s settlement obligation to Client and that any dispute regarding the receipt or amount of settlement will be between YapStone and Client. YapStone will deposit Payments to Client Bank Accounts via ACH. Processing times may vary depending upon YapStone’s risk assessment, third party processor requirements and regulations, and Client’s bank’s processing time.
2.4. Authorization for Debits and Credits. Client authorizes YapStone to (A) credit to Client Bank Accounts any Payments or other amounts due to Client, and (B) debit from Client Bank Accounts any Chargebacks, refunds, Reversals, Fees and Costs, charges, or other amounts owed by Client to YapStone. Client represents that it has the legal right, power, and authority to authorize YapStone to credit and debit the Client Bank Accounts. Client agrees that if Client, or any third party acting on Client’s behalf, interferes with YapStone’s ability to debit any of the Client Bank Accounts, YapStone may suspend the Services or terminate this Agreement without notice and YapStone may pursue a collection action against Client in accordance with Section 3.3.
2.5. Modification of the Services. YapStone has the right, in its sole discretion and without notice or liability, to (A) modify, suspend, or discontinue the Services or Websites, and (B) impose limits on the features of, or restrict access to, the Services or Websites. If YapStone determines that any such modification, limitation, or restriction would have a significantly adverse effect on Client’s ability to use the Services or Websites, YapStone will provide Client notice, by email or by a posting on the YapStone Legal Center.
2.6. Relationship between YapStone, Client, Payors, and Payees. Client agrees that YapStone is not a party to Client’s agreement with any Payor or Payee. Therefore, in the event of a dispute between Client, a Payor, or a Payee for any reason other than YapStone’s performance of the Services, Client agrees to indemnify, defend, and hold harmless YapStone, its affiliates, and its officers, directors, agents, employees, and other representatives from and against any claims related to the dispute.
3. FEES AND COSTS AND RIGHT TO COLLECT.
3.1. Fees and Costs.
A. Client will pay YapStone the Fees set forth on the Fee Schedule.
(1) Beginning one year from Effective Date, and annually thereafter, YapStone reserves the right to increase the Fees by no more than 10% over the previous year.
(2) In addition, YapStone reserves the right to modify the Fee Schedule at any other time by providing notice to Client, via email or on Client’s invoice, at least 10 days prior to the modification effective date.
(3) Notwithstanding anything to the contrary that may be stated in the Fee Schedule, in the case of refunded Payments, YapStone will not return to Client the Fees charged for processing the original Payment.
B. In addition to YapStone’s right to debit Client Bank Accounts to collect the Fees and Costs, YapStone may require Client to provide YapStone with an alternative payment method. If Client does not provide an alternative payment method upon YapStone’s request, YapStone may delay Payments to Client Bank Accounts, increase the Fees, or terminate this CSA.
C. Client and YapStone each may charge Payors fees for the use of their respective services and each party is responsible for disclosing its fees to the Payors. If a dispute arises related to non-disclosure of Client-charged fees, Client will be liable to YapStone for the Fees and Costs for facilitating the payment of the full amount due to Client.
3.2. Right of Setoff. To the extent permitted by law and without notice, Client authorizes YapStone to withhold, from any Payment, any and all sums that Client owes to YapStone, including unpaid Fees and Costs, and amounts owed to YapStone in connection with any Reversal, refund, Chargeback or other adjustment to prior Payments.
3.3. Collection Actions. Notwithstanding any other terms of the Agreement, if Client fails to pay YapStone any amounts owed to YapStone under the Agreement (including amounts owed to YapStone for Reversals, refunds, or Chargebacks), YapStone reserves the right, on its own or through a third party collection agency, to initiate a collection action against Client to recover such funds. YapStone may charge interest, at the annualized rate of 10% or the maximum rate permitted by applicable law, on sums that remain unpaid 30 days after YapStone provides notice to Client of the amount due. Interest will be calculated daily, from the due date stated in the notice until the sum due has been paid in full. In such event, Client agrees to pay all costs and expenses, including collection agency fees and expenses and reasonable attorneys’ fees and expenses, incurred by or on behalf of YapStone in connection with the collection action.
3.4. Escheatment. YapStone reserves the right to collect a fee from Client for Payments YapStone is unable to remit to Client and that are unclaimed by Client for two years or more.
4. UNDERWRITING; RESERVE; CHARGEBACKS AND REVERSALS.
4.1. Underwriting; Risk and Fraud Reviews; Sole Proprietors.
A. At any time, YapStone may require Client to provide information to enable YapStone to (i) verify beneficial ownership or control of Client’s business, (ii) validate information Client previously provided (including information provided on the Forms), (iii) verify Client’s and Client’s shareholders’ (if any) identity, and (iv) assess Client’s financial condition and the risk associated with Client’s business. The required information may include business invoices, copies of government-issued identification, business licenses, or other information related to Client’s business, beneficial owners or principals; documentation that allows YapStone to calculate Client’s outstanding credit exposure/risk of loss (e.g., Client’s financial statements, refund policies, data on captured but unfulfilled services, or the time between charge capture and fulfillment of Client’s services); or other records pertaining to Client’s compliance with the Agreement. Client represents and warrants that all information it provides to YapStone is true, correct and current, and Client acknowledges that YapStone is relying upon such information in entering into the Agreement and in providing the Services. Client acknowledges that YapStone will monitor Client transactions that utilize the Services to identify suspicious activity, prevent, detect, and deter fraud and money laundering, and protect the integrity of YapStone’s systems and business. YapStone may suspend the Services or terminate this Agreement immediately, and may refund any corresponding Payments to Payors, upon the occurrence of any of the following: (x) if Client becomes ineligible for the Services based on YapStone policies, (y) YapStone reasonably suspects Client has violated applicable law, or (z) if Client does not furnish the requested information in a timely manner.
B. If Client is a person, Client represents and warrants that Client conducts its business as a sole proprietorship and Client agrees that as a sole proprietor, Client does not qualify as a “consumer” under the U.S. Fair Credit Reporting Act. However, Client authorizes YapStone (or its designee) to request reports on Client from a consumer reporting agency at any time. Such reports will be used to determine whether Client continues to meet the terms and conditions of the Agreement. YapStone reserves the right to terminate, suspend, or limit access to the Services based upon YapStone’s review of such reports. If Client’s access to the Services are so terminated, suspended, or limited based upon information contained in a report, YapStone will notify Client in accordance with applicable law.
4.2. Reserve. As a condition of continuing to provide Services to Client, Client agrees that YapStone may, at any time, require a Reserve. YapStone may set the Reserve in an amount that it reasonably determines is necessary to cover its or any Acquirer’s risk in connection with providing the Services to Client (including anticipated Chargebacks or credit risk). The Reserve may be raised, lowered, or removed from time to time in YapStone’s sole discretion. If the Reserve is in the form of a separate reserve account (a “Reserve Account”), Client agrees that YapStone may fund the Reserve Account from amounts due to Client under the Agreement and Client grants YapStone the right, without prior notice to Client, to debit the Reserve Account to collect amounts owed to YapStone under the Agreement. Client grants YapStone a security interest in, and lien on, all funds held in any Reserve Account. Client will execute any additional documentation required for YapStone to perfect such security interest. This security interest survives for as long as YapStone holds funds in the Reserve Account. Client agrees that all interest or other earnings that may accrue or be attributable to the Reserve Account will belong to YapStone.
4.3. Chargebacks and Reversals.
A. Payment by a Payor is subject to a right of Reversal or Chargeback. These rights exist between the Payor and the Payor’s bank or Card issuer. Client acknowledges that (i) the Chargeback and Reversal processes, procedures and deadlines are set by the applicable Card issuing bank, Card Network, or Nacha, (ii) Chargeback and Reversal decisions are made by the applicable Card issuing bank, Card Network, or Nacha, (iii) all judgments as to the validity of the Chargeback or Reversal are made at the sole discretion of the applicable Card issuing bank, Card Network, or Nacha, and (iv) YapStone does not determine the outcome of a Chargeback or Reversal dispute. Further, Client agrees that it is responsible for any Chargeback or Reversal of a Payment, plus the Chargeback Fee or ACH Reversal Fee listed in the Fee Schedule,regardless of the reason for the Chargeback or Reversal. In the event of a Chargeback or Reversal of any Payment by a Payor, YapStone is authorized to, immediately and without notice, recapture such amount plus the applicable Chargeback Fee or ACH Reversal Fee associated with the Chargeback or Reversal from a Client Bank Account or to withhold such amount from any Payment due to Client. YapStone will have no obligation to pursue any collection action against any Payor. Therefore, YapStone’s obligation to remit to Client funds that YapStone collected from a Payor on Client’s behalf will be limited to funds that YapStone has actually received from the Payor that are not subject to Chargeback or Reversal.
B. With respect to Chargebacks, YapStone may, in its sole discretion, choose to assist Client to investigate and dispute the validity of the Chargeback on Client’s behalf. For disputed Chargebacks, Client (i) will be liable for all fees and Costs imposed by the applicable Card Network to dispute the Chargeback, (ii) agrees to cooperate with YapStone and to provide any information that may be reasonably requested by YapStone as part of the dispute process, and (iii) authorizes YapStone to share information about the Chargeback with the Payor, the Payor’s financial institution, and Client’s financial institution. If a Chargeback dispute is resolved in Client’s favor and YapStone is in possession of the applicable funds, YapStone will deposit the funds into a Client Bank Account. If a Chargeback dispute is not resolved in Client’s favor or Client chooses not to contest the Chargeback, Client waives its rights to repayment of the disputed funds. Client acknowledges that Client’s failure to abide by the applicable Chargeback dispute deadlines or to provide sufficient documentation (as determined by the applicable Card issuing bank or Card Network) may result in Client losing the Chargeback dispute. Client further acknowledges that American Express Chargebacks that are deemed to be fraudulent or unauthorized (as defined by American Express) may not be disputed.
C. YapStone’s Chargebacks Best Practices are available here: https://vacationrentpayment.com/chargeback-best-practices. If Client has incurred an excessive number or amount of Chargebacks or Reversals, as determined by the then-current and applicable Operating Regulations, YapStone may, without notice: (i) increase the Fees or Costs, (ii) impose new Fees, (iii) require Client to establish a Reserve, (iv) delay Payments to Client, and/or (v) suspend providing the Services to Client.
5. DATA SECURITY; PCI DSS; AND PRIVACY.
5.1. Data Security. Client represents and warrants that Payor data will be accessed only by those authorized Client employees and contractors who have a need-to-know such data based on their job responsibilities. YapStone will not be liable for any unauthorized use of, or access to, Payor personal or financial data by Client, Client’s employees, any other party associated with Client (such as contractors, vendors, invitees, or agents), or any person who uses or accesses such data through Client or Client’s systems, except to the extent such use or access is due to YapStone’s gross negligence. Client agrees to meet all applicable data security standards as required by law or regulatory authority, the Operating Regulations, any Acquirer, or the PCI DSS, including not storing a cardholder’s account number, expiration date, or CVV2 (“Payment Data”), setting access restrictions and implementing strict password requirements.
5.2. PCI DSS. YapStone is solely responsible for the security of Payment Data only as soon as YapStone receives the Payment Data. Client is responsible for making sure that Payment Data is secure and protected before the Payment Data reaches YapStone and Client must comply with Payment Data storage requirements. Client must annually certify its PCI DSS compliance. Upon YapStone’s request, Client will provide YapStone with all documentation reasonably required to validate such compliance. Each party agrees that it will use only PCI DSS compliant service providers in connection with the storage or transmission of Payment Data. Client agrees not to store CVV2 data at any time.
6. INTELLECTUAL PROPERTY.
6.1. Intellectual Property Rights. YapStone will at all times be deemed to be the exclusive owner of the Services, the Websites, and any other material that YapStone may use or provide in connection with the implementation and operation of the Services or the Websites, as well as all current and future patent rights, copyrights, trademark, trade name, and logo rights, mask work rights, trade secret rights, database rights, moral rights, and all other intellectual and proprietary rights of any kind or nature anywhere in the world (whether or not registered or perfected) with respect to the foregoing. Client does not acquire any right, title, or interest in or to any: (A) inventions, methods, processes, technology, or works of authorship that YapStone has developed, conceived, reduced to practice, or otherwise acquired, or any modifications, enhancements, or derivative works thereof; or (B) intellectual property rights with respect to any of the foregoing. Client will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from the Websites, the Services, or any other of YapStone’s intellectual property.
6.2. Name and Trademarks. Client will not use YapStone’s name or trademarks in any press release or promotional materials without YapStone’s prior written consent in each case. Client grants YapStone a limited, non-exclusive, royalty-free, paid-up license to use Client’s name and trademarks for the sole purpose of offering or marketing (including advertising, promotions, and sales literature) the Services to Client’s customers.
7.1. Client Indemnification. Client will indemnify, defend, and hold harmless YapStone, the Acquirer, and their respective parent companies and subsidiaries, and the directors, officers, employees, and agents of each (“YapStone Indemnified Parties”) from and against all Claims arising out of or in connection with (A) Client’s or any Payor’s use of the Services or Websites; (B) the conduct of Client’s business; (C) any breach (or, as to defense obligations only, any alleged breach) of the Agreement by Client; (D) Client’s gross negligence, fraud, misrepresentation, willful misconduct, violation of applicable law, or infringement of the rights of any person or entity; (E) a data security breach not caused by YapStone; or (F) Client’s violation of PCI DSS or the Payment Application Data Security Standards (PA-DSS), as applicable.
7.2. YapStone Indemnification. YapStone will indemnify, defend, and hold harmless Client and Client’s parent companies and subsidiaries, and the directors, officers, employees, and agents of each (“Client Indemnified Parties”) from and against all Claims arising out of or in connection with (A) any breach (or, as to defense obligations only, any alleged breach) of the Agreement by YapStone; (B) YapStone’s gross negligence, fraud, misrepresentation, willful misconduct, violation of applicable law, or infringement of the rights of any person or entity; or (C) a data security breach occurring at, in, or through the Websites, Services, or YapStone’s premises that (through no fault of any Client Indemnified Parties or any Payor) results in the unauthorized disclosure of Client’s personal information or Payor cardholder information.
7.3. Indemnification Limits; Process.
A. The obligations of the party providing indemnification under this Agreement (the “Indemnitor”) to the party seeking indemnification (the “Indemnitee”) will be (i) limited to the extent that the Claim is the result of the Indemnitee’s gross negligence or willful misconduct, and (ii) contingent upon the Indemnitee providing prompt written notice to the Indemnitor of the Claim in accordance with this Section 7.3, provided, however, that the Indemnitor’s indemnification obligation will be relieved only to the extent the Indemnitor is prejudiced by the Indemnitee’s delay or failure to provide such notice.
B. To be indemnified under this Agreement, the Indemnitee must (i) provide written notice of the Claim to the Indemnitor within five business days after the Indemnitee’s knowledge of the Claim; (ii) make all reasonable efforts to provide the Indemnitor with all information and material in the Indemnitee’s possession regarding the Claim; (iii) furnish to the Indemnitor such assistance as the Indemnitor may reasonably request in connection with the investigation, settlement, and defense of the Claim; and (iv) grant the Indemnitor sole control over the defense and settlement of the Claim; provided, however, that the Indemnitee may participate in such defense at its option and expense. Within 10 days of the Indemnitor’s receipt of the notice of the Claim, the Indemnitor will notify the Indemnitee as to whether the Indemnitor is assuming the entire control (subject to this Section) of the defense, compromise, or settlement of the Claim, and will provide to the Indemnitee the name and contact information for the counsel that the Indemnitor has selected. Any counsel that the Indemnitor retains for such purposes must be acceptable to the Indemnitee, whose consent will not be unreasonably withheld or delayed. The Indemnitor will (x) defend the Claim diligently and reasonably, (y) keep the Indemnitee fully advised as to the status of the Claim, and (z) not dispose of or settle any Claim in the Indemnitee’s name or in any manner that may adversely affect the Indemnitee’s rights or interests (including any settlement that (1) imposes liability on the Indemnitee, (2) includes the Indemnitee’s admission of fault or guilt, or (3) would require the Indemnitee to be bound by an injunction of any kind) without the Indemnitee’s prior written consent, which consent will not be unreasonably withheld or delayed. The Indemnitee will not be liable for any settlement entered into without the Indemnitee’s prior written consent (which consent will not be unreasonably withheld or delayed).
8. LIMITATIONS OF LIABILITY
8.1 EXCEPT FOR FAILURES CAUSED BY YAPSTONE, YAPSTONE WILL NOT BE LIABLE FOR ANY FAILURE THAT AFFECTS THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF A PAYMENT OR THE SERVICES.
8.2 EXCEPT WHERE A CLAIM: (A) IS SUBJECT TO INDEMNIFICATION UNDER THIS AGREEMENT; (B) ARISES OUT OF A BREACH OF CONFIDENTIALITY; OR (C) ARISES OUT OF THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD OF THE PARTY, IN NO EVENT WILL EITHER PARTY OR THE ACQUIRER OR ANY CARD NETWORKS, OR THEIR RESPECTIVE AFFILIATES OR SUPPLIERS, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR LOST PROFITS OR FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE PARTY OTHERWISE LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL YAPSTONE'S AGGREGATE LIABILITY ARISING OUT OF THE AGREEMENT EXCEED THE FEES THAT CLIENT HAS PAID TO YAPSTONE UNDER THE AGREEMENT DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ARISES PLUS, WHERE YAPSTONE HAS FAILED TO MAKE ANY PAYMENT DUE TO CLIENT, THE AMOUNT OF SUCH PAYMENT DUE.
8.3 Each party acknowledges that the other party has entered into the Agreement relying on the limitations of liability stated in this Section 8 and that these limitations are an essential basis of the bargain between the parties.
9.1. EXCEPT FOR ANY EXPRESS WARRANTIES CONTAINED IN THIS CSA: (A) THE SERVICES, WEBSITES, AND ALL CONTENT, SOFTWARE, MATERIALS, AND OTHER INFORMATION PROVIDED BY YAPSTONE OR OTHERWISE ACCESSIBLE TO CLIENT IN CONNECTION WITH THE AGREEMENT OR THE SERVICES, ARE PROVIDED "AS IS," AND (B) THE ACQUIRER, YAPSTONE, AND THEIR RESPECTIVE AFFILIATES AND SUPPLIERS MAKE NO WARRANTY OF ANY KIND (AND DISCLAIM ALL WARRANTIES OF ANY KIND) WITH RESPECT TO THE FOREGOING, WHETHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, YAPSTONE MAKES NO WARRANTY (i) THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS, (ii) THAT THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS, OR (iii) REGARDING THE QUALITY OF THE SERVICES.
9.2. CLIENT AGREES THAT THE ACQUIRER IS NOT A PARTY TO THE AGREEMENT AND THAT CLIENT WILL HAVE NO RECOURSE AGAINST THE ACQUIRER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT OR THE SERVICES.
10. TERM AND TERMINATION
10.1. Term. The Agreement will commence on the Effective Date and will continue for three years (“Initial Term”). Thereafter, the Agreement will renew automatically for successive three-year terms (each, a “Renewal Term”), unless either party gives written notice of nonrenewal not less than 180 days prior to the end of the Initial Term or then-current Renewal Term.
A. Either party may terminate the Agreement, upon written notice to the other party, (i) if the other party materially fails to comply with any material provision of the Agreement and does not cure such failure within 30 days after receipt of notice of the failure, (ii) for the other party’s negligent or willful act or omission relating to the Agreement, or (iii) if required to terminate by applicable law, the Card Networks, Nacha, or the Acquirer.
B. Client may terminate the Agreement, with 30 days’ written notice to YapStone, for any material modifications to the Fee Schedule as described in Section 3.1.A(2), or if YapStone modifies the Services or Websites and such modification significantly and adversely affects Client’s use of the Services or Websites.
C. YapStone may terminate the Agreement, with 30 days’ written notice to Client, if:
(1) Client does not send a transaction to YapStone for six consecutive months;
(2) The volume of Payments processed by YapStone for Client materially declines and such decline is not due to seasonality in Client’s business, as determined by YapStone in its reasonable discretion. If YapStone terminates for this reason, Client will pay to YapStone a termination fee equal to the average monthly Fees and Costs paid by Client in the six months prior to the beginning of the volume decline multiplied by number of months remaining in the Term at the time of termination (the “Volume Fee”); or
(3) Client has not utilized the Services to process any Payments within six months after YapStone enables client to accept Payments. If YapStone terminates for this reason, Client will pay to YapStone a termination fee of up to $999, as determined by YapStone (the “Non-Processing Fee”).
This Section does not limit YapStone’s termination rights outlined elsewhere in the Agreement.
10.3. Effect of Termination.
A. If YapStone terminates for cause pursuant to Sections 2.2.C, 2.4, 4.1.A, 10.2.A, or 10.2.C(1), YapStone reserves the right to charge Client the Termination Fee set forth on the Fee Schedule (which may also be described on the Fee Schedule as an “Early Termination Fee”) (the “Termination Fee”). Client agrees that the Termination Fee, the Volume Fee, and the Non-Processing Fee each represent fairly calculated liquidated damages and neither is a penalty. The expiration or termination of the Agreement will not relieve either party of any obligation to pay the other party any compensation due to the other party prior to the date of expiration or termination, including as applicable, Client’s obligation to pay YapStone any Fees, Costs, the Termination Fee the Volume Fee, or the Non-Processing Fee.
B. For any Payments in process at the time of expiration or termination of the Agreement, YapStone will have up to 120 days to complete those Payments and YapStone will deduct from those Payments any Fees or Costs owed to YapStone at that time. Notwithstanding the foregoing, YapStone may hold Payments to the extent that YapStone reasonably determines, in its sole discretion, is necessary to cover YapStone’s or any Acquirer’s risk in connection with anticipated Chargebacks and Reversals. In addition, Client will remain liable for Chargebacks, Reversals, charges, and any other obligations incurred by Client after the expiration or termination of the Agreement and Client authorizes YapStone to deduct such amounts from a Client Bank Account, without prior notice to Client, after the expiration or termination of the Agreement.
C. Upon the expiration or termination of the Agreement, YapStone will disable Client’s access to the Services and Client will remove all references to YapStone from Client’s website and/or software.
11. DISPUTE RESOLUTION; APPLICABLE LAW; WAIVERS. Please read this Section carefully. It affects Client's rights and will impact how claims Client and YapStone may have against each other are resolved.
11.1. Dispute Resolution Procedure. Most Client concerns can be resolved through YapStone’s customer service department. The parties will cooperate and attempt in good faith to resolve any potential dispute promptly by discussions between persons who have authority to resolve the potential dispute. If the parties are unable to resolve the potential dispute amicably at that level, Client will report the potential dispute to YapStone’s legal team at Legal@YapStone.com. Any Client disputes related to billing or Fees must be raised within 90 days of the relevant transaction or they are deemed permanently waived by Client.
11.2. Applicable Law and Forum. The Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws principles and Client agrees to exclusive personal jurisdiction in the state and federal courts located in the State of California, County of Contra Costa. IN ADDITION, YAPSTONE IS ENTITLED TO PURSUE A CLAIM IN SMALL CLAIMS COURT IF CLIENT FAILS TO TIMELY REMIT AMOUNTS DUE TO YAPSTONE, PROVIDED THAT YAPSTONE’S CLAIM AMOUNT IS WITHIN THE JURISDICTIONAL LIMITATIONS OF SUCH COURTS.
11.3 CLASS ACTION WAIVER AND JURY TRIAL WAIVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES AGREES THAT ANY PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (A) THE PREVAILING PARTY WILL NOT BE ENTITLED TO RECOVER ATTORNEYS' FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THE AGREEMENT); AND (B) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION. EACH PARTY KNOWINGLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTER-CLAIM RELATING TO OR ARISING OUT OF THE AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BETWEEN THE PARTIES.
Each party agrees to keep confidential and to use only for purposes of performing under the Agreement, any proprietary or confidential information disclosed by or on behalf of the other party in relation to the Agreement, as well as any other information that could reasonably be considered to be confidential. The obligation of confidentiality does not extend to information that is (A) publicly available through authorized disclosure, (B) rightfully obtained from a third party who has the right to disclose it, or (C) required by law to be disclosed. All confidential information will remain the property of the disclosing party.
13.1. Binding upon Successors and Permitted Assigns. The Agreement will be binding upon and inure to the benefit of the parties, their successors, and permitted assigns. Client may not assign the Agreement or any rights, obligations, or privileges under the Agreement without YapStone’s prior written consent. YapStone may assign its rights and obligations under the Agreement at any time without notice to Client.
13.2. Force Majeure. YapStone will not be responsible for delays, errors, failures to perform, interruptions, or disruptions in the Services or Websites resulting from any act, omission, or condition beyond YapStone's reasonable control, whether or not foreseeable or identified, including acts of God, labor strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disasters, public health emergency, hackers, or the failure of Client’s, a Payor’s, or any third party's hardware, software, or communications equipment or facilities.
13.3 Entire Agreement; Counterparts. The Agreement replaces and supersedes all previous and contemporaneous agreements between the parties, including prior versions of YapStone’s Client Services Agreement in paper and electronic formats, and Client waives all claims, refunds, credits, or damages related to or arising under any previous agreement between the parties. The Agreement may be signed in counterparts, including counterparts transmitted by electronic mail, each of which will be deemed an original and all of which will constitute one and the same instrument.
13.4. Severability. If any provision of the Agreement is determined to be invalid or unenforceable by any court of competent jurisdiction, the remaining provisions will (A) not be affected, (B) be binding upon the parties, and (C) be enforceable, as though such invalid or unenforceable provision (or portion thereof) were not contained in the Agreement. Any such invalid or unenforceable provision will be reformed by the court as necessary to express as nearly as possible the original intent of the parties and achieve the same economic effect as the original provision.
13.5. Amendment and Changes. The Agreement may be amended by YapStone or the Acquirer at any time without notice, provided, however, that any amendment that would significantly and adversely affect Client will be communicated to Client by email, posting on the YapStone Legal Center, or other writing. Client’s continued use of YapStone’s Websites or Services after the Agreement has been amended will constitute Client’s consent to the amendment. However, if Client does not consent to the amendment, Client can terminate the Agreement in accordance with Section 10.2.B above if Client provides notice of termination within 30 days following the date of the amendment. Client may not amend the Agreement without YapStone’s written consent. The Acquirer may amend the Agreement as it relates to the Acquirer’s processing of Card transactions upon notice to Client in accordance with the Acquirer’s standard operating procedures.
13.6. Waiver. The failure by a party to insist upon strict performance of any of the provisions contained in the Agreement will in no way constitute a waiver (A) of the party’s rights set forth in the Agreement, (B) at law or in equity, or (C) of any other provisions. No waiver of any provision or of any breach of the Agreement will be deemed a further or continuing waiver of such provision, breach, or any other provision of the Agreement.
13.7. Survival. Sections 1, 2.1, 2.4, 2.6, 3.2, 3.3, 4.2, 4.3, 5-9, 10.3, 11, 12, 13.4, and 13.6-13.10(subject to the terms of the CEA) of this CSA will survive termination of the Agreement.
13.8. Notices. All notices and other communications under the Agreement must be in writing. YapStone will provide notices to Client via email, an update to the YapStone Legal Center, or for changes to Fees or Costs, via Client’s invoice. Email notices to Client will be delivered to the email address provided when Client applied for the Services. Client may update its email address by providing YapStone with written notice to email@example.com. Client will provide all other notices to YapStone via email to firstname.lastname@example.org or via certified mail or overnight courier to: YapStone, Inc., Attn: Legal Department, 2121 N. California Blvd., Ste. 400, Walnut Creek, CA 94596.
13.9. Third Party Service Providers. YapStone may, without notice, change its third-party service providers, including any processor, Acquirer, or bank. All rights reserved for third party service providers in the Agreement apply to successor third party service providers. Client agrees that each third party service provider will have the right to enforce directly against Client the terms of the Agreement which relate to the provision of the third party service provider’s services to Client and the ownership and protection of the intellectual property rights of the third party service provider and its licensors. Client agrees that the third party service providers will have no responsibility or liability for YapStone’s obligations to Client under the Agreement.
13.10. Commercial Entity Agreement. If Client processes, through YapStone, more than the threshold specified by the Card Networks (currently, $1,000,000 in Visa card volume or $1,000,000 in MasterCard card volume in a calendar year), Client is bound by the CEA with a YapStone Acquirer and its sponsoring member bank(s) as identified at: https://yapstone.com/legal/cea. The CEA is not intended to change any transaction arrangements, Fees, Costs, or other terms between Client and YapStone under the Agreement. Instead, the CEA is intended to supplement the Agreement with respect to Client’s relationship with the Acquirer. The CEA may be modified by the applicable Acquirer at any time.