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© 2019 by PAYRIX. 

Payrix Referral Platform Agreement

 

This Payrix Referral Platform Agreement (the “Agreement”) is between the entity accepting this Agreement (“Platform”) and Payrix Solutions, LLC (“Company”).

 

Introduction

 

Platform is in the business of providing services (“Platform Services”) to merchants (each a “Platform Merchant”).  Company, together with Bank, is in the business of providing payment processing services (“Merchant Services”) to merchants pursuant to agreements with each of them (each a “Payrix Agreement” and each such merchant a “Merchant”).  Platform wishes to refer Platform Merchants to Company hereunder so that they might become Merchants and the parties hereto wish to integrate their respective platforms in order to assist in their respective clients accessing data and information from the others’ platform.  At the end of this Agreement there is a glossary where the capitalized terms in this Agreement appear.

 

1.   Merchant Services

 

The Merchant Services are a cloud-based payment processing system by which Company, Bank and Processor process payments on behalf of Merchants.  Company may also, where requested by a Merchant, perform other services on behalf of Merchant as per the terms of the Payrix Agreement. Company makes no representation as to whether Bank or Processor will make Merchant Services available for Platform or its Merchants. With respect to Merchant Services, each of Bank, Processor and Company have their own distinct underwriting criteria and process which may result in the denial by any of them of the availability of Merchant Services to Platform or Merchants.

2.   Referrals by Platform

 

In the event that a Platform Merchant or other contact of the Platform may be interested in procuring Merchant Services, Platform will provide the contact information of that Platform Merchant or contact to Company.  Each merchant that is referred to Company hereunder and that enters into a Payrix Agreement as a result of such referral shall be referred to herein as a “Referred Merchant”. Platform shall make no representations or warranties regarding the Company or the Merchant Services other than as expressly authorized in writing by Company. Platform shall perform its duties and obligations hereunder in compliance with all applicable federal, state and local laws, rules and regulations and all applicable Rules.

 

3.   Platform Access

 

During the term of this Agreement and each term of an applicable Payrix Agreement, Company shall grant Platform and each applicable Referred Merchant access to the Integration such that Platform will be able to deliver instructions and receive information to and from Company for and on behalf of each applicable Referred Merchant.  Company makes no representation as to the compatibility of the Merchant Services with the Platform.  Any and all instructions received from or information sent to Platform, in respect of such a Referred Merchant, shall be deemed to have been received from or delivered to the Referred Merchant under the Payrix Agreement.  For greater certainty, Platform shall not use the Account or Merchant Services for its own sales or Transactions; it shall, instead, act on behalf of the Referred Merchant in providing certain instructions to Company under the Payrix Agreement and also receive reports concerning the Merchant Services.  Platform shall not grant a fourth party access to the Account.  Platform represents that it has obtained consent from each Referred Merchant to perform under this Agreement and deliver and receive instructions for the Account pursuant to the Payrix Agreement and Platform shall be liable for any defect in such consent.  To the extent that Platform delivers instructions to Company that are inconsistent with or contrary to the Referred Merchant’s own intent, or if the Referred Merchant indicates that it has not consented to instructions provided by Platform hereunder, Platform shall be liable and shall indemnify and hold Company harmless from any and all related claims or disputes.  In operating under the Integration, each party shall be liable for the security of their respective systems.  Merchant Services are provided to Referred Merchants under Payrix Agreements and under this Agreement.  The only service provided to Platform hereunder is the Integration.

 

4.   Prohibited Activities

 

Platform shall refrain from, and shall prevent each Referred Merchant from, using the Integration, Platform Services or Merchant Services to, directly or indirectly, knowingly or unknowingly, assist or participate in any illegal activity or any Prohibited Activity.

 

5.   Prohibited Merchants

 

All of the following Persons are prohibited from using the Integration, Platform Services and Merchant Services: (i) Persons who appear on the U.S. Department of the Treasury, Office of Foreign Assets Control, Specially Designated Nationals List; (ii) Persons who are less than 18 years of age; (iii) Persons, or their Affiliates who have been previously terminated for cause by Company or any of its Affiliates; and (iv) Persons who are not both domiciled and resident in the United States.  Platform shall prevent any of the foregoing from accessing the Integration, Platform Services or Merchant Services.

 

6.   Referral Fees for Platform

 

Company shall pay Referral Fees to Platform in respect of Referred Merchants.  Notwithstanding anything in this Agreement to the contrary, no Referral Fees will be paid with respect to (i) any Referred Merchant with which Company may sign a Payrix Agreement independently of any referral by Platform, including any Referred Merchant with which Company was having discussions prior to such referral by Platform; (ii) any Referred Merchant who is already a party to a Payrix Agreement; and (iii) any Referred Merchant who is referred to Company by another third party. Company shall maintain records of Referred Merchants’ use of the Merchant Services and shall use such records to calculate Referral Fees payable hereunder.  Referral Fees shall be paid only during the term of this Agreement so long as: (a) this Agreement has not expired or been terminated for any reason; (b) Platform is not in default hereunder or under any other agreement with Company or any of its Affiliates; (c) no regulatory agency, such as Visa or MasterCard and no bank or other entity having authority over any Referred Merchant, Company or Platform has intervened in any way to prevent the payment of Referral Fees; (d) Company is continuing to receive its residual compensation in respect of Referred Merchants; and (e) Referred Merchants are not in default of their obligations under their Payrix Agreement.  Company may set off against any Referral Fees otherwise owing to Platform for any sums that are due and owing to Company under this Agreement or any other sums otherwise owed by Platform to Company or any of its Affiliates.

 

7.   Referred Merchant Fees

 

Company shall oblige Merchant to perform and pay Merchant Fees for Merchant Services under the Payrix Agreement.  The amount of Merchant Fees payable by a Referred Merchant shall be determined by Company in consultation with Platform.  Platform acknowledges that Merchant Fees are subject to change as per the Payrix Agreement.  Company shall not be liable if a Referred Merchant fails to pay Merchant Fees or creates any other liability under the Payrix Agreement or otherwise.

 

8.   Personal Information Consents

 

Platform represents that it has obtained from Referred Merchant and its Customers whose information it provides to Company through the Integration the necessary consents under applicable law in order for Company, Bank and Processor to collect, store, use and disclose such information under this Agreement and under the applicable Payrix Agreement. Platform shall, and shall require each Referred Merchant to, operate their respective businesses pursuant to a published privacy policy that is compliant with applicable laws. Nothing in this Agreement shall prevent Company from disclosing the contents hereof to a Referred Merchant and each Referred Merchant shall be a third party beneficiary hereunder entitled to enforce the rights of Company versus Platform.

 

9.   Referred Merchant Liability

 

Nothing in this Agreement shall reduce the liability of the Referred Merchant under the Payrix Agreement. Platform may provide services to Referred Merchant under the Platform Agreement; Company shall have no liability in respect of such services and Platform shall indemnify and hold Company harmless from and against any and all liabilities arising from or in respect of a Platform Agreement, Platform Merchants, Referred Merchants and their Customers.

 

10.   Company Privacy Policy

 

Company shall perform hereunder in accordance with its privacy policy posted on the Site.

 

11.   Automatic Termination

 

Platform shall inform Company of any termination of the Platform Agreement in respect of a given Referred Merchant.  This Agreement shall terminate in respect of a given Referred Merchant on any termination of their Payrix Agreement or their Platform Agreement.

 

12.   Termination by Company

 

Company has the right to terminate this Agreement at any time for any reason or for no reason.  On any termination hereof, Platform shall immediately be blocked from accessing the Accounts with respect to each Referred Merchant.  Company may, at its sole and absolute discretion, terminate the Integration or its compatibility with Platform in which case this Agreement shall immediately terminate in respect thereof.

 

13.   Termination by Platform

 

Platform may terminate this Agreement at any time on notice to Company.

 

14.   Liabilities on Termination

 

All liabilities of Platform that have accrued hereunder prior to termination shall survive termination hereof.

 

15.   IP

 

Company reserves all rights not expressly granted to Platform in this Agreement.  Company owns the title, copyright and other worldwide intellectual property rights in Merchant Services and the Integration and all copies thereof. This Agreement does not grant Platform any rights to Company's trademarks or service marks, nor may Platform remove, obscure, or alter any of Company's trademarks or service marks included in the Integration or Merchant Services.  All comments and suggestions concerning the services of Company provided to Company shall be the property of Company and Platform shall not have any rights therein.

 

16.   Indemnification

 

Platform shall indemnify, defend and hold Company, Bank, Processor, Payment Networks, Referred Merchants and all third parties that assist in providing the Integration and Merchant Services, as well as Customers and their respective employees, directors, and agents harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys' fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a third party that arises out of or relates to: (i) any actual or alleged breach of Platform representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of Company policies or the Rules; (ii) Platform’s wrongful or improper use of the Merchant Services or other services of Company; (iii) Platform’s violation of any third-party rights, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) Platform’s violation of any applicable law; or (vi) any other party's access and/or use of Merchant Services or other services of Company with Platform’s access code or a Referred Merchant access code given to Platform.

 

17.   No Warranties

 

THE SERVICES PROVIDED BY COMPANY HEREUNDER, THE INTEGRATION AND ALL UNDERTAKINGS OF COMPANY HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE INTEGRATION IS AT PLATFORM'S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY PERFORMS HEREUNDER WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

 

18.   Limitation of Liability

 

a. COMPANY SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF SALES, GOODWILL, PROFITS OR REVENUES.

 

b. COMPANY’S LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM SHALL NOT EXCEED ONE HUNDRED DOLLARS.

 

c. COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED DIRECTLY OR INDIRECTLY BY: (I) AN ACT OR OMISSION OF PLATFORM, A THIRD PARTY SERVICER, REFERRED MERCHANT OR THEIR AFFILIATES OR ANY CUSTOMER; (II) PLATFORM USE OF OR INABILITY TO USE INTEGRATION; (III) DELAYS OR DISRUPTIONS IN INTEGRATION OR THE MERCHANT SERVICES, (IV) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING THE INTEGRATION OR MERCHANT SERVICES; (V) BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN THE INTEGRATION OR MERCHANT SERVICES; (VI) ACT OR OMISSIONS OF THIRD PARTIES; (VII) A SUSPENSION OR OTHER ACTION TAKEN IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT WITH RESPECT TO REFERRED MERCHANTS; (VIII) COMPANY’S NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR PLATFORM’S OR A REFERRED MERCHANT’S DIMINISHED ABILITY TO DO BUSINESS AS A RESULT OF CHANGES TO THIS AGREEMENT OR COMPANY’S POLICIES OR SERVICES MADE IN ACCORDANCE WITH THIS AGREEMENT OR APPLICABLE LAW; (IX) BREACHES BY A REFERRED MERCHANT OR PLATFORM OF THIS AGREEMENT OR PAYRIX AGREEMENT; (X) INCORRECT OR INCOMPLETE TRANSACTION INFORMATION; (XI) REFUSAL OF BANK OR PROCESSOR TO ACCEPT PLATFORM AS A CLIENT OR ANY MERCHANT AS A CLIENT OR THE DECISION BY EITHER TO WITHHOLD OR TERMINATE PROCESSING FOR PLATFORM, A REFERRED MERCHANT OR ALL REFERRED MERCHANTS; OR (XII) COMPANY OR ONE OF ITS BANKING OR OTHER SUPPLIERS ELECTING TO SUSPEND PROVIDING INTEGRATION OR MERCHANT SERVICES IN RESPECT OF PLATFORM, A REFERRED MERCHANT OR A CUSTOMER ON THE BASIS OF ITS LEGAL, COMPLIANCE, OR RISK POLICIES.

 

19.   Confidentiality

Unless otherwise required by law, Platform shall, and shall cause its Affiliates to, hold in strict confidence at all times following the date hereof all Company Confidential Information, and neither Platform nor any of its Affiliates shall use such Confidential Information for any purpose other than for the performance of Platform’s duties and obligations hereunder. If Platform breaches, or threatens to breach, any of the provisions of this section, in addition to any other rights Company may have, including a claim for damages, Company shall have the right to have the provisions of this section specifically enforced, and Platform’s breach or threatened breach enjoined, by any court of competent jurisdiction, without presentment of a bond (such requirement being expressly waived by Platform), it being agreed that any breach or threatened breach of this section would cause irreparable harm to Company in that money damages would not provide an adequate remedy.

 

20. Miscellaneous

 

a. Arbitration. Company and Platform shall settle all disputes relating in any way to this Agreement or arising from or in respect of this Agreement exclusively by binding arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) (“AAA”) according to this provision and the applicable arbitration rules.  The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.  Arbitration shall take place in Dallas County, Texas before a single arbitrator who is a lawyer practicing commercial law. ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND PLATFORM IS HEREBY WAIVING PLATFORM’S RIGHTS TO HAVE ANY CLAIMS ARISING HEREUNDER DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST COMPANY.  

 

b. Governing Law. The validity, construction and performance of this Agreement shall be governed and construed in accordance with the laws of Texas applicable to contracts made and to be wholly performed within such state, without giving effect to any conflict of laws’ provisions thereof.  The Federal and state courts located in Dallas County, Texas shall have sole and exclusive jurisdiction over any disputes arising under the terms of this Agreement.

 

c. Limitation on Time to Initiate a Dispute. Unless otherwise required by applicable law, an action or proceeding by Platform relating to any dispute or claim by Platform hereunder must commence within one (1) year after the cause of action accrues failing which Platform foregoes any rights in respect thereof.

 

d. Electronic Signature. When provided to Platform for execution in electronic form, this Agreement and all related electronic documents, shall be governed by the provisions of the Electronic Signatures in Global and National Commerce Act (E-Sign).  By pressing “Submit”, “Accept” or “I Agree”, Platform agrees (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents and (iii) that Platform has the ability to print or otherwise store the Agreement and related documents.

 

e. Notices. All notices and other communications required or permitted hereunder to be given to a party to this Agreement shall be in writing and shall be sent by electronic mail to the following addresses, if to Company, to the e-mail address indicated on the Site or the Integration sign-up forms, and if to Platform, to the e-mail address indicated on Integration sign-up forms.  Any notice sent in accordance with this section shall be effective upon transmission and electronic confirmation of receipt, or if transmitted and received on a non-business day, on the first business day following transmission and electronic confirmation of receipt.  Any notice of default of Company sent to Company shall also be sent by courier to the address of Company appearing on the Site with proof of delivery.

 

f. Amendment of Agreement. Company reserves the right to modify the Merchant Services, Integration or change or add to the terms of this Agreement at any time upon notice (electronic, oral or written) in a manner and at such time as Company deems reasonable.  If Platform does not terminate this Agreement following any such change, then Platform shall be deemed to have accepted the change.  This Agreement may also be amended by written agreement between the parties hereto.

 

g. Independent Contractors. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint ventures or partners with each other.  Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractors.

 

h. Assignment. Platform may not assign or otherwise transfer any or all of its rights or obligations under this Agreement without Company’s prior written consent, and any assignment without such prior written consent will be null and void.  Company may assign any of its rights or obligations hereunder to a third party.

 

i. Performance by Company Affiliates. Notwithstanding anything in this Agreement, Platform agrees and acknowledges that Company may provide some of the Merchant Services or Integration through its Affiliates or other third party service providers.  Platform agrees and acknowledges that providing the Merchant Services or Integration through any third party or Affiliate shall not be considered an assignment of this Agreement unless agreed upon in writing and Company shall be the sole entity liable for any provisions in this Agreement which apply to Company.

 

j. Electronic Communication. Platform agrees to receive all communication under this Agreement by electronic means, including but not limited to, (i) agreements and policies, such as this Agreement and Company Privacy Policy, including updates thereto; (ii) annual disclosure; (iii) transaction receipts or confirmations; (iv) communication in relation to delinquent Accounts (which may also be by phone, and may be made by Company or by anyone on its behalf, including a third party collection agent); (v) Account statements and history; and (vi) tax statements.  Platform shall make sure that its primary email address is up to date in the Account and it shall check that email periodically and not less than once per week.  In the event that any email from Company or other communication is blocked by a spam filter or other issue outside of the control of Company, Platform shall be deemed to have received the communication all the same.

 

k. Whole Agreement. This Agreement and its schedules constitute the entire understanding and agreement between the parties and supersedes any and all prior discussions, agreements, promises and correspondence, whether oral or written, with regard to the subject matter hereof or otherwise, including (without limitation) any memorandum of understanding between the parties.

 

l. Headings. Headings in this Agreement are included for reference purposes only and are not to be used in interpreting this Agreement. The recital and schedules to this Agreement constitute an integral part thereof.

 

m. No Waiver. No failure, delay of forbearance of either party in exercising any power or right hereunder will in any way restrict or diminish such party's rights and powers under this Agreement, or operate as a waiver of any breach or nonperformance by either party of any terms of conditions hereof.

 

n. Severability. In the event that any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and the unenforceable provision shall be enforced to the maximum extent permissible under law.  Nothing in this Agreement shall be construed or be deemed to create any rights or remedies in or for the benefit of any third party.

 

o. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.  A scanned or faxed version of this Agreement shall be deemed as an acceptable original thereof.

 

p. Survival. Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement shall survive and remain in effect in accordance with its terms upon the termination of this Agreement.  For greater certainty but without limitation, the indemnification, limitation of liability and confidentiality clauses shall survive termination hereof.

 

 

21. Glossary

 

“Account” means a processing account managed collectively by Company and Platform on behalf of, and for the benefit of, a Referred Merchant.

 

“Affiliate” means, with respect to any party, any corporation, company, partnership or other entity which is directly or indirectly controlled by such party or is directly or indirectly controlled by a Person that is the same as that which controls the party.  For the purposes of this definition, control shall mean ownership of half or more of the voting interests in an entity.

 

“American Express” means American Express Travel Related Services Company Inc.

 

“Bank” means a member of a Payment Network that has sponsored Company as a payment services provider, payment facilitator or otherwise to supply the Merchant Services and that acquires Card Transaction funds through Payment Networks.  When used in this Agreement, the term “Bank” shall also include Processor.

 

“Card” means a payment card or account number issued by a Payment Network member to a Cardholder pursuant to a valid agreement between the Cardholder and the Issuing Bank.

 

“Confidential Information” means all non-public, proprietary data or information of any party hereto which is valuable to the operation of such party’s business and is treated by such party as confidential. Confidential Information of a party MAY NOT include the identity of any vendor, client, customer, supplier or business contact of the other party, the fact that the other party has, or is trying to enter into, a business relationship with such third party, or the nature of the business relationship with such third party.

 

“Customer” means any Person that procures or seeks to procure products or services from a Referred Merchant.

 

“Integration” means a secure reciprocal connection of the Company and Platform systems by which data is exchanged between them in respect of Referred Merchants and their Customers in a format that is acceptable to Company.

 

“Issuing Bank” means a member of a Payment Network that issues Payment Network-branded Cards pursuant to the Rules.

 

“MasterCard” means MasterCard International Incorporated.

 

“Merchant Fees” means the fees of Company for which Referred Merchant is liable in exchange for the Merchant Services under the Payrix Agreement.

 

“Merchant Services” means payment processing services of Company, the Processor, the Bank, the Site, any software, programs, services, documentation, tools, hardware, internet-based services, components thereto provided directly or indirectly to Referred Merchant by Company.

 

“Payment Network” means Visa, MasterCard, American Express and such other payment networks as Company indicates are compatible with the Services.

 

“Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity.

 

“Platform Agreement” means an agreement between Referred Merchant and Platform pursuant to which Referred Merchant retains the Platform to access the Merchant Services on behalf of the Referred Merchant.

 

“Platform” the entity entering into this Agreement with Company.

 

“Processor” means a payment processor that has contracted with Company to assist Company in delivering the Merchant Services.

 

“Prohibited Activity” means any adult content; airlines, including charter airlines; alimony, child support, or other court-ordered payments; bidding fee auctions, including penny auctions; brand or reputation damaging, potential or otherwise, including bestiality, child pornography, escort services, mail order brides, and occult; buyers clubs, discount clubs or membership clubs; check cashing, or payment for a dishonored check or for an item deemed uncollectible by another merchant; computer repair or maintenance services; commodity trading or security trading; cruise lines; credit counseling or credit repair agencies; credit protection or identity theft protection services; counterfeit or possibly counterfeit goods, or products that infringe on the intellectual property rights of others; debt collection, consolidation, or reduction services; deceptive, unfair, predatory products, services or activities, or prohibited by the card payment networks; digital currency; discount medical or dental plans including discount insurance; discount coupon merchants or online sites; distressed property sales and marketing; door to door sales; drugs, alcohol, or drug paraphernalia, pseudo-pharmaceuticals, substances designed to mimic illegal drugs, or items that may represent them; factoring, liquidators, bailiffs, bail bondsmen; financial services or instruments, such as cash advances, bill payment, loans or loan payments, money orders, money transfers, prepaid cards, wire transfers, or sales of money orders or foreign currency; gambling or betting, including lottery tickets, casino gaming chips, off-track betting, sports forecasting or odds making, fantasy football, memberships on gambling-related internet sites and wagers at races, contests, sweepstakes, and offering prizes as an inducement to purchase goods or services; hate, violence, racial intolerance, or the financial exploitation of a crime; high interest rate non-bank consumer lending including payday lending and title loans; infomercial merchants; internet pharmacies or pharmacy referral sites; inbound or outbound telemarketing businesses including lead generation businesses; investment or “get rich quick” merchants, businesses or programs; licensed or franchised goods or services, such as apple products; marijuana dispensaries and related products or services; marketing activities involving “pay only for shipping” and/or “free trial” periods; medical equipment; multi-level marketing businesses, pyramid or ponzi schemes; merchants offering special incentives; negative option, renewal, or continuity subscription practices; obscene or pornographic items; pawn shops; pharmaceuticals, including medical marijuana; prepaid phone cards or phone services; prostitution, escort services, massage parlors, and other potentially sexually related services; real estate or motor vehicle sales; rebate or upsell programs; scrip-dispensing terminal; selling of mobile minutes; selling or sales of social media activity; stored value or quasi-cash; timeshares, timeshare resales and related marketing; tobacco, cigarettes, or e-cigarettes; unlawful activities or items, or activities or items that encourage, promote, facilitate or instruct others regarding the same; violent acts towards self or others, or activities or items that encourage, promote, facilitate or instruct others regarding the same; virtual currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exist in the virtual world; weapons, including replicas and collectible items, or ammunition or other accessories; weight loss programs; if merchant falls within the following exclusions, merchant will not accept the American Express card; equities (including stocks, bonds, or any other ownership position in a corporation); goods or services to be delivered more than two (2) months in the future, with an intention of gaining return on investment; internet auctions; political parties; telecommunications (including wireless, cable and internet); travel industry (including car rental, lodging, and other travel tour operators); in addition, merchant may not use the service for; impersonating any Person or falsely claiming an affiliation with any Person; collecting, or attempting to collect, personal information about merchants or third parties without their consent, or using such information except as necessary to use the service; sending unsolicited offers, advertisements, proposals, or junk mail or spam to others. this includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation materials, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signature; accepting payments for goods or services provided by someone other than merchant; providing merchant itself or others with a cash advance from a credit card; any illegal purpose, or violating any local, state, national, or international law, statute, or regulation, including, without limitation, laws governing intellectual property, taxation, and data collection and privacy; defaming, harassing, abusing, threatening, or defrauding others; posting, transmitting, or distributing content that is false, misleading, unlawful, obscene, indecent, lewd, pornographic, hateful, abusive, inflammatory, or that violates the rights of others (including rights of publicity or privacy); damaging, disabling, overburdening, or impairing Company, including without limitation, using the service in an automated manner; interfering with another merchant's enjoyment of the service, by any means, including by uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code; competing with Company or Company's business partners; sending or receiving what Company considers to be funds for something that may have resulted from fraud or other illegal behavior; abusing the payment card system or violating the Rules, in the reasonable opinion of the card payment networks or Company; operating outside the united states; acting as a money services business or money transmitter; transferring funds between bank accounts held in the same name; creating an account that is linked to another account that has engaged in any of the foregoing activities. Company may use evidence other than merchant account information to determine whether merchant control an account in someone else's name, including but not limited to internet protocol addresses, common business names, phone numbers, and mailing addresses; or any activity deemed by Company to be unauthorized, illegal, or criminal.

 

“Referral Fees” means a commission payable by Company to Platform on consideration of a Referred Merchant being referred to Company hereunder that enters into a Payrix Agreement.  The amount of Referral Fees payable shall be posted on the Site or indicated to Platform on Integration.  The amount of Referral Fees shall vary at the discretion of Company without prior notice or consent of Platform.

 

“Rules” means the rules and regulations of Payment Networks applicable to the Services.

 

“Site” means http://www.Payrix.com/.

 

“Transaction” means an actual or attempted Card payment transaction pursuant to Payrix Agreement.

 

“Visa” means Visa U.S.A., Inc., Visa International.