DEVPAY PAYMENT PROCESSING AGREEMENT
Updated December 18, 2007
BY REGISTERING FOR OR USING THE DEVPAY PAYMENT PROCESSING SERVICE OR ACCEPTING ANY MODIFICATION TO THIS AGREEMENT IN ACCORDANCE WITH SECTION 13.2 BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (INCLUDING ALL POLICIES), EACH AS MAY BE MODIFIED FROM TIME TO TIME. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE OR ACCESS THE SERVICE.
This DevPay Payment Processing Agreement (the “Agreement”) is an agreement between you and Amazon Payments, Inc., (“we” or “us”) and applies to payments that we process (the “Service”) in connection with your sale of access to certain Internet-based applications (your “Subscriptions”) using the Amazon DevPay Service provided by Amazon Web Services LLC (“AWS”). In addition to the terms of this Agreement, you agree to the terms of the policies, notices, procedures, guides and guidelines that are provided to you, posted on the Amazon DevPay Service area of the AWS web site (the “Site”) located at aws.amazon.com (or any successor thereto) or are referenced in this Agreement (collectively, the “Policies”), including the Amazon Web Services Customer Agreement located on the Site.
This Agreement explains our and your respective legal rights and obligations concerning all aspects of our relationship, including without limitation our processing of payments for you, your account balances, transaction limits and other account restrictions, and your consent to receive electronic notices.
1. Registration
1.1 Eligibility. To use the Service, you must (a) reside or be authorized to do business in the United States, (b) create a payments account with us (a “Payment Account“) by providing complete and accurate registration information, and (c) and have a valid and current Amazon Web Services developer account (an “AWS Account“) pursuant to AWS Customer Agreement. We treat all activities under a Payment Account to be those of the registered user. You must update the profile for your Payment Account promptly upon any change. We reserve the right to refuse to provide or discontinue the Service to you for any reason.
1.2 Verification. We may require you to provide additional registration information to verify your identity as a condition of providing the Service to you. Such information may include your employer verification number (EIN), valid U.S. credit card, a verified bank account, or other financial or personal information. We may make, directly or through third parties, any inquiries we consider necessary to validate information that you provide to us. You authorize us to obtain one or more of your business or consumer credit reports, from time to time, to establish, update, or renew your Payment Account with us or in the event of a dispute relating to this Agreement or activity under your Payment Account. We may require evidence of your identity before permitting you to receive or withdraw funds from your Payment Account.
1.3 Your Electronic Address. Your email address and a password that you select will be used to access the Site or use our Service. During registration, you also may be prompted to answer several security questions or choose a personal identification number (“PIN“) that may be used to access the Service and authorize transactions. You are solely responsible for maintaining the secrecy and security of your password or PIN and for any use of or action taken under your password or PIN. You should not disclose your password or PIN to any third party (other than third parties authorized by you to use your account). If your password or PIN is compromised, you must change your password or PIN immediately and notify us to avoid unauthorized use of your Payment Account.
1.4 Electronic Notices. We communicate with you via your registered e-mail address. By registering for the Service and accepting the terms of this Agreement, you affirmatively consent to receive notices electronically from us. You agree that we may provide all communications and transactions related to the Service and your Payment Account, including without limitation agreements related to the Service, amendments or changes to such agreements or any Policies, disclosures, notices, transaction information, statements, responses to claims and other customer communications that we may be required to provide to you by law (collectively, “Communications“), in electronic format. All Communications will be sent either (a) via e-mail, (b) by providing access to a web site that we designate, or (c) via access to the Site. All Communications will be deemed to be in “writing” and received or accessed by you. You are responsible for creating and maintaining your own records of such Communications.
2. Your Payment Account
2.1 Our Role. The Service allows you to accept payments from customers who have purchased access to your Subscription(s) (“End Users“). We are not a bank and do not offer banking services. Except for our limited role in processing payments, we are not involved in any underlying transaction between you and any other person. We take no responsibility for the quality, fitness, safety, reliability, legality of any Subscription. We do not guaranty payment on behalf of any End User. You acknowledge that (a) we are acting on your behalf solely to process, administer and maintain funds as part of the Payment Account, (b) we may use the services of one or more third party processors and/or financial institutions to provide the Service and process your transactions (each a “Processor“), and (c) no partnership, joint venture, employee-employer, franchisee-franchiser, creditor-debtor, escrow, or other fiduciary relationship is intended or created by the establishment of the Payment Account or this Agreement. We are not your agent in connection with any transaction conducted by you regarding your Subscription(s), and we have no liability for, or relationship to, such transaction.
2.2 Your Account Balances. We will hold money that you collect from users of your Subscription in your Payment Account (your “Balance“). When you carry a Balance, your funds will be co-mingled and held with other participants’ funds in one or more pooled accounts at one or more FDIC-insured banks by us on your behalf and for the benefit of you and other participants holding balances (each a “Pooled Account“). U.S. dollar balances held in the Pooled Account are eligible for FDIC pass-through insurance, meaning that your Balance may be FDIC insured up to $100,000 (or such other amount as determined by applicable law). We have sole discretion over the establishment and maintenance of any Pooled Account. We will hold the funds associated with your Payment Account separate from our corporate funds, will not use your funds for our corporate purposes (including without limitation the granting of any security or similar interest), will not voluntarily make the funds available to our creditors in the event of bankruptcy, and will not knowingly permit our creditors to attach the funds. You will not receive interest or any other earnings on any funds that we handle for you. As partial consideration for using the Service, 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 Account (described in Section 2.3 below).
2.3 Reserve Account. We may require that you either maintain a minimum balance in your Payment Account or establish a separate reserve account (a “Reserve Account“) to secure the performance of your obligations under this Agreement. Without limiting the foregoing, we may require a Reserve Account in the event of a Chargeback or if you have a high rate of Chargebacks (described in Section 5), refunds, or complaints from End Users. We may fund the Reserve Account through any or all of the following, in each case, at such times and in such amounts as determined by us to be sufficient to secure your obligations under this Agreement: (a) funds deposited by you at our reasonable request; (b) funds due to you; or (c) at your election, funds withdrawn by us from any Bank Account (defined Section 3.2 below) or account designated by you. You hereby (i) grant us a security interest in and lien on any and all funds held in any Reserve Account, and (ii) authorize us to make any withdrawals or debits from the Reserve Account, without prior notice to you, to collect amounts that you owe us or other users under this Agreement, including without limitation for any reversals of deposits or transfers made to your Payment Account. You agree to execute any additional documentation required for us to perfect our security interest in any funds in the Reserve Account. This security interest survives for as long as we hold funds in your Reserve Account.
2.4 Dormant Accounts. If there is no activity in your Payment Account (including without limitation access or payment transactions) for at least two (2) years and six (6) months, consecutively, and you are currently holding a Balance, we will notify you by sending an e-mail to your registered e-mail address and give you the option of keeping your Payment Account open and maintaining the Balance, withdrawing the Balance, or converting your Balance to a gift certificate held in your Amazon gift certificate account on the Amazon.com web site. If you do not respond to our notice within thirty (30) days, we will automatically close your Payment Account and convert your Balance to a gift certificate balance.
2.5 Acceptable Use. You will all times adhere to all applicable laws, rules, and regulations applicable to your use of the Service, including, without limitation, any acceptable use policies applicable to the Service. Without limiting the foregoing, you may not act as a payment intermediary, aggregator or service bureau or otherwise resell the Service on behalf of any third party, including without limitation the handling, processing, and transmission of funds for any third party. We may inspect your Payment Account for any reason, including without limitation to investigate any alleged violation of this Agreement, our Policies or any third-party complaints. In the event that we determine, in our sole discretion, that your conduct or actions (including, without limitation, your employees) are objectionable, unlawful, potentially infringing, or otherwise in violation of this Agreement or our Policies, we may take any action that we deem appropriate and reasonable to protect our systems, facilities, users, or third parties. Such corrective action includes, but is not limited to: (a) issuing a warning; (b) immediately suspending or terminating the Service; and (c) restricting or prohibiting access to your Payment Account. Subject to applicable law, we may access, use, and disclose transaction information about your use of our Service or your Payment Account (including without limitation any transfers to your Payment Account) to: (1) comply with law (e.g., a lawful subpoena); (2) to enforce or apply our agreements with you; (3) initiate, render, bill, and collect for our Service; (4) protect our rights or property; or (5) protect users of our Service from fraudulent, abusive, or unlawful use of our Service.
3. Your Payment Transactions
3.1 Your Subscriptions. We will process payments by End Users using the Service for the use of your Subscription(s), including one time uses and recurring uses. After confirming payment, we will notify AWS who will issue an access key to an End User for each Subscription. If we cannot process a payment from an End User or a payment is reversed, AWS may suspend or terminate the key and any continued access to your Subscription by the End User. End Users will be permitted to cancel Subscriptions at any time through the Service. You may cancel an End User’s Subscription through AWS by following AWS’ cancellation instructions. We will not be responsible to you for any payments incurred or requested after an End User cancels his Subscription or otherwise fails to pay. In the event that either you or an End User cancels a Subscription, we will issue a prorated refund of any current monthly recurring charges that have already been billed.
3.2 Authorization. By registering for the Service, you authorize us to hold, receive, and disburse funds on your behalf in accordance with your payment instructions (subject to the terms of this Agreement, the AWS Customer Agreement and the Policies). To process payment transactions that you authorize, we (or third parties acting on our behalf) may debit or credit (as appropriate) your Balance, or the U.S. checking or other ACH-enabled bank account that you registered with us (your “Bank Account“). If there is an error in the processing of any transaction described above, you authorize us to initiate debit or credit entries to your Balance or Bank Account, as applicable, to correct such error, provided that any such correction is made in accordance with applicable laws and regulations. If we are unable to debit the Bank Account you select for any reason, you authorize us to resubmit the debit, plus any applicable fees, to any other Bank Account or payment instrument that you have on file with us. Your authorizations will remain in full force and effect while you maintain your Payment Account with us and for any Bank Account listed.
3.3 Availability of Funds. Funds for any given transaction will not be available until the transaction is deemed complete. As applicable, transactions will be deemed complete when the funds are received by us, including in the Pooled Account. Funds in your Account may be withdrawn only by direct deposit via ACH to your Bank Account. You must have a Bank Account to withdraw funds paid to you using the Service. We may restrict access to funds in your Payment Account for the time that it takes for us to complete any pending investigation or resolve a pending dispute or as required by law or court order or if otherwise requested by law enforcement or any governmental entity.
3.4 Records. 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 Payment Account and your use of the Service, and (b) reconciling all payment activity to and from your Payment Account and all other transactional information that is associated with your Payment Account. Upon the termination of this Agreement for any reason, we will have no obligation to you to store, retain, report, or otherwise provide any copies of, or access to, any records, documentation or other information in connection with any transactions submitted by you through the Service.
3.5 Buyer Disputes. You agree to cooperate with us to resolve complaints from End Users. You will respond to our inquiries and deliver to us any information reasonably requested by us regarding any disputed transactions within ten (10) business days of our request. If an End User files a complaint, we may place the disputed amount on hold and you will not be able to withdraw the amount until the complaint is resolved. We may transfer the disputed amount to the End User as a Chargeback to you (as described in Section 5 below) if you fail to timely respond to a complaint or fail to honor any agreement for the resolution of a complaint. If a dispute arises between you and an End User, you release us (and our agents and employees) from any and all claims, demands, and any damages (actual and consequential) in any way connected with the dispute and the transaction. We have no obligation to, and cannot guarantee, we will resolve any disputes related to any transaction.
4. Receiving Credit Card Payments
4.1 Scope. The Service may receive payments funded with credit cards that we accept (“Cards“), including without limitation cards that bear a logo of MasterCard, Visa, and other payment card associations (the “Associations“). If your transaction volume exceeds $20,000 per month for three consecutive months, the Associations and our Processor(s) require that you agree to the Credit Card Association Agreement below between you and the Processor(s).
4.2 Compliance with Rules. You will comply with (a) our credit card processing policies, procedures, and instructions as published on our Site or provided to you from time to time; and (b) all applicable state, federal, and local laws, rules, and regulations. As a condition of accepting Cards using the Service, the Associations require that you agree to follow all applicable rules and regulations of the Associations, as such rules and regulations may be amended from time to time, that are provided to you or are generally available to the public (including merchant rules posted on usa.visa.com and www.mastercard.com) (“Association Rules“).
4.3 Accepted Cards. We may remove or add Cards that we accept at anytime without prior notice. Association Rules require that you will not (a) establish limits below which you will not accept a Card, (b) assess a surcharge for the use of a Card in connection with any transaction, or (c) dispense cash on any Card transaction. We will only process Cards that receive an authorization from the applicable Association or card issuer. An authorization does not guarantee that such transaction will be collectible or that the cardholder is actually authorized to use the Card or that the transaction will not be subject to Chargeback (described in Section 5 below).
4.4 Refunds and Adjustments. Association Rules require that you will (a) maintain a fair policy for the return or cancellation of merchandise or services and adjustment of Card sales, (b) disclose your return or cancellation policy to your customers at the time of purchase, (c) not give cash refunds to a customer in connection with a Card sale, unless required by law, and (d) not accept cash or any other consideration for preparing a refund to be deposited to a customer’s account in connection with a Card sale. The amount of the refund or adjustment cannot exceed the amount shown as the total for original transaction. Documentation is not necessary if you exchange goods or services of an equal value to the original transaction. If the exchange is not equal, you will complete a credit for the total amount of the merchandise or services being returned and complete a new transaction for any new merchandise or services purchased. Please be aware, if your refund policy prohibits returns under certain circumstances, you may still receive a Chargeback relating to such sales.
5. Transaction Reversals and Chargebacks
5.1 General. The amount of a transaction may be charged back or reversed to your Payment Account (a “Chargeback“) if the transaction (a) is disputed by the account holder, (b) is reversed for any reason by the Association or End User’s 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 the terms of this Agreement (including any Policy).
5.2 Collection Rights. For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve Account. We may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by the Association, our Processor, or processing financial institutions from your Payment Account (including without limitation any Reserve Account), any proceeds due to you, your Bank Account, or other payment instrument registered with us. If you have pending or anticipated Chargebacks, we may block withdrawals or outgoing payments made from your Payment Account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction submitted by or authorized by you or on your behalf, we may withhold from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to an End User’s complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which the End User 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 collect the Chargeback, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all account deficit balances unpaid by you.
5.3 Excessive Chargebacks. If we determine that you are incurring an excessive amount of Chargebacks, we may establish controls or conditions governing your Payment Account, including without limitation, by (a) establishing new processing fees, (b) creating a Reserve Account in an amount determined by us to cover anticipated Chargebacks and related fees, (c) limiting withdrawals, and (d) terminating or suspending the Service.
5.4 Contesting Chargebacks. You agree to assist us when requested, at your expense, to investigate any transaction processed through the Service. For Chargebacks associated with Cards, we will work with you to contest the chargeback with the Association or issuing banks should you choose to contest the Chargeback. We will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, we will release the reserved funds to your Amazon Payments Account. If a Chargeback is not successfully contested or you choose not to contest the Chargeback, we may recover the Chargeback amount as described in this Agreement. You acknowledge that your failure to timely assist us in investigating a transaction, including without limitation providing necessary documentation within seven (7) days of our request, may result in an irreversible Chargeback.
6. Payment Terms.
6.1 Fees. You will pay to AWS the applicable fees specified in the AWS Customer Agreement and the Site (“Fees“) whenever you use the Amazon DevPay Service. Such fees are inclusive of any payment processing fees associated with our Service under this Agreement. All Balances and all fees, charges, and payments collected or paid through the Service are denominated in U.S. currency.
6.2 Set-off Rights. To the extent permitted by law, we may set off against the Balances or debit your Bank Account or other payment instrument in your Payment Account for any obligation you owe us under this Agreement, including without limitation any Chargebacks. All Fees are charged at the time we process a transaction and are deducted first from the transferred or collected funds and thereafter from the Balance in your Payment Account. If you owe us an amount that exceeds your Balance, we may charge or debit a payment instrument registered in your Payment Account. Your failure to fully pay amounts that you owe us will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount collected, including without limitation attorneys’ fees, court costs, collection agency fees, and any applicable interest.
6.3 Taxes. You are responsible for determining any and all taxes and duties, including without limitation, sales, use, transfer, value added, withholding, and other taxes and/or duties assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with any request for or performance of the Service, your use of the Site, the use of Subscriptions and related payment, or otherwise in connection with any action, inaction, or omission by you or any affiliate of yours, or any of your or their respective employees, agents, contractors, or representatives (“Taxes“). You also are responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We and our Affiliates are not obligated to determine whether Taxes apply and are not responsible for collecting, reporting, or remitting any Taxes arising from any transaction.
7. Termination.
7.1 Your Rights. You may terminate this Agreement at any time by closing your Payment Account. Upon closure of a Payment Account, any pending transactions will be cancelled. Any funds that we are holding for you at the time of closure, less any applicable Fees, may be withdrawn assuming all withdrawal-related authentication requirements have been fulfilled (for example, you may not close your Payment Account as a means of evading withdrawal restrictions). If an investigation is pending at the time you close your Payment Account, we may hold your funds (as described further in Section 3.3). If we later determine that you are entitled to some or all of the funds in dispute, we will release those funds to you. You will remain liable for all obligations related to your Payment Account even after it is closed.
7.2 Suspension or Termination by Us. We may suspend or terminate the Service, for any reason at any time without prior notice to you. Termination of the Service will result in the closure of your Payment Account and termination of this Agreement. Without limiting the foregoing, we may suspend the Service and access to your Payment Account (including without limitation the funds in your Payment Account) if (a) you have violated the terms of this Agreement or Policy), (b) any transactions in your Payment Account are deemed to be suspicious, fraudulent, or unlawful, (c) you pose an unacceptable credit or fraud risk to us, (d) you provide false, incomplete, inaccurate, or misleading information (including without limitation any registration information) or otherwise engage in fraudulent or illegal conduct, or (e) we are unable to verify information that you provide to us or that we obtain from third parties. We will not be liable to you or any third party for any termination or suspension of the Service or access to your Payment Account.
7.3 Effect of Termination. In the event that the AWS Customer Agreement terminates, this agreement shall terminate. We will not be liable to you for compensation, reimbursement, or damages on account of the loss of profits, anticipated sales, goodwill, or on account of expenditures, investments, or commitments in connection with your use of the Service, or for any termination or suspension of the Service. Any termination of this Agreement does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement. In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following sections of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: 2.3 (with respect to any existing Reserve Account), 5.2, 6.2, 6.3, 7.3, and 8 through 13.
8. Privacy.
8.1 Our Privacy Notice. The collection, use, and disclosure of information associated with your and any End User’s use of the Service are disclosed in our Privacy Notice. We may share your contact information (e.g., name, address, e-mail address) with a third party in the event that we receive inquiries from End Users for a customer service purposes, regulatory or governmental agencies, or our Processors. You should review our Privacy Notice to understand how we handle any personal information associated with your Payment Account.
8.2 Purchase Data. In order to allow you to manage Subscriptions, we may provide to you certain information pertaining to End Users, including, the name, e-mail address and any other information that we make available to you (“Purchaser Data“). We own all Purchaser Data that we provide to you and you have limited rights to disclose and use Purchaser Data. Specifically, you will not directly or indirectly: (a) sell, barter, disclose, transfer, convey or make available any Purchaser Data (except you may disclose this information as necessary for you to perform your obligations under a Subscription or under this Agreement and provided that you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information); (b) use any Purchaser Data for any purpose, other than as is necessary to manage Subscriptions you sell through the Service, including, without limitation, marketing or promotional purposes; or (c) contact an End User that has ordered an Subscription that has not been delivered to the End User with the intent to collect any amounts in connection therewith, to influence such End User to make an alternative purchase, or to harass such End User. Without limiting the foregoing, (y) your use of Purchaser Data must comply with (i) all applicable laws, rules and regulations, and (ii) our Privacy Notice and your privacy policy, and (z) you will not, directly or indirectly, use any Purchaser Data in connection with the sending of (i) spam/unsolicited email including pyramid schemes or chain letters, or (ii) any e-mail in contravention of the CAN SPAM Act of 2003 or other applicable state or federal laws and regulations. Additionally, in communicating with any End User, you will not alter or obscure e-mail headers or assume the identity of a sender without the explicit permission of that sender. The terms of this Section 8.2 do not prevent you from using other information that you acquire without reference to Purchaser Data for any purpose, even if such information is identical to Purchaser Data, provided that you do not target communications on the basis of the intended recipient being an End User of any Service offered by us or AWS, including, without limitation, the Service.
9. Representations and Warranties.
9.1 By You. You represent and warrant to us that: (a) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement; (b) the name identified by you when you registered is your name or business name under which you provide Subscriptions; (c) any transaction submitted by you will represent a bona fide transaction as described on your website or Subscription; (d) any transactions submitted by you will accurately describe the Subscriptions that you sell to an End User; (e) you will fulfill all of your obligations to each End User for which you submit a transaction and will resolve any consumer dispute or complaint directly with the End User; (f) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business; (g) except in the ordinary course of business, no transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of you; and (h) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service.
9.2 Disclaimer. THE SITE AND SERVICE ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SITE, SERVICE OR AVAILABILITY OF ANY SUBSCRIPTION, INCLUDING WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS; (B) THAT THE SITE OR SERVICE WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, ACCURATE, UNINTERRUPTED, TIMELY, SECURE, OPERATE WITHOUT ERROR, OR WILL CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY; OR (C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR TRADE USAGE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US, OUR AFFILIATES OR AN AUTHORIZED REPRESENTATIVE OF US OR OUR AFFILIATES SHALL CREATE A WARRANTY.
10. Limitation of Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR AFFILIATES (AND OUR AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AGENTS, AND REPRESENTATIVES) WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE SERVICE (INCLUDING THE INABILITY TO USE THE SERVICE), ANY SUBSCRIPTION, OR ANY OTHER SERVICES OR GOODS PURCHASED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL AGGREGATE LIABILITY OF US OR OUR AFFILIATES (AND OUR AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AGENTS, AND REPRESENTATIVES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY), WARRANTY, OR OTHERWISE, EXCEED THE AMOUNT OF FEES THAT WE EARN IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY. In no event will we be liable to you for any failure or delay by us (or our employees, agents, or representatives) in performing our obligations under this Agreement, regardless of whether the failure or delay is caused by an event or condition beyond our control. The laws of certain states or other jurisdictions do not allow limitations on implied warranties, or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have rights in addition to those contained in this Agreement. Our liability is limited to the greatest extent permitted by law, as provided in Section 13.4 below.
11. Indemnity.
You will indemnify and hold harmless us and our Affiliates (and their respective employees, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, 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, including without limitation any violation of our Policies or Association Rules; (b) your wrongful or improper use of the Service; (c) your failure to comply with any applicable laws or regulations in connection with your use of the Service; (d) any transaction submitted by you through the Service; (e) any claim or dispute arising out of products or services offered or sold by you; and (f) your Subscription and any transactions that you submit to our Service either for yourself or on behalf of End Users.
12. Governing law; Venue.
The Service and Site are arranged, sponsored, and managed by us and our Affiliates in the State of Washington, USA. The laws of the State of Washington govern this Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws. Any dispute relating in any way to your visit to the Site or to products or services sold or distributed by Amazon Payments or its affiliates in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $7,500 shall be adjudicated in any state or federal court in King County, Washington, and you consent to exclusive jurisdiction and venue in such courts.
13. General Provisions
13.1 Entire Agreement. This Agreement, including without limitation the Policies and the general terms and conditions of the Site, constitute the entire agreement between you and Amazon Payments with respect to the subject matter of this Agreement, and supersede and cancel all prior and contemporaneous agreements, claims, representations, and understandings of the parties in connection with the subject matter of this Agreement. Except as expressly provided above, no modification or amendment of this Agreement will be binding on us unless set forth in a writing signed by us.
13.2 Modifications. We may modify the terms of this Agreement, any Policy or the features of the Service at any time. We will post the amended Agreement or Policy to our Site. Any such change in terms will be effective upon posting to our Site or when otherwise communicated to you (whichever is earlier). You will be deemed to accept any changes if you use the Site or Service after the terms become effective. If you do not accept a change to this Agreement or feature of the Service, your sole remedy is to contact us and close your account. You are at all times responsible for reading and understanding each version of this Agreement and our Policies.
13.3 Assignment. You may not assign or transfer any rights, obligations, or privileges that you have under this Agreement without our prior written consent. Subject to the foregoing, this Agreement will be binding on each party’s successors and permitted assigns.
13.4 Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect and, upon our request, the court will construe any invalid or unenforceable portions in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement and the rest of the Agreement remains in full force and effect.
13.5 No Waiver. We will not be considered to have waived any of our rights or remedies, or portion of them, unless the waiver is in writing and signed by us. Our failure to enforce the strict performance of any provision of this Agreement (including any Policy) will not constitute a waiver of our right to subsequently enforce such provision or any other provisions of this Agreement (including any Policy).
13.6 No Agency. Nothing in this Agreement is intended to or creates any type of joint venture, employee-employer, creditor-debtor, escrow, partnership, or any fiduciary relationship between you, us, Amazon.com, Inc. or its affiliates.
CREDIT CARD ASSOCIATION AGREEMENT
This Credit Card Association Agreement is a separate agreement between you (“you”) and one or more providers of settlement and processing services (“Processor”) used by Amazon Payments, Inc. (“Amazon”) to provide payment processing services to you. It applies to payment transactions that involve credit cards, debit cards, and other evidence of an account that both bear a logo of MasterCard International Incorporation, Visa U.S.A., Inc., or Visa International (the “Associations”) and are issued by an Association member (each, a “Card”). The Associations require that you enter into this separate agreement with the Processor to use Amazon’s services. For purposes of this Credit Card Association Agreement, “Processor” includes Paymentech L.P. or any other payment processing provider that processes Card transactions for you.
By registering for and using your “Payment Account” pursuant to the DevPay Payment Processing Agreement (“DevPay Agreement”), you agree to the terms and conditions of this Credit Card Association Agreement and all incorporated agreements, documents, or policies.
A. Relationship to DevPay Payment Processing Agreement. Processor’s Card processing services are part of the services made available to you as a “commercial entity” defined by the Associations’ Rules (described below) and as user payment services of Amazon. The terms of this Credit Card Association Agreement are separate and in addition to the terms of the DevPay Agreement. With respect to Card transactions processed by Processor, you agree to adhere to the applicable terms and conditions of the DevPay Agreement and all associated policies of Amazon.
B. Term; Termination. This Credit Card Association Agreement is effective as of date you were approved for a Payment Account and continues so long as you maintain a Payment Account. This Credit Card Association Agreement will terminate immediately upon the termination or expiration of the DevPay Agreement or if your Payment Account is closed. Processor may terminate this Credit Card Association Agreement or otherwise suspend its processing services to you if (a) you breach any term or condition of this Credit Card Association Agreement or the DevPay Agreement related to the processing of Cards, including without limitation the violation of Association Rules (described in Section C below), or (b) the agreement between Processor and Amazon regarding the Processor’s payment processing services for Cards transactions terminates or expires. In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Credit Card Association Agreement, Sections 4 through 8 of this agreement will survive any termination of this agreement.
C. Associations. The Associations require that you will comply with all bylaws, rules, and regulations of the Associations, as may be applicable to you and your Card transactions and as are in effect from time to time (“Association Rules”). You understand that Processor may be required to modify this Credit Card Association Agreement in order to comply with requirements imposed by the Association Rules. You may use the logos of the Associations only in the manner authorized by the Associations and to indicate that Cards of the Associations are accepted as methods of payment using the DevPay service.
D. Chargebacks; Reserves. As further described in the DevPay Agreement, you agree that a Processor may direct Amazon to create and hold reserves, holdbacks, deposits, or other safeguards against potential losses associated with your Card transactions, including without limitation losses associated with chargebacks. In the event of a chargeback, you agree to respond promptly to any information requests of Amazon and any retrieval requests of Processor within seven days. You acknowledge that your failure to timely and completely respond to such requests for information in accordance with Association Rules may result in an irreversible chargeback to you.
E. Cardholder Data. As a part of Amazon’s services, you will not have access to certain information associated with Cards being processed, including without limitation account number, expiration date, and the card verification value (CVV2/CVC2) (collectively, “Cardholder Data”). You will not solicit, collect, store, or disclose Cardholder Data except as expressly permitted by Amazon, Processors, the Association Rules, and applicable law. If you are given access to Cardholder Data, you must exercise reasonable care to prevent its disclosure, other than to your agents and contractors for the purpose of assisting you in completing a Card transaction, or to the applicable Association, or as specifically required by law. You may not use any Card or Cardholder Data other than for the sole purpose of completing the transaction authorized by the customer for which the information was provided to you, or as specifically allowed by Association Rules, or required by law. If you have access to Cardholder Data, Association Rules require you to comply with all security standards and guidelines that may be published from time to time by the Associations, including without limitation the PCI Data Security Standard and Visa U.S.A. Cardholder Information Security Program (collectively, the “Security Guidelines”). Your failure to comply with these Security Guidelines may result in fines or penalties being levied against you, Amazon or the Processor by the Associations because of your actions.
F. Indemnification. You agree to indemnify and hold harmless Processor against all claims, actions, demands, losses, liabilities, damages, and expenses arising from or related to (a) any breach of any obligation under this Credit Card Association Agreement or the DevPay Agreement (related to Card transactions processed by Processor), including without limitation any violation of Association Rules; (b) any misrepresentation or fraud by you in applying for or maintaining a Payment Account, your submission of Card transactions for processing, or the operation of your business; or (c) your provision or sale of goods or services to cardholders for Cards transactions processed by Processor.
G. Warranty Disclaimer. Processor makes no representations or warranties, whether express or implied, regarding any service provided directly or indirectly to you, including without limitation, any warranties of merchantability, fitness for a particular purpose, title, or non-infringement or implied warranties arising from a course dealing or trade usage.
H. Limitation of Liability. To the extent allowed by law, Processor and its affiliates, directors, officers, and employees will not be liable for any indirect, incidental, punitive, or consequential damages arising out of or related to this Credit Card Association Agreement or Processor’s payment services, including without limitation any inability, delay, or errors in using the services.
I. General Provisions. This Credit Card Association Agreement will be binding upon and will inure to the benefit of the parties’ respective representatives, successors, and assigns. This Credit Card Association Agreement may not be amended except by Processor upon notice to you, and your continued use of Amazon’s services after such notice constitutes your acceptance of such amendment. The failure of a party to this Credit Card Association Agreement to object to or to take affirmative action with respect to any conduct of the other party that is in violation of the terms of this Credit Card Association Agreement will not be construed as a waiver thereof, or as waiver of any future breach or subsequent wrongful conduct. If any term or condition of this Credit Card Association Agreement should be held invalid by a court, arbitrator, or tribunal of competent jurisdiction in any respect, such invalidity will not affect the validity of any other term or condition hereof. If any term or condition of this Credit Card Association Agreement should be held to be unreasonable as to time, scope, or otherwise by such a court, arbitrator, or tribunal, it will be construed by limiting or reducing it to the minimum extent so as to be enforceable under then applicable law. As between you and Paymentech serving as the Processor, this Credit Card Association Agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard to its choice of law rules. This Credit Card Association Agreement and all referenced documents constitute the entire understanding between you and Processor and supersede any and all agreements or understanding, whether in writing or otherwise, relating specifically to the subject matter hereof.
