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Unified Payments
Merchant Terms of Service

Last updated: November 21, 2024

These Unified Payments Merchant Terms of Service (these “Terms”), provide the terms upon which Refersion, Inc., a New Jersey corporation (“Refersion” or “our”, “we”, “us”, etc.) will provide the Unified Payments service more fully described below to the entity accepting these Terms (“Merchant”). These Terms supplement and are subject to the Refersion Terms of Service located at https://www.refersion.com/terms/ and its incorporated documents, such as Pantastic’s Privacy Policy located at https://www.refersion.com/privacy (the “General TOS”).  

The Unified Payments services are provided by Refersion for its Merchants who register for such Pay Services and are approved by Refersion’s Payment Partner. The Unified Payments Pay Services are integrated into the Refersion platform and provide Merchants the ability to pay Permitted Affiliates (as defined below) for approved Transactions (as defined in the General TOS). For Merchants, Unified Payments automates the Funding (as defined below) of a Merchant Unified Payments Wallet (as defined below) from the Merchant’s Funding Account (as defined below) based on the commission value associated with approved Transactions across all Permitted Affiliates that the Merchant works with.  The Unified Payments services also include functionality to collect and transmit tax reporting information and automatically generates and files IRS Form1099 when sufficient income levels are reported based on the tax data supplied by Permitted Affiliates through IRS Forms W-9 or W-8 Series.  All such services are referred to herein as “Pay Services.”

These Terms form part of the “Agreement” between Refersion and Merchant.  For the avoidance of doubt, the terms applicable to “Merchant” apply to Merchant under these Terms.  To the extent of any conflict between the General TOS and these Terms, these Terms control.  In the event that you have entered into an Order Form with Refersion, to the extent of any conflict between these Terms and such Order Form, the Order Form will govern. This Agreement is effective as of the date you register for an online Unified Payments account with Refersion or the date that you enter into an Order Form with Refersion incorporating these Terms, as applicable (the “Effective Date”).  If you are accepting these Terms on behalf of an entity, you represent and warrant that (i) you have full legal authority to bind Merchant to this Agreement; (ii) you have read and understood the Terms and (iii) you agree, on such entity’s behalf, to the Terms.

MERCHANT ACKNOWLEDGES THAT IT HAS READ THESE TERMS, UNDERSTANDS THE TERMS AND AGREES TO BE BOUND BY THE TERMS, AND REPRESENTS THAT THE PERSON ACCEPTING THESE TERMS ON ITS BEHALF (IF APPLICABLE) IS AUTHORIZED TO DO SO.

1. DEFINITIONS.  Capitalized terminology not defined in these Terms have the meanings given to them in the General TOS.  The following capitalized terms have these meanings wherever used in these Terms:

1.1 “Fee Schedule” refers to the fees set forth in Section 4.7 herein.

1.2 “Funding” refers to the process of transferring funds from a Merchant’s designated Funding Account to such Merchant Unified Payments Wallet.

1.3 “Funding Account” means the business checking account that Merchant designates to use as the source of Merchant’s funds for Funding.

1.4 “Insufficient Funds Deposit” means the funds held in Merchant’s Unified Payment Wallet to cover the fee that is charged if Funding fails due to insufficient funds in Merchant’s Funding Account or other issues in the Merchant’s Funding Account. If the Insufficient Funds Deposit is used, the amount of the Insufficient Funds Deposit will be added to the Merchant’s next Funding amount.  The amount of the Insufficient Funds Deposit is set forth in the Fee Schedule. 

1.5 “Payment” means payment of funds from one or more Merchant Unified Payments Wallets into a Permitted Affiliate’s Unified Payment Wallet.

1.6 “Payment Partner” means the third-party service provider that will, either directly or through its designated vendors, provide payment services as part of the Pay Services, and on instruction from Refersion, may perform services such as,  debiting applicable Merchant Funding Accounts; transferring funds to applicable Merchant Unified Payments Wallets; holding funds in such applicable Merchant’s Unified Payments Wallet; transferring funds to the applicable Affiliate Unified Payments Wallets; holding funds in such Affiliate Unified Payments Wallets; reporting, generating and filing 1099 forms for Affiliates; and such other related services as may be offered from time to time. 

1.7 “Payment Partner Services” means that portion of the Pay Services provided by the Payment Partner.

1.8 “Payout” means a payment to a Permitted Affiliate’s preferred payment destination from its Unified Payments Wallet via a Permitted Affiliate’s preferred payment method, as requested by such Permitted Affiliate or, if not requested prior, initiated on or about the 30th day after Payment.

1.9 “Refersion Dashboard” means the Refersion Merchant Dashboard, an online, interactive display or functionality made available directly by Refersion for use with the Pay Services.

1.10 “Unified Payments Wallet” refers to the digital wallet used by the Payment Partner to store funds for use for the Pay Services.  A Unified Payments Wallet may refer to the Unified Payments Wallet to be established to hold funds from a Merchant prior to the making of a Payment to an Affiliate Unified Payments Wallet and be referred to as a Merchant Unified Payments Wallet, or the Unified Payments Wallet to be established to hold Payments for a Permitted Affiliate prior to Payouts and referred to as an Affiliate Unified Payments Wallet. 

2. PAY SERVICES.  

2.1 General. Refersion will make available to Merchant, as part of the Services, the Pay Services, which provide additional functionality facilitating payments of a commission, referral fee or similar compensation to a Merchant’s Permitted Affiliates.  The Pay Services may include the administrative tax documentation relating to Payments and the initiation and processing of Payments to one or more Permitted Affiliates who have agreed to participate in a particular Merchant’s program. Once the Pay Services are configured, Merchant may interact with the Pay Services through the Refersion Dashboard.  The Pay Services will only be made available while Merchant is a paying customer of Refersion.

2.2 Permitted Affiliates Only.  Merchant may only use the Pay Services with regard to transactions with an individual or entity that has subscribed to the Pay Services for Affiliates pursuant to the Unified Payments Affiliate Terms of Service and who have been approved by the applicable Payment Partner (“Permitted Affiliates”).  Merchant shall not direct or suggest the use of the Pay Service to any Affiliate that is a resident of a country sanctioned by the U.S. government or use any method, whether technical, operational or otherwise, to conceal the country of residence of any Affiliate.

3. LICENSE.

3.1 Grant of Rights. Refersion hereby grants Merchant a non-exclusive, non-transferable, revocable right to use Pay Services, specifically to view reports issued by the Pay Services pursuant to the Agreement and accessed through the Pay Services, to view and access payment history, issue applicable tax forms, and to approve conversions for Merchant’s Permitted Affiliates.  All rights not expressly granted to Merchant are reserved by Refersion and the Payment Partner, Refersion’s licensors and Refersion’s other service providers.  

3.2 Restrictions.  Merchant’s use of the Pay Services remains subject to the restrictions found in the Agreement, including Refersion’s Acceptable Use Policy incorporated therein. 

4. PAYMENT SERVICES.

4.1 Scope of Payment Partner’s Role. 

The Pay Services will require the use of the services of the Payment Partner, who will provide, either directly or through its authorized agents, subcontractors, third party payment processing agents, payment partners, licensed money transmitters, third-party platforms and other third-party service providers (the “Payment Partner Providers”) Funding, Payments and other aspects of the Pay Services.  In connection with the provision of the Pay Services, Payment Partner, either directly or through its Payment Partner Providers, (a) onboards both Merchants and Permitted Affiliates, (b) performs the identity and financial checks needed for the Payment Partner’s designated Know Your Business (KYB) / Know Your Customer (KYC) processes, (c) creates and manages all Unified Payments Wallets for both Merchants and Permitted Affiliates, (d) debits Merchants’ designated Funding Account at Refersion’s direction, (e) initiates and orchestrates the  transfer of funds into each Merchant’s Merchant Unified Payments Wallet, (f) moves funds from such Merchant’s Merchant Unified Payments Wallet into the Affiliate Unified Payments Wallets of its respective Permitted Affiliates at the direction of Refersion, (g) issues Payouts as designated by Permitted Affiliates, (h) collects certain transaction fees from both Merchants and Permitted Affiliates in connection with the movement of funds in and out of the Unified Payments Wallets in accordance with the Fee Schedule and (i) performs other tasks reasonably related to the foregoing. With respect to the Payment Partner, the Pay Services require Merchant to agree to form a direct contractual relationship with the Payment Partner under contractual terms presented by the Payment Partner (the “Payment Partner Terms”).  Merchant’s agreement to such Payment Partner Terms is evidenced by Merchant clicking a button (stating a phrase such as “Accept” or “Yes”) or checking off a checkbox adjacent to equivalent phrasing or otherwise affirmatively assenting to enrollment in the Pay Services for use with the Payment Partner.  The Merchant may, from time to time, be presented with terms of service or privacy policies for individual Payment Partner Providers.  In such case, the Merchant will be required to agree to such terms of service or privacy policies by clicking a button (stating a phrase such as “Accept” or “Yes”) or checking off a checkbox adjacent to equivalent phrasing or otherwise affirmatively assenting to such terms of service or privacy policies in order to use the Pay Services. For the avoidance of doubt, Merchant is not a third-party beneficiary of any of Refersion’s Agreements with the Payment Partner.  Payment Partner Terms are not controlled by Refersion and may be amended or updated from time to time by the controlling Payment Partner.  Enrollment in and the use of the Pay Services require assent to the Payment Partner Terms presented by Refersion and/or the Payment Partner to Merchant during the enrollment process, as well as any future Payment Partner Terms that the Payment Partner may require Merchant to agree to in order to maintain such Merchant’s ability to use the Pay Services (collectively, the “Payment Partner Contracts”).  Merchant’s use of the Pay Services remains subject to the Payment Partner Contracts as amended or updated.  Additionally, the Payment Partner may enforce the terms of these Terms and any applicable Payment Partner Contracts directly against Merchant. From time to time, Refersion may add or remove a Payment Partner at any time by posting the change on the Refersion Dashboard or elsewhere on the Pay Services; provided, however, that Refersion will use commercially reasonable efforts to assist Merchant and any of its affected Permitted Affiliates with the transition of the Pay Services affected by such removal or addition of any new Payment Partner or Refersion’s internal platform, as applicable.  For the avoidance of doubt, there is no requirement that all of the Pay Services be provided by the same provider. 

 

4.2 Scope of Refersion’s role.  It is solely Merchant’s responsibility to determine if the Pay Services will meet Merchant’s own internal, legal and regulatory requirements related to Funding and Payment.  Any portion of the Pay Services related to the management, processing or transmission of payments or funds or the provision of any payment intermediary-related services are provided by Payment Partner, and not by Refersion. Therefore, Refersion shall not be liable to Merchant with respect to any and all costs, liabilities or damages arising or resulting from Payment Partner Services. To further clarify, Refersion does not store Merchant’s full account numbers, hold Merchant’s funds or otherwise take any action which may constitute acting as a payment intermediary or originator.  Refersion does receive and store the last four digits of Merchant’s Funding Account and the name of the banking institution holding Merchant’s Funding Account.  The Payment Partner Services do require the storage of sensitive information, including, in some cases, full account numbers by certain Payment Partners.  For the avoidance of doubt, Refersion is not a bank, savings and loan association, regulated financial institution or money transmitter.  Refersion forwards payment instructions to Payment Partner who then coordinates fund transfers required to complete the Funding, Payment, Payout and other transactions associated with the Pay Services, either directly or through its Payment Partner Providers.

4.3 Restricted Jurisdictions.   The Pay Services are not available in any jurisdictions that are subject to United States sanctions as established and maintained by the U.S. Office of Foreign Asset Control from time to time, or by applicable law in any jurisdiction the Pay Services operates. Regardless of the use of the Pay Services in any non-sanctioned jurisdiction, all transactions must be conducted in United States Dollars.  The Pay Services do not include, and these terms do not apply to, the receipt of mailed checks or virtual prepaid or credit card payments that may be facilitated by the Payment Partner in other circumstances. 

4.4 Funding and Payment Transactions. Funding and Payment transactions are solely between Merchant and its Permitted Affiliates. Refersion is not a party to these transactions, as a custodian, escrow agent, fiduciary or otherwise.  The Funding Amounts are based on commissions for approved Transactions. The Funding Amounts will reflect transaction fees for the Pay Services and Refersion will be entitled to such fees in the amounts described in the Fee Schedule.  Merchant Unified Payments Wallets are funded once a month on the first Monday of each month. Merchant will receive notification of each Funding event in advance. Payment from the Merchant Unified Payments Wallets to Affiliate Unified Payment Wallets occurs on the second Tuesday of each month. Payment to Affiliate Unified Payment Wallets will only occur if Funding to the Merchant Unified Payments Wallet was successful. Permitted Affiliates will be notified of any delay in Payment caused by unsuccessful Funding of a Merchant’s Unified Payments Wallet. Merchant acknowledges that it is solely responsible for the data Merchant inputs or causes to be inputted into the Pay Services, including data inputted by Permitted Affiliates, and that Refersion conducts no independent verification of such data, including with respect to Merchant’s compliance with the terms of Merchant’s agreements with its Permitted Affiliates.  

4.5 Payment and Payout Disputes.  Neither Refersion nor any Payment Partner is obligated to resolve disputes between Merchant and Permitted Affiliates with respect to the transactions for which Payments or Payouts are initiated using the Pay Services. It is solely the responsibility of Merchant and its Permitted Affiliates to determine the rights, responsibilities and remedies regarding the transactions for which payments are initiated via the Pay Services, including but not limited to offer, acceptance, passing of title, examination of goods or any other matters related to the sale or lease of goods or services.  Merchant must fully exhaust all legal process and remedies in any dispute with a Permitted Affiliate prior to seeking any recourse against Refersion or any other party hereunder.  Notwithstanding the foregoing, Merchant agrees to provide Refersion or any of the applicable Payment Partners with any requested information regarding the status and/or resolution of any such dispute regarding Funding, Payments or Payouts.

4.6 Independent, Direct Relationships.   Merchant acknowledges and agrees that, by using the Pay Services, it has a separate commercial relationship with each of (a) Refersion, Inc., pursuant to these Terms, and (b) each Payment Partner (pursuant to the applicable Payment Partner Contracts entered into between such Payment Partner and Merchant related to the Pay Services). Merchant agrees that Refersion is not responsible for the Payment Partner’s performance under the Payment Partner Contracts.

4.7 Fee Schedule. Pay Services are available on all Refersion plans and there are no subscription fees. The Pay Service is subject to transaction fees of 1% (one percent) of the Funding amount on Funding, with a cap of $6.00 (six US dollars) per Funding transaction. The fee charged for insufficient funds in the Funding Account is $25.00 (twenty-five US dollars).  The Insufficient Funds Deposit is $25.00 (twenty-five US dollars).  

4.8 Fee Increases. The fees for the Pay Services are as outlined in the above Fee Schedule and may be updated from time to time.  Additionally, from time to time, the Payment Partner may adjust the fees applicable to Refersion for the Pay Services, including due to increases in its own third-party costs.  In the event of such fee increases, Refersion may determine, in its sole discretion, that it is appropriate to adjust the fees for the Pay Services.  Refersion will use commercially reasonable efforts to advise the Merchant in advance of any such fee increases, with as much notice as is reasonably practicable.

4.9  Onboarding. In general, Merchant must configure the Pay Services in accordance with the Payment Partner’s onboarding processes.  The following description summarizes certain aspects of the onboarding process, but is qualified in its entirety by the Payment Partner’s onboarding process and requirements and the applicable Payment Partner Contracts.

  1. Configuring Accounts. Merchant agrees to provide the Payment Partner all required information to enable the Merchant’s use of the Funding Account and the Payment Partner Services. When Merchant provides Funding Account information to the applicable Payment Partner through the Pay Services, Merchant authorizes the initiation of ACH debits, as applicable, from the Funding Account in accordance with these Terms, and, if necessary, the initiation of adjustments for any transactions debited or credited in error. 
  2. Information Provided to Payment Partner.  When Merchant registers with the Payment Partner, such Payment Partner may ask for information about Merchant’s business, including but not limited to: business name, address, phone number, email address, tax identification number, website address, business model, and any supporting documentation that such Payment Partner deems necessary in its reasonable discretion (such as copies of government-issued identification, proof of licensing, proof of financial condition, business policies, and other business or identification documentation).  Payment Partner may also ask Merchant for information about such Merchant’s beneficial owner(s), controller, and authorized representative, including but not limited to: name, date of birth, tax identification number or equivalent, and any supporting documentation that Payment Partner deems necessary in its reasonable discretion. Merchant acknowledges and agrees that such information may be shared by Payment Partner with its applicable Payment Partner Providers in order to provide the Payment Partner Services as described herein. Merchant’s ability to use the Pay Services is subject to the satisfactory review of the provided information by the Payment Partner and such Payment Partner’s approval. Merchant represents and warrants that any information that Merchant provides to the Payment Partner or to Refersion about Merchant’s business and beneficial owner(s) is accurate and complete and that Merchant will keep this information up to date at all times. Failure to do so may result in termination of the Pay Services and the Agreement.
  3. Accuracy of Information.  Merchant is solely responsible for providing accurate and complete data as required or requested by Refersion or any Payment Partner for purposes of providing the Pay Services. 

4.10  Transactions with the Funding Account and Establishment of Merchant Unified Payments Wallet. Merchant agrees that Refersion may submit instructions to Payment Partner to charge the Funding Account and initiate debit and credit entries from the Funding Account through the Automated Clearing House (“ACH”) transfers for the purposes of Funding the Merchant Unified Payments Wallet from the Funding Account in respect of applicable Permitted Affiliate transactions; performing Pay Services; charging the Insufficient Funds Deposit and collecting any fees relating to insufficient funds problems with the Funding Account; charging any other applicable fees for the Pay Services as described in the Fee Schedule; and for any other reasons as provided in these Terms. Notwithstanding the foregoing, Refersion provides solely information to the Payment Partner in accordance with these Terms and the Payment Partner, either directly or through the Payment Partner Providers, is the entity which receives instructions and controls the Unified Payments Wallets and the flow of funds from the Funding Account.  A Merchant Unified Payments Wallet is created upon initial acceptance of these Terms by the Merchant and enabled for use upon approval of a Merchant’s application with the Payment Partner. If Merchant believes the Pay Services amount debited an improper amount (i.e., one inconsistent with these Terms and Merchant’s configuration of the Refersion Dashboard) or has other good cause to seek the return of a debited amount, Merchant must contact Refersion via the Refersion Dashboard’s customer service contact methods or [email protected].  Refersion will consider all such requests in a timely manner on a case-by-case basis, provided that such requests must be received within five (5) calendar days of such Funding.  Refersion may charge its fees during the Term regardless of whether the Pay Services were used during the billing cycle to the extent applicable.  For the avoidance of doubt, to the extent that Refersion submits instructions to the Payment Partner, it is doing so solely on behalf of the Merchant.

4.11 Refused and Delayed Payments.  Merchants are solely responsible for ensuring that the Funding Account has sufficient funds available for any Funding transaction.  Additionally, any Payment Partner may refuse to initiate a Funding transaction or Payment (and subsequent Payout) in its reasonable discretion. Refersion will use commercially reasonable efforts to provide notice promptly if Payment Partner decides to refuse to such transactions.  In addition, any Payment Partner may delay any transaction in its sole discretion for any of the following reasons:

  1. based on Merchant’s perceived risk and history with Refersion or such Payment Partner;
  2. as required by law or court order;
  3. during investigation and resolution of any dispute related to Merchant’s account with Refersion;
  4. to secure the performance of Merchant’s payment obligations under this Agreement; and/or
  5. as otherwise permitted under this Agreement or applicable law.

4.12  Collection, Merchant agrees to pay all amounts owed to Refersion under these Terms on demand. Merchant’s failure to pay amounts owed to Refersion under these Terms is a breach, and Merchant will be liable for any costs Refersion incurs during collection in addition to the amount Merchant owes. Collection costs may include attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, any applicable interest, and any other related costs. 

4.13 Routine Business Operation Reviews.  The Payment Partner may request, and Merchant agrees to provide, information about the Merchant’s business, operations, funds flows, and/or integration with the Pay Services. Refersion and the Payment Partner each independently reserves the right to reassess the eligibility of the Merchant for the Pay Services at any time. Refersion or the Payment Partner, at their respective individual discretion, may immediately suspend or terminate the provision of any of the Pay Services, including in the event that either Refersion or the Payment Partner determines, in their respective sole discretion, and based on any of the review processes described in these Terms, that Merchant has become ineligible for any of the Pay Services.  

5. TAX SERVICES. 

5.1 Generally.  The Pay Services automatically generate and file IRS Forms 1099 based on the tax data supplied by Permitted Affiliates through IRS Forms W-9 or W-8 Series.

5.2 Scope of Refersion’s role.  It is solely Merchant’s responsibility to determine if the tax services included with the Pay Services will meet Merchant’s own internal, legal and regulatory requirements related to meeting its tax-related obligations.  Any portion of the Pay Services related to the creation and processing of tax forms, processing or submission of tax forms to applicable tax authorities or the provision of any tax intermediary-related services (the “Tax Partner Services”) are provided by applicable Payment Partners, and not by Refersion.  As part of the Tax Partner Services, Payment Partner may be under legal or regulatory obligations to maintain documentation actually filed with taxing authorities for a period of time that may outlast Merchant’s use of the Pay Services, the Services in general, or any contractual relationship between Merchant and Refersion.  Merchant acknowledges and understands that the terms under which it obtains the Tax Partner Services from Payment Partner are contained in applicable Payment Partner Contracts.  To further clarify, the Pay Services do not include tax advice, tax form preparation and submission or the storage of any information contained in tax forms or on a Tax Partner’s platform.  Therefore, Refersion shall not be liable to Merchant with respect to any and all costs, liabilities or damages arising or resulting from Tax Partner Services. 

5.3 Onboarding.  Merchant must configure the Tax Partner Services in accordance with the Payment Partner’s onboarding processes.  The specific onboarding requirements are determined solely by the Payment Partner, but generally involve the submission of information necessary to create tax forms applicable to Merchant based on its legal status under applicable law. Payment Partner shares information provided to it about the Merchant and associated directors with Refersion as part of the Pay Services, including names, addresses, phone numbers, email addresses, incorporation information and employer identification numbers.  However, information shared with Refersion does not include social security numbers of any individuals.

5.4 Withholding. The Pay Services do not currently support tax withholding.

5.5 Ongoing Responsibilities.  It is Merchant’s sole responsibility to determine what, if any, taxes apply to Funding and Payments, and to collect, report and remit the correct tax to the appropriate tax authority. Merchant will be solely responsible for contingencies and maintaining required reserves for the collection, reporting and remitting the correct tax. Refersion is not a tax or legal advisor and is not responsible for determining whether taxes apply to Funding or Payments and at what rate, or for collecting, reporting or remitting any taxes other than as authorized by Merchant hereby.

5.6 No Liability for Delays; Inaccuracies.  Refersion is not liable for any delays or inaccuracies resulting from actions or omissions of Payment Partner or Merchant, that may result in late payments or failed payments of taxes.  Merchant, and not Refersion, is solely liable for any penalties, fines, interest or any other charges imposed on Merchant by the IRS or any other applicable taxing authority.  Merchant acknowledges that Refersion does not independently verify and is not responsible for the accuracy of the tax forms or tax data supplied by Permitted Affiliates. 

6. MERCHANT REPRESENTATIONS AND WARRANTIES.  

6.1 Merchant represents and warrants, on an ongoing basis, that:

  1.  it is responsible for all activity occurring under Merchant’s account;
  2.  all information and documentation it provides in connection with its use of the Pay Services (including that of its Permitted Affiliates) are accurate, up-to-date and truthful;
  3.  it is, on an ongoing basis, reviewing all information relating to conversions, Transactions, Funding and Payments provided in the Refersion Dashboard and all emails pertaining to the Pay Services;
  4. it will abide by all applicable U.S. local, state, and federal laws and regulations and international treaties in connection with Merchant’s use of Pay Services, including, without limitation, those related to financial transactions, money laundering, trade and other sanctions, export controls, data privacy, communications, export or import of data and the transmission of technical, personal or other data;
  5. it is Merchant’s sole responsibility to ensure that any and all authorizations, approvals, transaction data or other information required to enable Merchant to use, and to continue to use, the Pay Services shall be true, correct and complete in all respects. Such information shall include but is not limited to account information or any other information relating to Payments or Funding; and
  6.  that any persons who use, set up, formulate or make any updates to settings and configurations in its account with Refersion are duly authorized by Merchant to perform such duties (each, an “Authorized Person”). Merchant must promptly notify Refersion and the Payment Partner of any changes with respect to the persons who are Authorized Persons, including but not limited to any such changes which would result in Merchant’s breach or alleged breach of any term, covenant, condition, representation, warranty or agreement with Refersion or any agreement related to the Pay Services. For any actions taken by individuals using Merchant’s login credentials, Merchant agrees that Refersion is entitled to rely on Merchant’s representation that such individuals are Authorized Persons.

6.2 Merchant will:

  1.  notify Refersion immediately of any unauthorized use of any password or account or any other known or suspected breach of security, via email to [email protected];
  2.  report to Refersion any conduct by Permitted Affiliates that is known or suspected by Merchant of being fraudulent or unlawful; and
  3.  review and approve all reports relating to Pay Services generated by Refersion.

6.3 Merchant acknowledges and agrees that Merchant is prohibited from:

  1. using the Pay Services for any fraudulent, unlawful, deceptive, or abusive purposes;
  2. using the Pay Services in any manner intended to harm a Permitted Affiliate, another Merchant, a Payment Partner, Refersion, or any third party;
  3. circumventing any intended limitations for any feature of the Pay Services as communicated by the Payment Partner or Refersion; 
  4. using the Pay Services in a manner inconsistent with any developer documentation, integration guidance, or other technical, policy, or other requirements communicated by Refersion or a Payment Partner, whether on the website of Refersion or a Payment Partner, as applicable, each as may be updated from time to time; 
  5. using the Pay Services in violation of any guidance regarding restricted activities communicated by Refersion or a Payment Partner, whether on the website of Refersion or a Payment Partner, as applicable, each as may be updated from time to time; 
  6. using the Pay Services to conduct transactions for personal, family, or household purposes; 
  7. replicating and/or reselling the Pay Services by offering and/or enabling any third party to access the Pay Services through the Refersion Dashboard or otherwise;
  8. making available or using the Pay Service for the benefit of any country, organization, entity, or person embargoed or blocked by any government, including those on the sanctions lists maintained by the U.S. Office of Foreign Asset Control; 
  9. engaging in transactions related to or in furtherance of the following activities:
    1. sale or purchase of illegal goods, including but not limited to stolen goods, illegal or controlled substances, and substances that pose a risk to consumer safety;
    2. marijuana-related businesses (including but not limited to manufacturers, dispensaries, and those engaged in the business of marketing, buying, growing, selling, or otherwise promoting medical or recreational marijuana);
    3. illegal services, including but not limited to counterfeit services, illegal gambling, Ponzi or pyramid schemes, and money laundering;
    4. adult entertainment, including but not limited to escort services, encounter clubs, and pornographic products and services;
    5. debt collection, relief, or counseling;
    6. gun sellers and firearm or ammunition sales;
    7. unlicensed or unregistered Money Services Businesses, as that term is defined at 31 C.F.R. 1010.100(ff) and under corresponding state regulations;
    8. white-label ATM services; 
    9. promotion of hate, violence, harassment, or abuse; or 
    10. attempting any of the foregoing.

7. MERCHANT DATA.    

7.1 Refersion does not own any data, information or material that Merchant submits to or inputs to Refersion in the course of using Pay Services (“Merchant Data”); provided, however, that Refersion may anonymize and aggregate Merchant Data and use the resulting information for any purpose consistent with the General TOS.  For the avoidance of doubt, Refersion does not store Merchant’s full Funding Account number, any other permanently identifying or access-enabling data, such as a routing number or account credential with a financial institution.  Refersion may, however, receive excerpts of Funding Account or Payment Account numbers (generally, the last four (4) digits) or the names of financial institutions associated with such Funding Accounts or Payment Accounts solely for purposes of providing the Pay Services (such as verifying Merchant’s information during support inquiries). 

7.2 Merchant, not Refersion, shall have sole responsibility for the accuracy and intellectual property ownership or right to use of all Merchant Data, and, to the extent permitted by applicable law, Refersion shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of any Merchant Data by Refersion, the Merchant or otherwise. While these Terms are in effect, Merchant grants Refersion the right to use tax forms, tax documentation and related data pertaining to payments made by Merchant to its Permitted Affiliates for any legal compliance purpose. 

7.3 Upon termination, Refersion and the Payment Partner may retain Merchant Data for any legal purpose, including as required by the Payment Partner Contracts, applicable law, the General TOS or the Refersion Privacy Policy.

8. TERM AND TERMINATION.

Merchant may only use the Pay Services for so long as it is a customer of Refersion for Services covered by the General TOS.  Notwithstanding the foregoing, either party may terminate the Pay Services (separately from the Services covered by the General TOS) (a) for cause, if the other party fails to cure any material breach of these Terms within thirty (30) days after written notice of such breach; (b) if the other party ceases operation without a successor or (c) if the other party seeks protection under any bankruptcy, receivership or comparable proceeding or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter.  Notwithstanding the foregoing, Refersion may, at any time, immediately suspend the Pay Services (x) in the event that the Payment Partner requests such suspension due to a breach of its respective Payment Partner Contracts, (y) in the event of any breach of the representations and warranties set forth in Section 6 hereof or (z) for any reason in Refersion’s sole discretion. 

Sections 7 through 19 hereof shall survive any expiration or termination of these Terms.

9. LIMITED WARRANTY.

Refersion will use commercially reasonable efforts to instruct the Payment Partner to make all Funding transactions and Payments in accordance with these Terms and the General TOS. If the Services authorize or effectuate payments that differ from the amounts or recipients stated in the Refersion Dashboard (an “Error”), Refersion shall use commercially reasonable efforts to work with the Payment Partner to correct the Error (as deemed appropriate by such Payment Partner), provided that the Payment reflected a conversion approved by Merchant correctly and in accordance with the Terms and the General TOS.

Notwithstanding the foregoing, Refersion has no liability for any Error resulting from any of the following circumstances:

  1. insufficient funds in the Funding Account;
  2. ACH Network or other payment processing center downtime or error;
  3. actions and omissions of the Payment Partner; or
  4. inaccurate, incomplete or out-of-date Funding Account information, tax information (whether of Merchant or any applicable Permitted Affiliate) or Merchant’s Funding instructions or settings. 

In the event of an Error, Merchant must notify Refersion support as soon as Merchant learns of the Error (and in no event later than thirty (30) days after the Error). Merchant must cooperate fully with Refersion’s remediation efforts, including by contacting the Permitted Affiliate, contacting Merchant’s bank, contacting the Permitted Affiliate’s bank, making information or funds available, executing all documents and taking all other actions reasonably requested to correct or mitigate the Error.  

THE FOREGOING SETS FORTH THE SOLE AND EXCLUSIVE REMEDY AND REFERSION’S FULL AND EXCLUSIVE OBLIGATION WITH RESPECT TO ANY BREACH OF THIS LIMITED WARRANTY.

10. WARRANTY DISCLAIMERS.

EXCEPT AS PROVIDED IN THIS AGREEMENT, REFERSION MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTIES WITH RESPECT TO THE PAY SERVICES, OR ANY OTHER SERVICES OR PRODUCTS PROVIDED HEREUNDER. REFERSION DOES NOT REPRESENT OR WARRANT THAT:

  1. THE USE OF PAY SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA,
  2. THE PAY SERVICES WILL MEET MERCHANT’S REQUIREMENTS OR EXPECTATIONS,
  3. ANY STORED DATA WILL BE ACCURATE OR RELIABLE, OR
  4. THE PAY SERVICES WILL BE AVAILABLE AT ALL TIMES, ERROR-FREE OR DEFECT-FREE OR THAT ANY SUCH ERRORS OR DEFECTS WILL BE CORRECTED. 

THE PAY SERVICES ARE PROVIDED TO MERCHANT STRICTLY ON AN “AS IS” BASIS. REFERSION DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. REFERSION’S PAY SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. REFERSION IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

11. INDEMNIFICATION.

In addition to any indemnification provided for in the Agreement or any Payment Partner Contracts, Merchant agrees to defend, indemnify and hold harmless Refersion and its respective officers, directors, shareholders, agents, employees, licensors and suppliers from any third-party claims, actions, proceedings, and suits and related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and litigation costs) arising from:

Merchant’s violation of the Terms, the Payment Partner Contracts or any other applicable terms or policies of Refersion or its Payment Partner; Permitted Affiliate’s claims with respect to Payouts; Merchant’s use of Pay Services; Merchant’s negligence, gross negligence, fraud or willful misconduct; and/or Merchant’s actual or alleged violation of any third-party rights, or any applicable laws, regulations or rules.  

12. LIMITATION OF LIABILITY.  

12.1 Dollar Cap.  EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (INCLUDING THE SERVICES (AS GOVERNED BY THE GENERAL TOS) AND THE PAY SERVICES) WILL NOT EXCEED THE GREATER OF (A) $1,000; OR (B) THE FEES ACTUALLY PAID BY MERCHANT TO REFERSION FOR THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE FIRST EVENT GIVING RISE TO LIABILITY AROSE.  FOR THE AVOIDANCE OF DOUBT, THE FEES SHALL NOT BE DEEMED TO INCLUDE THE AMOUNT OF ANY FUNDING HEREUNDER.

12.2 Exclusion of Consequential Damages.  IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT.

12.3 Clarifications and Disclaimers.  The limits in this Section 12 apply: (i) to liability for negligence; (ii) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (iii) regardless of the foreseeability of the damages or any advance notice of their possibility; and (iv) even if these remedies fail of their essential purpose.  If applicable law limits the application of the provisions of this Section 12, liability will be limited to the maximum extent permissible.  

13. DISPUTES.

These Terms are governed solely by the internal laws of the State of California, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws.  The parties consent to the personal and exclusive jurisdiction of the federal and state courts of the city and county of San Francisco, California.

14. E-MAIL NOTIFICATIONS.

The Merchant must consent to receiving e-mail notifications as a reminder that certain payments are due or to be paid with respect to Pay Services. Such e-mail notifications will include a link to the Refersion Dashboard. The Merchant may not opt out of such e-mail notifications, as such e-mail notifications are required for the proper functioning of the Pay Services.  

15. MODIFICATIONS.

Refersion may make commercially reasonable changes to the Pay Services from time to time.  Refersion will inform Merchant if Refersion makes a material change to the Pay Services that has a material, adverse impact on the Merchant’s use of the Pay Services.  Refersion may also change these Terms from time to time and will post any changes to the URL where these Terms are available and update the “Last Updated” date at the top of these Terms.  Any material changes will only take effect as of (i) Merchant’s next term as specified in the Order Form or (ii) the “Last Updated” date above if no Order Form specifying a term is in effect.  Merchant’s continued use of the Pay Services after such changes take effect will constitute its acceptance of the changes.

16. ADDITIONAL DOCUMENTATION.  Merchant must execute and deliver any such additional documents, instruments, conveyances, and assurances and take such further actions as may be required to carry out the provisions hereof and give effect to the transactions contemplated hereby.

17. SEVERABILITY.   If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction it shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

18. INDEPENDENT AUTHORITY.   Nothing herein shall be construed to create a joint venture or partnership between the parties hereto or an employer/employee or agency relationship. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party. Nothing in these Terms shall be deemed or construed to enlarge the fiduciary duties and responsibilities, if any, of Refersion or any of its affiliated entities.

19. CONTACT. In addition to the contact information provided above and in the Agreement, Merchant may contact Refersion with any Unified Payment related issues or questions by contacting Refersion at [email protected].