Merchant Terms and Conditions of Service
MERCHANT TERMS AND CONDITIONS OF SERVICE
These Terms and Conditions of Service (“Terms and Conditions”) are a legally binding Agreement (“Agreement”) between Hypur Inc. (“Hypur”), a Nevada corporation, and you (“You” or “Merchant”). Hypur provides a payment software platform (“Hypur Services”) that enables Merchant’s Customers to conduct electronic transactions for goods and services. This Agreement governs Merchant’s use of the Hypur Services. Hypur and Merchant are referred to herein each as a “Party” and together as the “Parties.” These Terms and Conditions are personal to Merchant and Merchant may not provide the Hypur Services to any third party.
IN ORDER TO UTILIZE AND ACCESS THE HYPUR SERVICES, YOU MUST ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS BY CLICKING THE “AGREE” BUTTON AT THE END OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MUST CLICK THE “DECLINE” BUTTON AT THE END OF THIS AGREEMENT AND YOU MAY NOT USE THE HYPUR SERVICES.
1. Hypur Services; Obligations.
1.1. The Hypur Services are intended to enable Merchant’s Customers to conduct electronic payments for goods and services. By using the Hypur Services to conduct a Transaction for goods or services with Merchant, Customer authorizes payment via an Automated Clearing House (“ACH") transfer from Customer’s Designated Bank Account to Merchant’s Designated Bank Account. As a technology provider to Merchant’s Financial Institution (“FI”), Hypur creates a Data File(s) in connection with Transactions by a Customer using the Hypur Services. Upon receipt of the Data File(s), FI processes it in accordance with applicable rules and regulations. No payments are made to or through Hypur. FI is the entity that controls funds sent to Merchant by Merchant’s Customers based upon instructions provided by Merchant and Merchant’s Customers through the Hypur Services. In providing the Hypur Services, Hypur is a “Third-Party Service Provider” (as defined in the NACHA Rules).
1.2. Provided Merchant agrees to these Terms and Conditions and satisfies the eligibility requirements in Section 2, Merchant will become authorized to access and use the Hypur Services. Hypur will provide Merchant with electronic access to the Hypur Commerce Merchant Portal, including providing access to information related to Transactions and Transaction Fees for a rolling twenty-four (24) month period. Hypur will also provide Merchant with an electronic keypad for Customers to enter their personal access code (“PAC”) at the point of sale, which serves as the Customer’s authorization for Merchant to initiate an ACH transfer. Merchant shall use such keypad in accordance with the user instructions and information transmitted by Hypur to Merchant from time to time. Merchant will not bypass or disable any security mechanisms in such keypad. Merchant will implement and install any updates to such keypad as provided by Hypur to Merchant. Merchant is responsible for the following: the maintenance of such keypad in good and clean operating condition; all costs incurred in connection with the shipment, use, operation, or possession of such keypad; all risk of loss associated with such keypad; any loss of or damage to such keypad; or any injury or damage caused by the usage of such keypad. Merchant shall not make any changes to the keypad without Hypur's prior written approval. Hypur makes no representations or warranties to Merchant about the keypad. Upon termination of this Agreement, Merchant shall return the keypad to Hypur in fully operating condition within ten (10) days.
1.3. Hypur may, in its sole discretion, limit or deny Merchant access to the Hypur Services for reasons including, but not limited to, the belief that Transactions conducted by Merchant expose any Party to harm, or violate these Terms and Conditions, or Applicable Law. If Hypur reasonably determines that the Hypur Commerce Merchant Portal has been used for any unauthorized, illegal, or criminal purpose (other than federal laws pertaining to the sale, use, or distribution of state-legal marijuana ), Hypur may notify FI of such activity.
1.4. Merchant understands and agrees to the following elements regarding its relationship with Hypur: (i) Hypur provides the Hypur Software and the Hypur Services; (ii) Hypur does not receive, hold, instruct, direct, or transmit funds; (iii) Hypur only maintains and manages information associated with funds generated by the sale of goods or services via the Hypur Services; (iv) FI provides all ACH entry and settlement services; and (v) Hypur is not a financial institution, credit reporting institution, money service business, or money transmitter.
2. Merchant Registration; Responsibilities.
2.1 In order to be eligible for the Hypur Services, Merchant must: (1) have a checking account with, and be sponsored by, a financial institution that utilizes the Hypur Services; and (2) be authorized by that financial institution to originate ACH transactions pursuant to its rules and applicable regulations.
2.2. Provided Merchant meets the eligibility requirements and agrees to these Terms and Conditions, Merchant will become authorized to access and use the Hypur Services. Merchant must select a user ID and password in order to access the Hypur Commerce Merchant Portal, which will serve as its primary source of communication with Hypur. Hypur will report all Transactions and corresponding Transaction Fees to Merchant via the Hypur Commerce Merchant Portal. Merchant is obligated to review any notices and statements from Hypur and to promptly report any apparent errors or unauthorized Transactions. Failure to timely contact Hypur may result in financial loss to Merchant. Any dispute of accuracy must be made in writing to Hypur within thirty (30) days of the inaccuracy occurring, after which time all items will be deemed accurate and accepted by Merchant. Merchant will keep all Account Information with the sponsoring financial institution current and accurate and will update its Hypur Commerce Merchant Portal password as required or recommended by Hypur from time to time.
2.3. By registering with Hypur for the Hypur Services, Merchant represents and warrants that (i) Merchant is either a legal resident of the United States, a United States citizen, or a business entity authorized to conduct business in the state(s) in which it operates, (ii) the individual agreeing to the Terms and Conditions of this Agreement has the authority to do so on behalf of Merchant, (iii) this Agreement is an enforceable obligation of Merchant, (iv) Merchant has the full power and authority to perform all its obligations under this Agreement, (v) there are no actions, suits or proceedings pending or threatened against Merchant which would materially adversely affect its ability to perform its obligations under this Agreement, (vi) the performance of this Agreement by Merchant will not violate its organizational documents or any material contract or other instrument to which Merchant is a party or by which Merchant is bound that would adversely affect the ability of Merchant to perform its obligations under this Agreement, (vii) the performance of this Agreement by Merchant does not require the approval of any other person or regulatory authority, and (viii) Merchant’s business and performance of its obligations pursuant to this Agreement are in compliance with and will not violate in any material respect any Applicable Law (including the rules of NACHA).
2.5. Merchant shall prevent unauthorized or fraudulent use of the Hypur Services by Merchant, its employees, agents, and Customers. Merchant will keep its user ID and password for the Hypur Commerce Merchant Portal confidential. Merchant will notify Hypur immediately upon learning of any suspected or actual unauthorized use of any of the Hypur Services, its user ID or its password. Merchant will update to the most current Hypur Software version and security updates and patches necessary to properly operate the Hypur Services.
2.6. Merchant is responsible for providing refunds for goods or services for which a purchase was made using the Hypur Services. Merchant is liable for any return of payments, including, but not limited to, insufficient funds, stop payments, unauthorized transactions to Customers and chargebacks. Merchant may be liable for any return fees charged by the Customer’s financial institution.
Merchant shall be responsible for the payment of all fees owed to FI in connection with Merchant’s use of the Hypur Services. Merchant consents to and authorizes FI to initiate ACH transactions to Merchant's Designated Bank Account for the settlement of Transaction Fees.
4. Intellectual Property; Merchant Usage of the Hypur Services.
4.1. Merchant may not copy, duplicate, or use Hypur’s trademarks, registered trademarks or copyrights without Hypur’s prior written consent. Merchant may not alter, modify or change HTML logos provided by Hypur in any way, or use them in a manner that disparages Hypur or shows or display them in any manner that suggest Hypur’s sponsorship, support or endorsement of your products or services. All right, title and interest in any Hypur website, any content therein, the Hypur Services, or the Hypur technology, and any and all technology and any content created or derived from any such information are the exclusive property of, and belong to, Hypur and its licensors. Hypur grants Merchant a personal, limited, non-exclusive, non-transferable license, without the right to sublicense, to electronically access and use the Hypur Services and the Hypur Software solely to accept and receive payments from Customers to their Designated Bank Account. Merchant will not alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code which is derived from the Hypur Software or the Hypur Services. Merchant's rights to use the Hypur Services and the Hypur Software cease immediately upon termination of this Agreement and Merchant must delete all of its copies of the Hypur Software.
4.2. In the event that the Hypur Software includes any open source code, the Hypur Software will be subject to compliance with the terms and conditions of the applicable open source license. Merchant may not use any computer code, data mining software, "robot," "bot," "spider," "scraper" or other automatic device, or program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor or copy any Hypur webpage (including the Hypur Commerce Merchant Portal), data or content found thereon or accessed through any Hypur webpage. Merchant may not republish content from any Hypur webpage (including the Hypur Commerce Merchant Portal) on another website or use in-line or other linking to display such content. Merchant may not introduce viruses, spyware or other malicious code to Hypur's websites (including their Hypur Commerce Merchant Portal). Merchant represents and warrants that Merchant uses frequently updated, commercially standard virus protection software to ensure that the system Merchant uses to access Hypur webpages (including the Hypur Commerce Merchant Portal) is virus free.
5. Merchant Obligations Regarding Hypur Services.
5.1. Merchant will provide to each Customer all goods and services sold to Customer by Merchant in all Transactions. Any Transaction submitted by Merchant will represent a bona fide sale by Merchant and will accurately describe the goods and/or services sold and delivered to a Customer. Merchant will cooperate to resolve any dispute or complaint regarding a Transaction with the Customer or with Customer’s financial institution.
5.2. Merchant has and will maintain all required permits, licenses and approvals to operate its business. Merchant is obligated to pay all taxes and other charges imposed by any governmental authority with respect to the provision of the Hypur Services and Merchant’s sale of goods or services to Customers.
5.3. Merchant may not act as a payment intermediary, aggregator or service bureau or otherwise resell the Hypur Services on behalf of any third party.
5.4. Merchant may not use the Hypur Services to transmit funds for any Customer or for cash advances.
5.5. Merchant may not accept payments for any restricted or prohibited businesses or business activities as set forth in any rules that Hypur may propound, or processing association rules, as such rules may be revised from time to time.
5.6. Merchant is responsible for obtaining any relevant information from Customer required under Applicable Law in connection with the sale of goods or services (for example, to verify that Customer meets applicable age requirements).
6. Merchant's Data Obligations.
Merchant will comply with Applicable Law with respect to all data and any other Personally Identifiable Information (as defined in the Gramm-Leach Bliley Act) received, accessed, stored or transmitted by Merchant in connection with this Agreement. Merchant will treat such data and information in a secure manner and will protect the privacy of the same. Merchant is solely responsible for the security of such data and information on computers, electronic systems and other devices owned or operated by Merchant or its service providers. Merchant will take such precautions as are necessary to ensure that Merchant’s computers and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that Merchant's system is breached, Merchant shall notify Hypur immediately.
7.1. Merchant may terminate this Agreement by contacting Hypur to close Merchant’s Hypur Commerce Merchant Portal. Upon termination, Merchant will no longer have access to the Hypur Commerce Merchant Portal.
7.2. Hypur may suspend or terminate Merchant’s use of, and access to, the Hypur Services and the Hypur Commerce Merchant Portal, in its reasonable discretion. Reasons for suspension or termination may include, but are not limited to, Hypur’s belief that Merchant (i) has breached the terms of this Agreement; (ii) poses an unacceptable credit or fraud risk; (iii) has provided false, incomplete, inaccurate, or misleading information or otherwise has engaged in fraudulent or illegal conduct; or (iv) for non-payment of fees owed under this Agreement.
7.3. Termination of this Agreement shall not affect any right or obligation accruing prior to such termination. Hypur will not be liable to Merchant for compensation, reimbursement, or damages in connection with Merchant's use of the Hypur Services, or in connection with any termination or suspension of the Hypur Services. Merchant’s responsibility for chargebacks, and authorization for FI to initiate an ACH debit to Merchant’s Designated Bank Account to settle chargebacks, shall survive termination of this Agreement for a period commensurate with a Customer’s right to dispute a Transaction.
8. Disclaimer. THIS AGREEMENT EXCLUDES, AND HYPUR HEREBY SPECIFICALLY DISCLAIMS, ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE HYPUR SERVICES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF QUALITY, PERFORMANCE, NONINFRINGEMENT, ACCURACY, DATA SECURITY, VIRUS FREE OPERATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOR ARE THERE ANY WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. HYPUR DOES NOT REPRESENT OR WARRANT THAT THE HYPUR SERVICES WILL OPERATE SECURELY OR WITHOUT INTERRUPTION, ANY THIRD-PARTY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE HYPUR SERVICES IS DOWNLOADED AT MERCHANT'S OWN RISK AND MERCHANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MERCHANT THAT RESULTS FROM SUCH DOWNLOAD. Hypur is responsible only for providing the Hypur Services and is not responsible for the results of any credit inquiry, the availability or performance of the internet, or for any damages or costs Merchant suffers or incurs as a result of any instructions given, actions taken or omissions made by Merchant, FI, any Customer's financial institution, or any internet service provider. Hypur makes no representations or warranties regarding the availability, accuracy, timeliness or completeness of Data or any output or results of the Hypur Services based in whole or in part on Data.
9. Force Majeure. Hypur shall not have any liability if it is unable to perform its obligations, in whole or in part, as a consequence of an act of God, fire, explosion, public utility failure, accident, strike, flood, embargo, war, terrorism, nuclear disaster, riot, failure of communication links or facilities, computer malfunction of a computer operated by or on behalf of Hypur as a result of events not within the control of Hypur, or other circumstances beyond Hypur’s control.
10. Limitation of Liability. Hypur shall not be liable to Merchant for any lost profits, loss of business, or any indirect, exemplary, consequential, incidental, punitive or special damages of any kind or nature, including, without limitation, damages for loss of profits, goodwill, use, data or other intangible losses, that result from the use of, inability to use, or unavailability of the Hypur Services. Under no circumstances will Hypur be liable for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access or use of the Hypur Services, the Hypur Commerce Merchant Portal, or the information contained therein. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HYPUR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE HYPUR SERVICES OR MERCHANT’S HYPUR COMMERCE MERCHANT PORTAL; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM MERCHANT'S ACCESS TO OR USE OF THE HYPUR SERVICES OR MERCHANT’S HYPUR COMMERCE MERCHANT PORTAL; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF HYPUR'S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE HYPUR SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE HYPUR SERVICE BY ANY THIRD-PARTY; AND/OR (VI) MERCHANT CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD-PARTY. IN NO EVENT SHALL HYPUR BE LIABLE TO MERCHANT OR ANY THIRD-PARTY FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING FIVE HUNDRED DOLLARS ($500). THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY OR ANY OTHER BASIS, EVEN IF HYPUR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
11. Indemnification. Merchant shall indemnify and hold harmless Hypur, and its directors, officers, employees, affiliates, and agents from and against all proceedings, claims, demands, losses, liabilities, damages and expenses (including but not limited to, any fines, fees, assessments, audit fees, penalties and attorneys’ fees and expenses) resulting from or otherwise arising out of (i) its use of the Hypur Services; (ii) Merchant or Merchant’s employees and agents acts or omissions in connection with the Hypur Services; (iii) Merchant’s operating activities and provision of goods and services to Customers; (iv) any violation of Applicable Law; (v) any infiltration, hack, breach, or violation of the processing system resulting from, arising out of, or in any way related to Merchant’s ability to use the Hypur Services including, but not limited to, Merchant’s use of an agent or any other third-party processor or system, or Merchant’s ability to connect to the internet or an external network; (vi) any action or omission of any third party with which Merchant has contracted; (vii) any bankruptcy proceeding; (viii) any action Merchant institutes against any third party; or (ix) any action Hypur takes against Merchant for any fees incurred pursuant of this Agreement. Merchant will also defend, indemnify, and hold harmless FI for acting in accordance with any instruction from Hypur regarding a Transaction. This indemnification shall survive any termination of this Agreement.
12. Dispute Resolution. All disputes shall be settled by a binding, non-appealable arbitration administered by the American Arbitration Association in Phoenix, Arizona in accordance with such association’s commercial arbitration rules in effect at the time. Judgment on any such decisions and awards may be entered in and enforced by any court of competent jurisdiction. If any provision of this arbitration agreement is found unenforceable or violates Applicable Law, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced. If the foregoing provision expressly violates a protection allowed to Merchant by virtue of Merchant being a citizen of a particular state and under Applicable Law, then the Parties will use good faith efforts to resolve any disputes.
13. Amendments. Hypur has the right to change or add to these Terms and Conditions by posting update notices on Hypur’s website at www.hypur.com or any other website maintained or owned by Hypur for the purposes of providing services in connection with this Agreement. Merchant’s use of the Hypur Services after Hypur’s publication of any such changes shall constitute Merchant’s acceptance of the amended Terms and Conditions.
14. Severability and Non-Waiver. If any provision of this Agreement is found to be illegal, the invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if the illegal provision is not contained in the Agreement. Neither the failure nor delay by Hypur to exercise, or partially exercise, any right under this Agreement will operate as a waiver or estoppel of such right, nor shall it amend this Agreement.
15. Waiver of Jury Trial and Covenant Not to Participate in a Class Action. MERCHANT HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS AGREEMENT OR ANY ACTION, LAWSUIT, CLAIM, COUNTERCLAIM OR OTHER ACTION RELATING TO, OR ARISING UNDER THIS AGREEMENT AND/OR ANY TRANSACTION GOVERNED BY THIS AGREEMENT. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY, VOLUNTARILY AND INTENTIONALLY BY MERCHANT, AND IS INTENDED TO ENCOMPASS EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE BE AVAILABLE. HYPUR IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY MERCHANT. MERCHANT ALSO COVENANTS NOT TO PARTICIPATE IN ANY CLASS ACTION AGAINST HYPUR BASED UPON ANY CLAIMS ARISING FROM THIS AGREEMENT.
16. Browser and Communications Services. Unless otherwise specified in an exhibit or addendum to this Agreement, the following minimum system requirements (“Minimum System Requirements”) are required to run the Hypur Software:
Internet access requirements: A dedicated, wired, business grade, high speed internet connection with a minimum upstream and downstream bandwidth of 5 MBps, however higher bandwidth is recommended.
Google Chrome: Version 50.0.2661
Mozilla FireFox: Version 46.0
Safari: Version 9.1(OSX), or Version 9.3.2 (iOS)
Internet Explorer: Version 10 or Version 11
Edge: Version 25.10586
The Parties acknowledge that Minimum System Requirements may change over time as technology changes, Hypur adds or updates features, or as the web browsers listed above update their versions. These Minimum System Requirements shall be deemed superseded by any updates reflected within Hypur’s periodic release notes, or Hypur’s support documentation as posted to the Hypur Commerce Merchant Portal. Merchant is responsible for the payment of any internet connection fees and telecommunication charges that Merchant incurs when accessing or utilizing the Hypur Services.
17. Contacting Hypur. If Merchant has questions or concerns regarding this Agreement or its use of the Hypur Services, it may contact Hypur at (480) 500-1974 or by e-mailing us at firstname.lastname@example.org. Hours of customer service may be found at gethypur.com/contact.
“Account Information” means the information provided by Merchant to the sponsoring financial institution in connection with opening an account and being authorized to conduct ACH transactions.
“ACH” means the Automated Clearing House network for the electronic funds transfer system governed by the NACHA Rules.
“Applicable Law” means, as applicable, all federal, state or other governmental statutes, codes, ordinances, laws, regulations, rules, guidance, written directives, orders and decrees applicable to the Hypur Services or a Party.
“Application” means Hypur's software application(s).
“Customer” means an individual who is registered to use the Hypur Services.
“Customer Information” means any information collected by Hypur from a Customer that is necessary to conduct a Transaction.
“Data” means Transaction Information and Customer Information.
“Data File” means properly formatted NACHA files created by Hypur.
“Designated Bank Account” means an eligible depository account with a financial institution which has been specifically designated for settlement of Transactions pursuant to this Agreement.
“FI” means a U.S.-based financial institution providing depository and other services to Merchant that has authorized and sponsored Merchant to utilize the Hypur Services.
“Hypur Commerce Merchant Portal” means an online recordkeeping profile created by Hypur for Merchant to use in connection with the Hypur Services.
“Hypur Services” means the services provided by Hypur, including (i) the creation of NACHA files on behalf of FI upon a Customer authorizing Merchant to originate an ACH debit/credit transaction(s) to the Customer's Designated Bank Account for debit/credit to Merchant's Designated Bank Account in exchange for goods or services provided by Merchant to the Customer; (ii) access to and use of the Hypur Software; and (iii) access to the Hypur Commerce Merchant Portal.
“Hypur Software” means any software or Application provided by Hypur for use by Merchant and Merchant’s Customers in connection with the Hypur Services.
“NACHA” means the National Automated Clearing House Association.
“NACHA Rules” means the bylaws, operating rules, guidance or other requirement of NACHA, as amended from time to time.
“Transaction” means a Customer's purchase of goods or services from Merchant utilizing the Hypur Services.
“Transaction Fees” means all fees assessed to Merchant by FI for use of the Hypur Services.
“Transaction Information” means information generated in connection with or related to a Transaction, including, but not limited to, date, time, items purchased, and amount.