Payment Processing Services Agreement
PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING, VIEWING, DOWNLOADING OR OTHERWISE USING THE ACSS SCANNING SERVICE.
YOU MUST BE AT LEAST 18 YEARS OF AGE AND HAVE THE FULL RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS PAYMENT PROCESSING AGREEMENT (THIS “AGREEMENT”). THIS IS A LEGAL AGREEMENT BETWEEN YOU AND, IF APPLICABLE, THE ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THIS AGREEMENT (“YOU,” “YOUR”), THE ONE HAND, AND MOBIL MONEY, LLC (”MOBIL MONEY,” “WE,” “OUR” OR “US”), ON THE OTHER, GOVERNING YOUR USE OF MOBIL MONEY’S PAYMENT PROCESSING SERVICES (THE “SERVICES”), INCLUDING ANY SOFTWARE (INCLUDING ANY WEBSITE AND MOBILE APPLICATIONS) SUPPLIED OR MADE AVAILABLE IN CONNECTION THEREWITH (COLLECTIVELY, THE “SOFTWARE”). IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF AN ENTITY, THE PERSON SO ACCEPTING PERSONALLY REPRESENTS THAT HE OR SHE HAS THE LEGAL AUTHORITY TO SO BIND THE ENTITY.
BY CLICKING “I ACCEPT” OR BY ACCESSING ANY OF THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND THAT YOU AGREE TO BE BOUND BY ITS TERMS, INCLUDING TERMS THAT LIMIT OUR LIABILITY (SEE SECTION 44) AND REQUIRE INDIVIDUAL ARBITRATION FOR ANY POTENTIAL LEGAL DISPUTE (SEE SECTION 47).
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK “I ACCEPT” OR ACCESS, VIEW, DOWNLOAD OR OTHERWISE USE ANY OF THE SERVICES. IN SUCH CASE, YOU ARE NOT GRANTED PERMISSION BY MOBIL TO ACCESS, VIEW, DOWNLOAD OR OTHERWISE USE THE ANY OF THE SERVICES. YOU MUST PROMPTLY RETURN AND/OR DELETE ANY MATERIALS RELATED TO THE SERVICES, IF ANY, THAT YOU HAVE RECEIVED FROM MOBIL OR THAT YOU OTHERWISE HAVE IN YOUR POSSESSION.
THE SERVICES, INCLUDING THE SOFTWARE, ARE VALUABLE AND PROPRIETARY ASSETS OF MOBIL. YOU ARE HEREBY NOTIFIED THAT ANY VIOLATION OF THIS AGREEMENT MAY RESULT IN DIRECT AND CONSEQUENTIAL DAMAGES TO MOBIL MONEY FOR WHICH YOU MAY BE HELD LIABLE.
1. Mobil Account
(a) You must have an account with us (a “Mobil Account”) to use the Services. You confirm that you are either a legal resident of the United States, a United States citizen, or a business entity authorized to conduct business by the state(s) in which you operate and that you are an authorized signatory for the business you represent. You must use your or your business’ true and accurate name and federal tax ID or Social Security Number when opening a Mobil Account.
(b) You will also be requested to provide information from time to time in connection with the establishment and maintenance of your Mobil Account. You must provide timely accurate and complete information in response to any of our information requests, and keep that information current. You authorize Mobil to request identity verifying information about you, including a consumer report that contains your name and address. We may periodically obtain additional reports to determine whether you continue to meet the requirements for a Mobil Account. You permit Mobil to share information about you and your Mobil Account (including your request therefor) with any persons Mobil reasonably deems necessary or appropriate in connection with the establishment and maintenance of your Mobil Account, including your bank or other financial institution, the Networks (defined in Section 2), Mobil’s payment processors and Mobil’s and/or its payment processors’ acquiring banks. Mobil may also request additional information from you at any time. For example, Mobil may ask you to present invoices from your suppliers, a government issued identification such as a passport or driver’s license, a business license, or other information. Mobil may also ask for permission to inspect your business location. If you refuse any of these requests, your Mobil Account may be suspended or terminated.
(c) Mobil, its payment processors, its or its payment processors’ acquiring banks, or the Networks may conclude that you will not be permitted to use (or continue to use) the Services at their sole discretion. We reserve the right to suspend or terminate the Mobil Account of any user who provides inaccurate, untrue, or incomplete information, or who fails to comply with any information requests.
(d) You are fully responsible for all activity that occurs under your Mobil Account, including for any actions taken by persons to whom you have granted access to your Mobil Account.
2. Our Role
Mobil is a merchant of record that allows you to accept payments from customers for the payment for goods and services using any US-issued and most non-US issued credit, debit, prepaid, or gift cards (“Cards”) bearing the trademarks of American Express Travel Related Services Company, Inc. (“American Express”), DFS Services, LLC (“Discover”), MasterCard International Inc. (“MasterCard”) and Visa Inc. (“Visa”) (collectively, the “Networks”). We are not a bank and do not offer banking services as defined by the United States Department of Treasury. The Services allow you to. You are not required to accept any card brand as a condition of receiving the Services. We may remove or add Cards that we accept at any time without prior notice.
The Networks require that any person that processes more than the applicable Network’s specified amounts of Cards sales enter into a payment processing agreement directly with one of Mobil’s or one of its affiliates’ acquiring banks. In the event your sales exceed any of these thresholds, you may no longer be able to process Card transactions under this Agreement and will be required to enter into a payment processing agreement directly with one of Mobil’s or one of its affiliates’ acquiring banks. Similarly, if American Express considers you to be a high value customer, it may require that you maintain your agreement directly with American Express and designate Mobil or one of its affiliates as your agent for American Express payments. If any of the foregoing occurs, we will notify you of such requirement.
3. Your Authorization
In connection with the Services, you authorize us to act as your agent for the limited purposes of holding, receiving, and disbursing funds on your behalf. Your authorization permits us to generate a paper draft or an electronic funds transfer to settle the proceeds of each Card transaction that you process with us less any applicable Fees (as defined in Section 5) not paid by your customers (“Proceeds”). Your authorizations will remain in full force and effect until your Mobil Account is closed or terminated. Our receipt of transaction funds and Fees (if to be paid by your customer) satisfies your customer’s obligations to make payment to you. We will remit to you funds actually received by us on your behalf, less amounts owed to us, subject to any Chargeback (as defined in Section 15) or Reserve (as defined in Section 11) withheld or applied. You are the payee under any Card transactions you process through the Services, and Mobil is solely functioning as your agent to collect the payment on your behalf from your payor (your customer making payment to you for the services you are providing the customer). You, as the payee for all transactions processed through the Services, and not your payors, shall bear all of the risk should Mobil Money fail to remit to you any payments made by your payors to you through the Services; your payors shall have no risk should Mobil Money fail to remit to you any such payments. You acknowledge and agree that you shall have no recourse against any of your payors for payments made by them through Mobil Money using the Services.
This authorization also permits us to debit any of your linked bank accounts at any time for the purposes specified in this Agreement. You also agree to be bound by any applicable rules of the National Automated Clearing House Association.
(a) You may not, nor may you permit any third party, directly or indirectly, to: (1) export the Services, which may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII); (2) access or monitor any material or information on any Mobil system using any manual process or robot, spider, scraper, or other automated means; (3) except to the extent that any restriction is expressly prohibited by law, violate the restrictions in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services; (4) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure; (5) copy, reproduce, alter, modify, create derivative works, derive the source code of, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Services from Mobil; (6) use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement; (7) transfer any rights granted to you under this Agreement; (8) use the Services in a way that distracts or prevents you from obeying traffic or safety laws; (9) use the Services for the sale of firearms, firearm parts, ammunition, weapons or other devices designed to cause physical harm; (10) use the Services in any way that exposes you, other Mobil users, our partners, or Mobil to harm; or (11) otherwise use the Services except as expressly allowed under this Agreement. If we reasonably suspect that your Mobil Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Mobil Account, and any of your transactions with law enforcement.
(b) You may use the Services only for the processing of electronic taxi fare payments, and you shall not use the Services for any illegal activity or goods or for any other business of business activities that we, our affiliates or any of our or their acquiring banks determine in our sole discretion to be prohibited by law or any applicable bylaws, rules, guidelines and/or regulations (or similar) set forth by the Networks (the “Network Rules”) or to cause us, any of our affiliates or any of our or their acquiring banks any undue risk.
5. Our Fees
You agree to pay, or to cause your customer(s) to pay through the Software, the applicable fees as in effect from time to time and noticed to you (the “Fees”) for use of the Services. If the Fees are to be paid by your customer, the Software will inform you and the customer of the applicable Fees to be paid by the customer. If you are responsible for the Fees, the Software will notify you from time to time of the Fees currently in effect prior to the processing of the transaction. Through the Software you may cause your customer to pay the Fees applicable to the Card transaction in addition to the amount of the Card transaction itself. If not, the applicable Fees will be deducted from any Proceeds owed to you under this Agreement and thereafter from the Balance (as defined in Section 12) in your Mobil Account. The Fees may vary for customer-paid Fees and Fees to be paid by you for the processing of transactions. We reserve the right to change our Fees upon notice. You must agree to the change in Fees to continue to process Card transactions through the Services. All Balances and all Fees, charges, and payments collected or paid through the Payment Services are denominated in US dollars.
6. Processing Errors
We will attempt to fix processing errors we discover. If the error resulted in your receipt of fewer funds than you were entitled, we will credit your Mobil Account for the difference. If the error results in your receipt of more funds than you were entitled, Mobil will debit the extra funds from your Mobil Account or your linked bank account. We will only correct transactions that you process incorrectly if you notify us of such an error. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
7. Access to Proceeds
We will promptly deliver Proceeds to one of our servicing agents, i.e., payment settlement entity (each, a “Servicing Agent”), currently Frontier Payments, LLC. It is your responsibility to make arrangements with the Servicing Agent for the Servicing Agent to deliver your Proceeds to you. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, MOBIL MONEY MAY AMEND THIS SECTION IMMEDIATELY IN ORDER TO EFFECTUATE ALTERNATIVE FORMS OF DELIVERY OF YOUR PROCEEDS TO YOU.
8. Availability of Proceeds
We may defer payout or restrict access to your Proceeds if we need to conduct an investigation or resolve any pending dispute related to your use of the Services. We also may defer payout or restrict access to your Proceeds as necessary to comply with applicable law or court order, or if requested by any governmental entity.
9. Security Grant; Right of Setoff
To the extent permitted by applicable law, you grant us a security interest in, as well as a right of setoff against, and assign, convey, deliver, pledge and transfer to us, as security for repayment of any obligations due to us or any of our affiliates by you under this Agreement or any other agreement between you and us or our affiliates, all of your right, title, and interest in and to all of your accounts with us and/or any of our affiliates, including the Mobil Account, and any amounts owed by us to or any of our affiliates to you under this Agreement or any other agreement between you and us or any of our affiliates, including any Proceeds. You authorize us, without prior notice to you and irrespective of (i) whether we have made demand under this Agreement or any other agreement, as applicable; and (ii) whether the obligation is contingent, matured or unmatured, to the extent permitted by law, to collect, charge, and/or setoff all sums owing to us under this Agreement or any other Agreement between you and us or any of our affiliates (including without limitation any unpaid Fees, Chargebacks or refunds) against any and all such accounts and/or any amounts owed by us or any of our affiliates to you under this Agreement or any other Agreement between you and us or any of our affiliates, and at our option, to administratively freeze, or direct any third party bank holding any applicable account to freeze, all such accounts to allow us to protect our security interest, collection, charge and setoff rights as provided for in this section.
10. Mobil Account History
Transaction confirmations and summaries of your Mobil Account transaction activity history will be made available to you through the Software for a period of up to one year from the date of the activity. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your Mobil Account and your use of the Services, and (b) reconciling all transactional information that is associated with your Mobil Account. If you believe that there is an error or unauthorized transaction activity is associated with your Mobil Account, you must contact us immediately.
We may withhold funds by temporarily suspending or delaying payouts of Proceeds to you and/or designate an amount of funds that you must maintain in a separate reserve account (a “Reserve”) to secure the performance of your obligations under any agreement between you and Mobil. We may require a Reserve for any reason related to your use of the Services. The Reserve will be in an amount as reasonably determined by us to cover potential losses to Mobil. The Reserve may be raised, reduced or removed at any time by Mobil, in its sole discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you in Mobil’s favor, or otherwise as Mobil, its payment processors or Mobil’s and/or its payment processors’ acquiring banks may determine or require. If you do not have sufficient funds in your Reserve, we may fund the Reserve from any funding source associated with your Mobil Accounts, including any funds (a) deposited by you, (b) due to you from us, the Servicing Agent or any of our or its affiliates, including Proceeds, or (c) available in any bank/financial account associated with any account you may have with us, the Servicing Agent or any of our or its affiliates, or other payment instrument registered with or issued by us or the Servicing Agent or any of our or its affiliates (or on any of the foregoing’s behalf), in connection with the Services, including any debit cards on to which Proceeds have been deposited or any payment voucher issued by anf of the foregoing for the payment of Proceeds. You grant us a security interest in and lien on any and all funds held in any Reserve, and also authorize us to make any withdrawals or debits from the Reserve or any bank account associated with any account you have with Mobil or any of its affiliates, without prior notice to you, to collect amounts that you owe us. You will execute any additional documentation required for us to perfect our security interest in any funds in the Reserve. This security interest survives for as long as we hold funds in your Reserve.
12. Mobil Account Balances
While you have funds in your Mobil Account (your “Balance”), your Balance will be co-mingled and held with other participants’ funds in one or more pooled accounts at one or more banks by us on your behalf and for the benefit of you and others holding balances (each a “Pooled Account”). We have sole discretion over the establishment and maintenance of any pooled account. We will not voluntarily make funds available to our creditors in the event of bankruptcy or for any other purpose. You will not receive interest or any other earnings on any funds that we handle for you. As consideration for using the Services, you irrevocably assign to us all rights and legal interests to any interest and/or other earnings that may accrue or are attributable to our holding of your Balance in a Pooled Account or Reserve.
13. Failure to Pay
Your failure to fully pay amounts that you owe us on demand will be a breach of these terms. You are liable for any of our costs associated with collection in addition to any amounts owed, including attorneys’ fees and expenses, collection agency fees, and any applicable interest.
14. Dormant Mobil Accounts
If you do not process payments through your Mobil Account for an extended period of time, you may have a Balance that is deemed “unclaimed” or “abandoned” under your state’s law. If this occurs, Mobil will provide you with notice as required by applicable law and instructions for how to access your Balance. If funds still remain in your Mobil Account, Mobil will escheat such funds as permitted (or required) by applicable law to Mobil.
15. Your Liability for Chargebacks
There may be times when your customer may not be the authorized user of the Card or your customer may otherwise contest the transaction. In these instances, the amount of a transaction may be reversed or charged back to your Mobil Accounts (a “Chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by the Network, our processor and/or the applicable acquiring bank, or a customer or its financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized or (d) is allegedly unlawful, suspicious, or in violation of these terms. You agree to comply with the Chargeback process and to the liability associated with such Chargebacks.
16. Our Collection Rights for Chargebacks
For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve. We may recoup the amount of any Chargeback and any associated Fees, fines, or penalties listed in the Fee Schedule or assessed by a Network, our processor or any of Mobil’s or any of our payment processor’s acquiring banks from your Mobil Accounts (including any Reserve), any Proceeds or other amounts due to you under this Agreement, or any bank account or other payment instrument associated any of your Mobil Accounts. If you have pending Chargebacks, we may delay payouts from your Mobil Account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you until such time that: (a) a Chargeback is assessed due to a customer complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which your customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you agree to pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including attorneys’ fees and other legal expenses, incurred by us for the collection of all amounts unpaid by you.
17. Excessive Chargebacks
If we believe you might incur, or you are incurring, an excessive amount of Chargebacks, we may establish additional conditions governing your Mobil Account, including (a) establishing new processing fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payout, or (d) terminating or suspending the Services.
18. Contesting Chargebacks
You will assist us when requested, at your expense, to investigate any of your transactions processed through the Services. To that end, you permit us to share information about a Chargeback with the customer, the customer’s financial institution, our applicable payment processor and acquiring bank, and your financial institution in order to investigate and/or mediate a Chargeback. We will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, we will release corresponding reserved funds to your Mobil Account. If a Chargeback dispute is not resolved in your favor by the Network or issuing bank or you choose not to contest the Chargeback, we may recover the Chargeback amount and any associated fees as described in these terms. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within fifteen (15) days of our request, may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.
19. Restricted Use
You will not act as a merchant of record or otherwise resell or make available the Services to any third party. You will not use the Services to handle, process or transmit funds for any third party. You also may not use the Payment Services to process cash advances.
20. Unauthorized or Illegal Use
You will only accept Cards for transactions that are allowed by applicable law. We may decide not to authorize or settle any transaction that you submit to us if we believe that the transaction is in violation of this Agreement or any other agreement with Mobil, or that it exposes you, your customers, other Mobil customers, our payment processors and/or their or out acquiring banks or Mobil to harm. Harm includes fraud and other criminal acts. If we suspect that your Mobil Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Mobil Account, and any of your transactions with law enforcement and, as deemed necessary by Mobil, our payment processing and financial institution partners, including any applicable acquiring banks.
21. Assignment of Receivables
Except as otherwise required by applicable law, you will not assign in whole or in part, or grant any security interest in, your Mobil Account or any Card receivables or Proceeds due to you under these terms to any third party.
22. Applicable Network Rules
By using the Services, you agree to comply with all applicable Network Rules. The Networks amend their rules and regulations from time to time. Mobil may be required to change these terms in connection with amendments to the Network Rules. Significant portions of the Network Rules are available to the public at https://visa.com, https://www.mastercard.com, and https://www.americanexpress.com/merchantopguide. In the event of inconsistency between a Network Rule and this Agreement, and except as otherwise agreed between Mobil and the Network, the Network Rule shall apply.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason for your use of the Services (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. Mobil specifically disclaims any liability for Taxes. If in a given calendar year you process (i) more than $20,000 in gross payments and (ii) more than 200 transactions, you will be required to provide the Servicing Agent with a Form W-9, and the Servicing Agent will be required by law to report information about you and your use of the Payment Services to the Internal Revenue Service (“IRS”). For purposes of determining whether you have met the IRS reporting threshold, the gross amount does not include any adjustments for credits, cash equivalents, discount amounts, fees, refunded amounts or any other amounts. In addition, the Servicing Agent may request at any time that you provide the Servicing Agent with a Form W-9; a refusal to provide a Form W-9 may result in the suspension or termination of your Mobil Account.
24. Network Logos and Marks
Your use of Network logos and marks (“Marks”) is governed by the Network Rules; you must familiarize yourself with and comply with these requirements. The Networks are the sole and exclusive owners of their respective Marks. You will not contest the ownership of the Marks, and any Network may prohibit you from using its Marks for any reason and at any time. Mobil may require you to make modifications to your advertising and signage in order to comply with Network Rules related to the Marks.
25. PCI Compliance
If you store, process or transmit cardholder data, you will comply with the applicable Payment Card Industry Data Security Standards (PCI-DSS), as well as any requirements under the Network Rules. You will cooperate in forensic investigations as required by Mobil, its payment processors, its or their acquiring banks or any of the foregoing’s affiliates or vendors. For additional information, including tools to help you assess your compliance, see http://www.visa.com/cisp and https://www.mastercard.com/sdp.
26. Failure to Comply with Network Rules or Security Standards
Notwithstanding anything in this Agreement to the contrary, you understand that your failure to comply with the Network Rules or the PCI-DSS security standards, including the compromise of any Card information, may result in fines or other losses to Mobil. You will indemnify us and reimburse us immediately for any fines or losses directly or indirectly caused by your and your agents’ actions.
You will request that your customer personally sign for all transactions greater than $25 when your customer is present. You must make a written or email receipt available to your customers for any transaction greater than $15. You may give your customers the option to receive or decline a written or email receipt. All receipts shall bear any language required by Mobil Money, including that “Any payments made to Mobile Money, LLC for this transaction shall be deemed payment to the provider of the services for which you are making such payment.”
28. Customer Service
You are solely responsible for all customer service policies and issues relating to your goods or services, including pricing, order fulfillment, cancellations or no shows by you or a customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from us. As between you and us, we are solely responsible for customer service issues relating to any Mobil Account, payment, Card processing, debiting or crediting.
29. Refunds and Returns
By accepting Card transactions through the Services, you agree to process returns of, and provide refunds and adjustments for, your goods or services through your Mobil Account in accordance with this Agreement and Network Rules. Network Rules require that you disclose your return or cancellation policy to customers at the time of purchase. The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the customer for postage that the customer paid to return merchandise. If your refund policy prohibits returns or is unsatisfactory to the customer, you may still receive a Chargeback relating to such sales. You can process a refund through your Mobil Account up to one hundred and twenty (120) days from the day you accepted the payment. If your available Balance is insufficient to cover the refund, Mobil may at its election refuse to process the return or offset the refund against any other amounts owed to you by it under this Agreement, including any Proceeds. Mobil has no obligation to accept any returns of any of your goods or services on your behalf.
30. Representations and Warranties
You represent, warrant and covenant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) any information you provide in connection with the Services, including your business name, accurately and truthfully represents your business or personal identity under which you sell goods and services; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations and Network Rules applicable to you and/or your business; (e) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (f) your use of the Services will be in compliance with this Agreement. In addition, with respect to each Card transaction you process through the Payment Services, you represent, warrant and covenant to us that: (i) the Card transaction represents a bona fide sale; (ii) the Card transaction accurately describes the goods and/or services provided to the customer; (iii) you will fulfill all of your obligations to the customer and will resolve any dispute or complaint directly with the customer; (iv) you and the Card transaction comply with all federal, state, and local laws, rules, and regulations and Network Rules applicable to you and your business; (v) except in the ordinary course of business, you are not submitting a transaction that represents a sale to any principal, partner, proprietor, or owner of your entity; and (vi) you are not submitting a transaction involving your own Cards (except for reasonable test swipes).
You agree that so long as you are using the Services, you will maintain a valid government issued Drivers License and Taxi Licenses as required by any regulatory or licensing agency in the area in which you operate.
31. Compatible Mobile Devices and Third Party Carriers
We do not warrant that the Services will be compatible with your mobile device or carrier. Your use of the Services may be subject to the terms of your agreements with your mobile device manufacturer or your carrier. You may not use a modified device to use the Services if the modification is contrary to the manufacturer’s software or hardware guidelines, including disabling hardware or software controls—sometimes referred to as “jail broken.”
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk.
You are responsible for safeguarding your password and for restricting access to the Services from your compatible mobile devices and computer(s). You will immediately notify us of any unauthorized use of your password or Mobil Account or any other breach of security. Notwithstanding Sections 46 and 47, in the event of any dispute between two or more parties as to account ownership, we will be the sole arbiter of such dispute in our sole discretion. Our decision (which may include termination or suspension of any Mobil Account subject to dispute) will be final and binding on all parties.
33. Your License
We grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to use the Software, as authorized in this Agreement. We may make Software updates to the Services available to you, which you must install to continue using the Services. Any such Software updates may be subject to additional terms made known to you at that time.
We reserve all rights in Services, including for the avoidance of doubt the Software, not expressly granted to you in this Agreement. We own all rights, title, interest, copyright and other worldwide Intellectual Property Rights (as defined below) in the Services and all copies of the Services. This Agreement does not grant you any rights to our trademarks or service marks.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction.
You may submit comments or ideas about the Services (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place us under any fiduciary, confidentiality or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
We may terminate this Agreement, or suspend or terminate your Mobil Account or your access to any Service, at any time for any reason. We will take reasonable steps to notify you of termination by email or at the next time you attempt to access your Mobil Account. You may also terminate by deactivating your Mobil Account at any time by deleting the Software from your personal device or by returning any device provided to you by Mobil on which the Software was installed to Mobil; provided, however, that you will continue to be liable for all activity processed through your Mobil Account prior to such deactivation, including without limitation any refunds or chargebacks related to such activity.
36. Effect of Termination
If this Agreement or your Mobil Account is terminated or suspended for any reason: (a) your right to use the Services and any licenses or any other rights granted under this Agreement will cease, (b) we may (but have no obligation to) delete your information and account data stored on our servers, and (c) we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of your information or account data.
37. Termination of Payment Services
Mobil may terminate your use of the Services at any time for any reason. Any termination of this Agreement does not relieve you of obligations to pay Fees or costs accrued prior to the termination, Chargebacks, refunds and any other amounts owed to us as provided in this Agreement.
38. Payment Services Upon Closure of Your Mobil Account
Closure of your Mobil Account will cancel any pending transactions. Any funds that we are holding in custody for you at the time of closure, less any applicable Fees, will be paid out as set forth in this Agreement subject to any Reserve Mobil deems necessary or desirable to cover any potential risk or losses. Mobil will make a reasonable attempt to return any Reserve held following the termination of this Agreement not used to satisfy any of your obligations to Mobil under this Agreement within nine (9) months following the termination of this Agreement.
Provisions of this Agreement that by their nature or express provisions should survive termination of this Agreement, including without limitation the following Sections, shall survive termination of this Agreement: 6 (Processing Errors), 7 (Access to Proceeds), 9 (Right of Setoff), 8 (Availability of Proceeds), 10 (Mobil Account History), 11 (Reserve for Holding Funds), 12 (Mobil Account Balances), 14 (Dormant Mobil Accounts), 15 (Your Liability for Chargebacks), 16 (Our Collection Rights for Chargebacks), 17 (Excessive Chargebacks), 18 (Contesting Chargebacks), 23 (Taxes), 27 (Customer Service), 30 (Representations and Warranties), 34 (Ownership), 36 (Effect of Termination), 42 (Indemnity), 43 (No Warranties), 44 (Limitations of Liability and Damages), 45 (Third Party Third Party Services and Links to Other Web Sites), 46 (Disputes), 47 (Binding Individual Arbitration), 48 (Governing Law), 49 (Limitation on Time to Initiate a Dispute), 50 (Assignment), and 51 (Other Provisions).
40. Revisions, Disclosures and Notices
We may amend this Agreement and any of our Policies, at any time with notice that we deem to be reasonable in the circumstances, by posting the revised version on our website or communicating it to you through the Services (each a “Revised Version”). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any Dispute (as defined in Section 46) that arose before the changes will be governed by the General Terms, Additional Terms or Policies in place when the Dispute arose.
We may provide disclosures and notices required by law and other information about your Mobil Account to you electronically, by posting it on our website, pushing notifications through the Services, or by emailing it to the email address listed in your Mobil Account. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within twenty-four (24) hours of the time posted to our website, or within twenty-four (24) hours of the time emailed to you unless we receive notice that the email was not delivered. If you wish to withdraw your consent to receiving electronic communications, call the customer service phone number made available to you through the Software. If we are not able to support your request, you may need to terminate your Mobil Account.
You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us. These communications may be generated by automatic telephone dialing systems which will deliver prerecorded messages, including for the purposes of secondary authentication, receipts, reminders and other notifications. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you. You may opt-out of receiving communications by calling the customer service phone number made available to you through the Software. You acknowledge that opting out of receiving communications may impact your use of the Services.
You will indemnify, defend, and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) 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 person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement; (b) your wrongful or improper use of the Services; (c) any transaction submitted by you through the Services (including the accuracy of any content or product, service, or transaction information that you provide or any claim or dispute arising out of products or services offered or sold by you); (d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (e) your violation of any law, rule or regulation of the United States or any other country; and (f) any other party’s access and/or use of the Services with your unique name, password or other appropriate security code.
43. No Warranties
THE USE OF “MOBIL” IN SECTIONS 43, 44, 46 AND 47 MEANS MOBIL, ITS AFFILIATES, ITS PAYMENT PROCESSORS, ITS AND ITS PAYMENT PROCESSORS’ ACQUIRING BANKS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES).
THE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, MOBIL SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
MOBIL DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Mobil does not warrant, endorse, guarantee, or assume responsibility for any product or services advertised or offered by a third party. Mobil does not have control of, or liability for, goods or services that are paid for using the Services.
44. Limitations of Liability and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MOBIL BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, 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 SERVICES. IN ALL CASES, MOBIL WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
UNDER NO CIRCUMSTANCES WILL MOBIL BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR MOBIL ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF MOBIL IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, OR (B) $500.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF MOBIL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
45. Third Party Services and Links to Other Web Sites
You may be offered services, products promotions provided by third parties (including without limitation hardware and software) and not by Mobil (“Third Party Products”). If you decide to use Third Party Products you will be responsible for reviewing and understanding the terms and conditions for these services. We are not responsible for the performance of any Third Party Products. All Third Party Products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. MOBIL MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
“Disputes” are defined as any claim, controversy, or dispute between you and Mobil), including any claims relating in any way to this Agreement, the Services, or any other aspect of our relationship.
47. Binding Individual Arbitration
You and Mobil agree to arbitrate any and all Disputes by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST MOBIL. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (https://www.adr.org) according to this Section and the applicable arbitration rules for that forum. Consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in their local small-claims court rather than through arbitration so long as their matter remains in small claims court and proceeds only on an individual (non-class or non-representative) basis. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. If you are a consumer bringing a claim relating to personal, household, or family use, any arbitration hearing will occur within the county where you reside. Otherwise, any arbitration hearing will occur in New York, New York, or another mutually agreeable location. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. We will pay the arbitration fees due to the American Arbitration Association for individual arbitrations brought in accordance with this Section. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may seek to recover those fees from the arbitrator. For any claim where you are seeking relief, we will not seek to have you pay our attorney’s fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and Mobil also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases) will be brought in, and you hereby consent to, the exclusive jurisdiction and venue in the state or federal courts located in New York, New York.
48. Governing Law
This Agreement will be governed by New York law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within the state of New York, without regard to its choice of law or conflicts of law principles.
49. Limitation on Time to Initiate a Dispute
Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void ab initio.
51. Other Provisions
This Agreement is a complete statement of the agreement between you and Mobil regarding the Services. If any provision of this Agreement is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement does not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term.