PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
This GoDaddy Commerce Services Agreement (this “Service Agreement”) is a legal agreement between GoDaddy Payments, LLC (“GoDaddy,” “we,” “us,” or “our”) and the person, legal entity or organization (“you,” “your” or “Sponsored Merchant”) identified on the application that you or your individual representative ("Representative") completed and submitted (the “Sponsored Merchant Application”). This Service Agreement (i) governs your use of the GoDaddy’s Payment services (“GD Payments”) and shall be effective as of the date you begin using GD Payments or the data you accept this Service Agreement and (ii) incorporates the GoDaddy Universal Terms of Service Agreement (and any successor versions) ("Agreement"). Capitalized terms used in this Service Agreement, but not defined herein are defined in the Agreement, which sets forth the general terms and conditions of your use of the Site and Services. In the event of a conflict between the provisions of the Agreement and the provisions of this Service Agreement, the provisions of this Service Agreement shall control.
We reserve the right, at our sole discretion, to amend, change or modify portions of this Service Agreement at any time. When we do this, we will post the revised Service Agreement on the Site and will indicate the date of such revision. Your continued use of GD Payments after the date of any such changes constitutes your acceptance of the new terms and conditions of this Service Agreement.
DESCRIPTION OF SERVICES
- GD Payments. GoDaddy provides GD Payments to you so you can accept on your website, mobile phone or in your app certain Cards (defined below) from a person or entity to whom a Card is issued or who is authorized to use a Card (a “Cardholder”). As used throughout this Service Agreement, a “Transaction” means an Authorization request of a Cardholder for a payment from the Cardholder to the Sponsored Merchant submitted by Sponsored Merchant to GoDaddy; and an “Authorization” means the process whereby a Cardholder (or Sponsored Merchant on Cardholder’s behalf) requests permission for a payment method to be used for a particular purchase of Sponsored Merchant’s products or services. Our providing of GD Payments is subject to the terms of this Service Agreement, all applicable federal, state, and local laws, statutes, regulations, ordinances, case law and regulatory guidance (collectively, “Applicable Law”), and the Operating Rules (defined below). You agree to abide by, and to use GD Payments in strict compliance with Applicable Law, the Security Standards (defined below), and the Operating Rules.
- To serve as your payment facilitator, GoDaddy has agreements with Elavon Inc. ("Processor") and Adyen N.V. (each "Processor") and U.S. Bank, N.A. ("Bank"). GoDaddy, Processor and/or Bank may collectively be referred to herein as “Acquirer,” and any of which may exercise rights belonging to Acquirer hereunder. You agree that we may, without amending this Service Agreement, from time-to-time contract with another payment processor to provide payment processing functionality and to serve as “Processor” hereunder or another financial institution to provide sponsorship with the Payment Networks and to serve as “Bank” hereunder. We discuss our agreements with Processor and/or Bank (all such agreements, the “Processing Agreements”) in more detail below.
- When we refer to a “Card” in this Service Agreement, it means an account (or evidence of an account) that you accept as payment for a good or service that you provide, which account (or evidence thereof) is authorized and established between the Cardholder and one of the following: (a) American Express Travel Related Services Company, Inc. and its successors or assigns (“American Express”); (b) Discover Financial Services, LLC and its successors or assigns (“Discover”); (c) Mastercard International Inc. and its successors or assigns (“Mastercard”); (d) Visa Inc. and its successors or assigns (“Visa”); (e) and any card network issuing credit or debit cards, and, for purposes hereof, the Payment Card Industry Security Standards Council (the parties in (a)-(e), collectively, the “Payment Networks”), or (f) representatives or members of a Payment Network. The Cards and the various payment methods supported through GD Payments may change at any time and without prior notice to you.
- GoDaddy is a payment facilitator that provides data processing services for Sponsored Merchants. These services are provided on a business-to-business basis to Sponsored Merchants and it is understood that these services are not for personal, family or household purposes. GoDaddy is not a bank, money transmitter, or Money Services Business (“MSB”), and we do not offer banking or MSB services as defined by the United States Department of the Treasury
FEES AND CHARGES
- You agree to pay the fees and charges set forth on the fee schedule that appears at GoDaddy Payments Fee Schedule (U.S.), as these may be modified or amended at any time as permitted hereunder (the “Processing Fees”). The Processing Fees are qualified by the other terms of this Service Agreement. You agree that such fee schedule constitutes adequate fee disclosure for purposes of the Operating Rules and Applicable Law.
- You are responsible for fines and indemnified losses charged by or payable to third parties (including Bank, Processor, and/or any Payment Network), in either case related to or associated with your use of GD Payments, your Transactions, and/or your processing activity. Acquirer may, at any time, with or without notice, collect such amounts (i) pursuant to an invoice we deliver to you; (ii) by demanding immediate payment; (iii) by debiting the Settlement Account (as defined below) and/or any Reserve Funds (as defined below); and/or (iv) by subtracting such amounts from future settlements. Your failure to pay any Processing Fees, any fines and indemnified losses referenced in Section 3.2 or any other payment default by you under this Agreement, including, without limitation, the failure to pay Chargebacks as required under Section 8.6.1, shall be deemed a “Payments Default” (except to the extent GoDaddy is able to recover such unpaid amounts from the Settlement Account within three (3) business days from the date the payment default has occurred). Upon a Payments Default, such amount will accrue interest at the lesser of 1.5% per month or the highest amount permitted by Applicable Law.
TERM; ACCOUNT TERMINATION
- Term. This Service Agreement shall become effective as of the date you begin using GD Payments and shall continue indefinitely unless and until terminated by either you or us. If you elect to present, and we elect to process, Transactions beyond the date of termination, then this Service Agreement will continue to govern such processing activity.
- You or we may terminate this Service Agreement any time by giving at least thirty (30) days’ notice to the non-terminating party.
- In addition to any other termination rights, Acquirer may terminate this Service Agreement (or, may terminate this Service Agreement as to any Payment Network), suspend and/or limit your use of GD Payments and/or decline to process particular Transactions at any time and without notice, if: (a) you fail to comply with any term hereof; (b) Acquirer, in its sole discretion, determines that you and/or any affiliated entity and/or individual are violating the Operating Rules and/or Applicable Law and/or are engaging in suspicious, wrongful, fraudulent and/or deceptive conduct and/or other conduct creating a risk of harm and/or loss to Acquirer and/or the Payment Networks (and we may suspend GD Payments and/or decline to process particular Transactions, with or without notice, during the investigation of any such alleged conduct); (c) you, any guarantor, or any affiliated entity or individual becomes involved in voluntary or involuntary bankruptcy or insolvency proceedings; (d) Acquirer deems you to be financially insecure; (e) you materially alter your business; (f) there is a material change in your processing activity, either from historical processing activity or the activity projected in the Sponsored Merchant Application, or you processed a greater concentration of Cards (e.g., American Express, corporate Cards, and/or international cards) than anticipated; (g) we receive direction from any Payment Network to terminate this Service Agreement; (h) we, in our reasonable discretion, determine that circumstances otherwise warrant immediate termination or suspension; (i) any Payment Network takes any action adverse to our registration or re-registration with such Payment Network; (j) any of the Processing Agreements are terminated; or (k) we determine we are required to terminate this Service Agreement by any of the Processing Agreements or Operating Rules.
- Your obligations for Transactions processed under this Service Agreement, including your obligation to pay refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer or the Payment Networks, survive any termination of this Service Agreement.
YOUR OBLIGATIONS; REPRESENTATIONS AND WARRANTIES
- Sponsored Merchant Application. You agree that all information provided by you or your representative in your Sponsored Merchant Application is complete and accurate. The Sponsored Merchant Application is incorporated herein by reference, and forms part of this Service Agreement.
- At the time of your or your Representatives' submission of the Sponsored Merchant Application, and each time you submit a Transaction, you represent and warrant to Acquirer that: (a) you have the full legal power, right and authority to enter into and perform under this Service Agreement; (b) (if you are a legal entity) you are duly organized, validly existing and in good standing under the laws of your place of incorporation; (c) you meet the definition of, and have satisfied the requirements applicable to, “Merchants” (taking into account the fact that you are authorized to accept Cards pursuant to this Service Agreement rather than a merchant agreement), “Sponsored Merchants”, and/or “Submerchants” under the Operating Rules; (d) each statement you or your Representative submitted on the Sponsored Merchant Application is and remains true and complete, except as has been disclosed in writing to, and approved by, us, including that your business is not a prohibited business as determined by us; (e) your principal place of business is located in, and you have been formed (if you are an entity or organization), under the laws of the United States; (f) the Transaction complies with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations, was conducted in accordance with this Service Agreement, and arises from a bona fide sale of goods and/or services by you in the United States for which, to the extent required by the Operating Rules, you obtained Authorization; (g) except as otherwise permitted by the Operating Rules, the goods have been shipped and/or delivered and/or the services performed; (h) the Transaction represents a valid obligation for the amount submitted and does not involve the use of the Card for any other purpose; (i) the Transaction is not one that you know or should have known to be fraudulent, unauthorized, the product of collusion between the Cardholder and you, or that is otherwise unlawful or impermissible under this Service Agreement, Applicable Law or the Operating Rules; (j) all information and data you provided in connection with the Transaction is true, correct, and accurate; (k) you have taken reasonable steps to ensure the validity of the Card and the identity of the Cardholder; (l) the Transaction is not subject to liens, encumbrances, disputes, set-off, and/or counterclaim; (m) the Transaction has not been previously submitted for processing (except as the same may be permitted under the Operating Rules); (n) you have not disbursed or advanced any cash or quasi cash (including, without limitation, gaming chips or money orders) to the Cardholder in connection with the Transaction; (o) the Transaction is not a refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible; (p) the Transaction does not arise from the dishonor of a Cardholder’s personal check; (q) you have the legal right to sell the goods and/or services purchased by Cardholder via the Transaction and are providing, and will continue to provide, high-quality customer service to the Cardholder with respect to such goods and/or services; (r) you have included your “doing business as” name, country location (which name and country is the same as you disclose to Cardholders in connection with a Transaction), correctly identified for us the appropriate category code/Card acceptor business code (“MCC”) that most closely reflects your primary business in accordance with applicable MCC guidance from the Payment Networks, and your unique merchant identification number (“MID”) in the Authorization request/message and clearing record/message for such Transaction; (s) you are not conducting or transacting with a business in any category of business or business practice for which GD Payments cannot be used, as identified here: GoDaddy Prohibited Businesses (t) you have made no representation or agreement for the issuance of refunds except as stated in your refund policy; (u) you are responsible and financially liable for any dispute or customer service-related issue with a Cardholder, for each Transaction submitted to us, and/or for any disputed Transaction or credit; (v) you have made clear to each Cardholder that you are responsible for the Transaction (including the delivery of goods and/or provision of services that are the subject of the Transaction), customer service and/or dispute resolution related thereto; (w) you are not an internet pharmacy, an internet pharmacy referral site, and/or an outbound telemarketer; (x) you have not had a contract to accept Transactions terminated at the direction of a Payment Network or governmental authority; and (y) any Transaction submitted to us to credit a Cardholder’s account represents a refund for a Transaction previously submitted to us. In addition, you represent and warranty to us that at the time of your or your Representatives’ submission of the Sponsored Merchant Application, and each time you submit a Transaction, you are (i) in compliance with all applicable sanctions and export controls laws and regulations, including those administered by OFAC and BIS and (ii) not subject to any sanctions administered by OFAC nor are you controlled by a person that is subject to sanctions administered by OFAC.
- We reserve the right to refuse to (i) process any Transaction if we believe it has been submitted in violation of this Service Agreement, Applicable Law and/or the Operating Rules, may be uncollectible from the Cardholder, and/or is likely to result in a reversal of such Transaction pursuant to the Operating Rules for any reason (a “Chargeback”) and (ii) set your Card acceptance policies.
- Except as specifically provided elsewhere in this Service Agreement, you shall provide full and unrestricted disclosure within 48 hours with respect to any written request by GoDaddy relating to the investigation of any single or mass refund request, Chargeback, suspected fraud matter, unauthorized or unlawful transaction, criminal offence, or any documentation or information required by any relevant Acquirer. Such disclosure shall include but not be limited to the identity of any contracting parties, transaction records, bank records and other financial information relating thereto, and You shall provide such further disclosure and assistance as may reasonably be required by GoDaddy and any relevant law enforcement authorities in order to properly investigate such matters.
- You shall maintain and make available at all times to GoDaddy and your customers including through your main web site accurate details of its full geographic addresses, business names, including complete telephone and email contact details, customer support details, together with its delivery, refund and privacy policies and all such other information that may be required by Applicable Law or Operating Rules.
- You will make commercially reasonable efforts not to solicit as potential customers individuals who are less than 18 years old. GoDaddy reserves the right to refuse GD Payments in transactions with individuals under the age of 18.
- You and your Representative individually affirm to GoDaddy that (a) your Representative is authorized to provide information on your behalf and to bind you to this Agreement; and (b) your Representative is an executive officer, senior manager or otherwise has significant responsibility for the control, management or direction of your business. GoDaddy may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority.
- If you are a sole proprietor, you and your Representative also affirm that you and your Representative are personally responsible and liable for your use of the Services and your obligations to Cardholders, including payment of amounts you owe under this Agreement.
- To the extent you are granted electronic access to any of Acquirer’s systems or portals, you are responsible for: (a) ensuring that only authorized users of such systems or portals access the same; (b) keeping all logins, user names, and passwords confidential; and (c) promptly notifying us of any unauthorized access of such logins, user names, or passwords; and (d) all actions taken by anyone using such access, logins, user names, or passwords, even if such you did not authorize such actions.
- You may not, and shall ensure that none of your authorized users: (a) access or use GD Payments, or any services provided by Processor, for any purpose other than your internal business purposes and as permitted hereby, (b) modify, reverse engineer, disassemble, and/or decompile any part of GD Payments, or any services or materials provided by Processor, (c) knowingly transmit any data that contains software viruses, time bombs, worms, Trojan horses, spyware, disabling devices, malicious code, or other harmful or deleterious computer code, files and/or programs to or through GD Payments, or any services provided by Processor, (d) knowingly interfere with or disrupt the servers or networks connected to or providing GD Payments, or the services of Processor, (e) remove, change or obliterate the copyright, trademark or other proprietary protection legends or notices that appear in connection with access to or use of GD Payments, or services or materials provided by Processor, and/or (f) copy, re-sell, transfer, republish, download, frame or transmit the GD Payments, or any services or materials provided by Processor, including in order to act as a consultant for any third party, or otherwise allow any third party to use or access GD Payments and/or any services provided by Processor.
- You and your authorized users will make commercially reasonable efforts to avoid linking to websites and services that are denoted as posing high risk by reputable site-rating authorities, including McAfee, Symantec and Google.
- You are responsible for the acts and omissions of your owners, Representatives, employees, consultants, contractors, agents, officers, and directors, including any unauthorized access to or use of GD Payments. Without limiting the preceding sentence, such acts and omissions will be viewed as your acts and omissions for purposes of determining if you have breached this Service Agreement and/or violated the Operating Rules, Applicable Law and the availability of any related right or remedy available to Acquirer.
PROCEDURES FOR TRANSACTIONS
- You agree to submit to us for processing all data or information resulting from a Transaction (including any Card Information (defined below)) (collectively “Transaction Information”) you believe to be authorized by a Cardholder. You must submit this Transaction Information to us contemporaneously with the completion of the related Transaction and in such a way to enable us to comply with the Processing Agreements and Operating Rules. You must submit such information to us, along with any other information that may reasonably be requested in connection with a Transaction, in such form as we may specify from time to time. You understand that your failure to submit such Transaction Information on a timely basis may (a) result in increased fees associated with the Transaction(s) (such as higher interchange fees), and you agree to pay any such fees if assessed; and/or (b) compromise your ability to be paid for the Transaction(s).
- You may not submit for processing: (a) any Transaction that does not involve you and/or that does not originate from an interaction between you and a Cardholder intending to make a purchase from you; (b) any Transaction for which you do not receive an authorization code from us; or (c) any Transaction that results in a transaction outside of your normal course of business as reflected on the Sponsored Merchant Application. All Transactions are subject to review for risk and compliance purposes and can be delayed or postponed at GoDaddy’s sole discretion. We reserve the right to refuse to process any Transaction if there is reason for Acquirer to believe that it has been submitted in violation of this Service Agreement.
- Acquirer may, at any time and in its sole discretion, impose a cap or limit, either per transaction or on an aggregate basis, on the dollar amount of the Transactions it will process for you based on your projected sales volume, as you or your Representative submitted on the Sponsored Merchant Application or in subsequent communications.
- SETTLEMENT ACCOUNT.
- You must maintain an account acceptable to us (the “Settlement Account”) at a bank or depository institution acceptable to us ("Depository Bank"). You may change the Settlement Account only if you give us at least fifteen (15) days’ prior written notice of the proposed change and we approve the change in writing. If you make a change other than in accordance with this Service Agreement, Acquirer may not be able to settle Transaction proceeds or may misdirect and/or lose such proceeds. You will be solely responsible for the same.
- The Settlement Account is for credits and debits related to Transactions, refunds, Chargebacks, Processing Fees, indemnified losses, and/or other amounts payable to (or permitted to be withheld by) Acquirer and/or the Payment Networks. You authorize Acquirer to initiate debit and/or credit entries to the Settlement Account, including through the Automated Clearing House (“ACH”) settlement process and/or via wire transfer, for any of the foregoing. Such authorization shall remain in place until the later of termination of this Service Agreement or your satisfaction of all obligations to Acquirer hereunder, as reasonably determined by Acquirer. You must maintain sufficient funds in the Settlement Account to prevent the occurrence of insufficient funds. You are solely liable for all fees, costs, and overdrafts associated with the Settlement Account.
- We reserve the right, in our sole discretion, to at any time require you and Depository Bank to enter into control agreement with GoDaddy with respect to the Settlement Account in form and substance reasonably satisfactory to GoDaddy. We agree not to give any instructions directing the disposition of funds from time to time credited to the Settlement Account except in the case of a Payments Default or as otherwise authorized under this Agreement. You will not grant control of the Settlement Account to any person or entity other than GoDaddy.
- Except as elsewhere provided herein, after receiving funds for approved Transactions, we will provisionally fund, or will direct Processor and/or Bank to provisionally fund, the Settlement Account.
- You agree that settlements under this Agreement will generally be on a net basis (i.e., the Settlement Account will be funded with the settlement funds, if any, that remain after subtracting (a) refunds, Chargebacks, Reserve Funds, Processing Fees, indemnified losses, and other amounts payable to Acquirer; and (b) any amount authorized to be retained under this Agreement). But if we fail to subtract such amounts, it does not relieve you of any liability or responsibility for them. You acknowledge that all payments and credits provided to you are provisional and subject to suspension, revocation, Chargebacks, and/or other adjustments in accordance with this Service Agreement and the Operating Rules.
- For settlement funds that Bank and/or Processor intends, or is required by the Processing Agreements, to fund the Settlement Account, you hereby irrevocably authorize us to deliver instructions to Bank and/or Processor for the disposition of settlement funds and/or the amount and timing of payments to be made to the Settlement Account including, without limitation, instructions to (a) withhold from settlement funds any amount that Acquirer determines are entitled to be withheld hereunder (including amounts for the Processing Fees or Reserve Funds) and (b) pay remaining settlement funds, if any, to the Settlement Account.
- You acknowledge and agree that: (a) Acquirer shall have no liability or responsibility for delays in the transmission and/or deposit of funds and/or your failure to receive funds where delay or failure is in any way attributable to you or any third party, including third-party banks, depository institutions, or the Payment Networks; (b) this Service Agreement (and not marketing and/or other materials) governs the transmission and/or deposit of funds, including the time thereof; (c) any fixed timelines with respect to the same are subject to the other terms hereof; and (d) we are not liable or responsible for any delays in transmission or deposit of funds due to your failure to receive funds where the delay or failure is in any way attributable to Processor or Bank.
- You agree to reimburse Acquirer upon demand for any misdirected deposits, duplicate deposits, and/or inadvertent overpayments into any of your bank accounts. In addition, Acquirer may deduct such amounts by ACH debit and/or other means from your Settlement Account and/or the Reserve Funds.
- You are fully responsible for, and must immediately pay, all Chargebacks and any and all fees, charges, and liability assessments related to Chargeback(s) associated with your Transactions. If you have reason to dispute or respond to a Chargeback, then you must do so by the date provided on the applicable Chargeback notice. We, Processor, and Bank have no independent obligation to investigate or attempt to obtain a reversal or adjustment of any Chargeback. If Acquirer, in its sole discretion, determines that you are experiencing excessive Chargebacks, then it may (a) with notice, increase the Processing Fees; (b) without notice, establish or increase the Reserve Funds; (c) without notice, suspend the GD Payments; and/or (d) without notice, terminate this Service Agreement. You may not ask or require that a Cardholder waive a right to dispute a transaction.
HOLDBACK RIGHTS; CONDITIONAL APPROVAL AND DORMANT ACCOUNTS
- This section allows us to withhold funds from you in some situations. If Acquirer, at any time during the term of this Service Agreement, determines in its commercially reasonable discretion that it may be prudent or necessary to do so (a) as a result of any unusual, suspicious, and/or risk-exposing activity (including, without limitation, money laundering, invalid sales transactions, counterfeit transactions, altered and/or duplicate transactions, activity related to a suspected Security Incident or other breach of Security Standards, and/or excessive Chargebacks) and/or (b) to enable us and/or Processor to exercise our or its rights under, and in accordance with, any of the Processing Agreements, then Acquirer may, without notice, hold funds otherwise payable to you for such period as Acquirer, in its commercially reasonable discretion, deems necessary, to provide security against liability for such activity, plus other costs or liabilities reasonably anticipated to be due to Acquirer related to the same. Without limiting any other term hereof, Acquirer may use funds held pursuant to this Section to fund the Reserve Funds (defined below).
- GoDaddy can conditionally approve your application and enable you to start accepting payments up to $1,500 or for 30 calendar days, whichever comes first, while we complete know-your-business (“KYB”) and know-your-customer (“KYC”) reviews. During this time, we reserve the right to hold the funds and release them upon successful verification of KYB and KYC. If either KYC or KYB fail, or if you do not provide additional information requested, we reserve the right to refund the Cardholders and terminate your account.
- Dormant Accounts If you leave any funds dormant in an account because you do not complete or fail KYC and/or KYB reviews, you do not provide us with your banking details, and/or for any other reason, we may deem the funds to be abandoned by you (each a "Dormant Account"). To the extent you have a Dormant Account we may charge you a dormant account fee for our handling of the dormant funds and/or to deliver them to various government agencies as required by law. To the extent required by Law, we will attempt to provide you Notice if we hold funds payable to you in an account beyond the applicable dormancy period for abandoned property.
RESERVE FUNDS AND SECURITY INTEREST.
- Acquirer may require at any time (including at the time of termination of this Service Agreement) that funds be placed in one or more non-segregated, non-interest bearing accounts established by Acquirer in accordance with this Service Agreement (the “Reserve Funds”). The purpose of the Reserve Funds is to ensure that you satisfy your obligations or anticipated obligations hereunder. That includes, without limitation, your obligations for refunds, Chargebacks, Processing Fees, indemnified losses, and/or other amounts payable to Acquirer or the Payment Networks. Acquirer may increase at any time (including at the time of termination of this Service Agreement) the amount of Reserve Funds. Acquirer has complete discretion regarding Reserve Funds-related decisions. Reserve Funds may be funded by (a) debiting the amount of Transactions that would otherwise be payable to you under this Service Agreement; (b) demanding funds from you; and/or (c) debiting the Settlement Account. If Acquirer makes a demand for funds pursuant to this Section, you must transfer the amount of funds demanded within eight (8) business hours of receipt of such demand. Reserve Funds may be used at any time to satisfy your obligations to Acquirer under this Service Agreement, including, without limitation, refunds, Chargebacks, Processing Fees, indemnified losses, and/or other amounts payable to Acquirer and/or the Payment Networks. Acquirer may continue to hold Reserve Funds until the one-year anniversary of the later of termination of this Service Agreement or the last processing activity that occurs on your account (including any Transaction or Chargeback) or for such longer time as Acquirer reasonably determines is necessary to satisfy your current or anticipated obligations under this Service Agreement, the Operating Rules, and/or Applicable Law. Until the expiration of that period, you have no ownership interest in and/or right to the Reserve Fund, which are the exclusive property of Acquirer. You also have no right to receive interest on any funds maintained in any of the Reserve Funds, which is also the exclusive property of Acquirer.
- Without in any way limiting the previous two sentences, and merely as an additional form of security, you hereby further grant us a security interest in (i) the Reserve Funds and all funds therein; and (ii) the proceeds associated with any Transaction; and (iii) all fixtures and personal property of every kind and nature including all accounts (including health-care-insurance receivables), goods (including inventory and equipment), documents (including, if applicable, electronic documents), instruments, promissory notes, chattel paper (whether tangible or electronic), letters of credit, letter-of-credit rights (whether or not the letter of credit is evidenced by a writing), securities and all other investment property, general intangibles (including all payment intangibles), money, deposit accounts, and any other contract rights or rights to the payment of money; and all proceeds (as such term is defined in the Uniform Commercial Code (the “UCC”)) of the foregoing. You hereby authorize us to file a UCC-1 financing statement for the benefit of GoDaddy at any time and from time to time in any relevant jurisdiction. We may exercise all the rights and remedies of a secured party upon default under the UCC. We may enforce our security interest(s) without notice or demand as permitted under the UCC. The security interest(s) granted under this Service Agreement will continue after termination of this Service Agreement until you satisfy all your obligations to Acquirer, as reasonably determined by us. You further agree to execute and deliver such instruments and documents as may be reasonably requested to confirm and perfect the security interest(s) granted by this Service Agreement.
- Our privacy statement is located on our Site at https://www.godaddy.com/legal/agreements/privacy-policy and is incorporated herein by reference, and is applicable to our GD Payments provided under this Service Agreement. The privacy statement sets forth your and our rights and responsibilities with regard to your personal information.
- You acknowledge and agree that in the course of your use of GD Payments, we will capture certain transaction and user information (collectively, the “Card Information”). You agree to provide us, and we shall capture, only the Card Information that is required for us to provide GD Payments. You represent and warrant that you have provided notice to, and obtained consent from, any third party data subjects whose personal information you supply to us as part of the GD Payments with regard to: (i) the purposes for which such third party's personal information has been collected, (ii) the intended recipients or categories of recipients of the third party's personal information, (iii) which parts of the third party's personal information are obligatory and which parts, if any, are voluntary; and (iv) the third party’s rights to access, rectification, and deletion, if applicable. You further agree to provide such notice and obtain such consent with regard to any third-party personal information you supply to us in the future. We are not responsible for any consequences resulting from your failure to provide notice or receive consent from such data subjects nor for your providing outdated, incomplete or inaccurate information.
- 11.3. You acknowledge and agree that, to the extent you are subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), GoDaddy is not your “business associate” or “subcontractor” as defined by HIPAA. You represent and warrant that you will not input or provide “protected health information,” as defined by HIPAA, in the course of your use of GD Payments. Any intentional or inadvertent input or provision of “protected health information” in the course of your use of GD Payments will not result in GoDaddy becoming your “business associate” or “subcontractor” as defined by HIPAA.
- "Confidential Information" means any confidential, trade secret or proprietary information (which may be business, financial or technical information) disclosed by one party to the other under this Agreement that is marked confidential or if disclosed orally designated as confidential at the time of disclosure or that should be reasonably understood to be confidential. Confidential Information shall include, but shall not be limited to, information regarding pricing techniques, fees, equipment, services, processes, procedures, marketing, and/or business development plans, source code, technical information, personnel information, and/or trade secrets.
- Each party (a) shall not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Service Agreement and for purposes of performing this Service Agreement, and (b) shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance. Each party further agrees to use the other party's Confidential Information only for the purpose of its performance under this Service Agreement. In addition, the receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects which embody Confidential Information and which are provided to the receiving party hereunder.
- The obligations set forth in Section 12.2 do not apply to information that (a) is in or enters the public domain without breach of this Service Agreement, (b) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (c) the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information, (d) is disclosed with the written approval of the disclosing party, or (e) is disclosed five (5) years from the effective date of termination or expiration of this Service Agreement. Each party may disclose Confidential Information of the other party (a) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or (b) on a "need-to-know" basis under an obligation of confidentiality substantially similar in all material respects to those confidentiality obligations in this Section to its legal counsel, accountants, contractors, consultants, banks and other financing sources.
- To the extent permitted by Applicable Law and the Operating Rules, you authorize Acquirer to disclose information regarding you to any third party who has asked for such information, and whom Acquirer determines has a legitimate business need to know such information to facilitate the purpose of this Service Agreement. You authorize Acquirer to disclose Card Information to the Payment Networks as necessary to facilitate the provisions of GD Payments. You also authorize Acquirer to share information such as volume processed, risk holds, unrecovered chargebacks and interchange and assessment costs to be able to pay third parties their referral commissions for referring you over to us.
- Notwithstanding anything else in this Service Agreement, all Card Information, Transaction Information, and/or information related to you, may be used by Acquirer and its respective affiliates and designees: (a) to provide the GD Payments; (b) for administrative and monitoring purposes; (c) to enhance or improve any of Acquirer’s products or the GD Payments; (d) in the course of any sale or reorganization of any of Acquirer’s businesses; (e) to comply with Applicable Law; (f) for disclosure to credit reporting agencies and other financial institutions; and/or (g) as otherwise permitted by Applicable Law.
- You agree and acknowledge that you will: (a) comply with the rules, regulations, and/or standards adopted or required by the Payment Networks relating to data security and the protection of Card Information and Transaction Information (collectively, the “Security Standards”), including, without limitation, Payment Card Industry Data Security Standards, Visa’s Cardholder Information Security Program and Payment Application Best Practices, Mastercard’s Site Data Protection Program and POS Terminal Security Program, American Express’s Data Security Operating Policy, Discover’s Information Security & Compliance Program, and/or any successor rules, regulations and/or standards, in each case, as any of the same may be amended from time to time; (b) maintain systems and media containing any Card Information and Transaction Information in a secure manner that prevents unauthorized access to or disclosure of any such information; and (c) not use or permit others to use information obtained through the use of GD Payments for any purpose other than in conjunction with GD Payments and in a manner described in the documentation for the GD Payments.
- You also agree to provide proof of compliance to Acquirer or any Payment Networks as required and/or upon request, including, without limitation, by attestation and/or an examination of your systems to validate such compliance. The costs of any such attestation and/or examination shall be your sole responsibility.
- To the extent you use any third party to process, store, receive, transmit, and/or otherwise have access to Card Information and/or Transaction Information, you assume full responsibility and liability for such third-party’s compliance with this Service Agreement, the Security Standards, and Applicable Law. We, Processor, and Bank shall have no liability for the acts or omissions of such third parties, which are your sole responsibility and liability. You further agree to notify us in writing of the identity of all such third parties and to ensure that such third parties are properly registered, if required to be so, with the Payment Networks. You acknowledge that Acquirer has the right to require any such third parties to undergo testing, approval, and certification by Acquirer, and may terminate any such third parties’ access to or ability to integrate with any of Acquirer’s respective systems at any time.
- If you discover and/or any time have reason to suspect that an event has occurred that results, or could result, directly or indirectly, in the unauthorized access or disclosure of Transaction Information and/or Card Information (each a “Security Incident”), you must immediately notify us at email@example.com and fully cooperate, at your expense, with all forensic examinations and remediation and mitigation procedures requested by any Payment Network or Acquirer. Furthermore, if you are undergoing a forensic investigation at the time you or your Representative submits the Sponsored Merchant Application, you must fully cooperate with the investigation until completed. The costs of such examinations, processes, and any notification of Cardholders pursuant to Applicable Law or the Operating Rules are exclusively your responsibility.
- You acknowledge that failure to comply with the Security Standards or the occurrence of any Security Incident on your systems or those of any third party referenced in Section 14.3 may result in liability assessments (sometimes referred to as “penalties” or “fines”) by the Payment Networks, legal liability, and expenses (including consultant, examiner, and/or attorney fees). Notwithstanding, you agree to fully indemnify us, Processor, and Bank and their respective officers, directors, employees, and agents, and to hold them harmless from any such costs, liability assessments, legal liabilities, and expenses, as well as the costs and fees associated with any claims or demands made by Cardholders, card issuers, Payment Networks, governmental agencies, and/or any third parties associated with your failure, and/or the failure of any third party referenced in Section 14.3, to comply with the Security Standards or the occurrence of any Security Incident.
- You agree to keep your MID confidential. As a security measure, you may be requested to identify yourself by your MID when contacting Acquirer. Any person correctly identifying your MID is presumed by Acquirer to have authority to make changes to your merchant account. You are solely liable for any damages you sustain as a result of the disclosure of your MID to any unauthorized persons.
OBLIGATION TO REPORT STATEMENT DISCREPANCIES
- You shall be solely responsible for reviewing your statements from Acquirer (including statements provided online) and for reporting to us in writing, within thirty (30) days of your receipt of any statement, any problems and/or irregularities with your statements—including, without limitation, underpayments, overpayments, and/or other discrepancies of any items, fees, charges, and/or liability assessments reflected on such statements and/or related to the period covered by such statement, including, without limitation, discrepancies between the volume and/or value of Transactions that you actually processed during the period indicated by the statement. Statements provided online shall be deemed received the first day they are available online.
- YOU ACKNOWLEDGE AND AGREE THAT NEITHER GODADDY, PROCESSOR OR BANK SHALL BE LIABLE AND/OR OTHERWISE RESPONSIBLE TO YOU, AND SHALL HAVE NO OBLIGATION TO REIMBURSE YOU, FOR ANY UNDERPAYMENT TO YOU OR OTHER DISCREPANCY THAT IS NOT REPORTED TO US IN WRITING WITHIN THIRTY (30) DAYS OF YOUR RECEIPT OF THE APPLICABLE STATEMENT.
UNDERWRITING, MONITORING, AND AUDITING RIGHTS.
- You agree to promptly furnish Acquirer with information and documents reasonably necessary to verify information provided in your Sponsored Merchant Application, evaluate your financial condition and/or business practices upon request. Furthermore, with prior notice and during your normal business hours, any of Acquirer’s respective representatives may visit your business premises to inspect your operations, activities, and/or books and records to the extent necessary to evaluate your compliance with this Service Agreement and/or to the extent necessary for us to meet our obligations under the Processing Agreements and/or for Acquirer to meet its obligations under the Operating Rules.
- You authorize GoDaddy and our service providers to retrieve information about you and your business from our service providers and other third parties, including credit reporting agencies, banking partners and information bureaus, and you authorize and direct those third parties to compile and provide that information to GoDaddy and its service providers. This information may include your, or your Representative’s, name, addresses, credit history, banking relationships, financial history, and other applicable information. You further acknowledge that Acquirer may reject your Sponsored Merchant Application in its sole and absolute discretion and that Acquirer shall not have any liability associated with such rejection.
- You agree to provide us advance written notice of any actual or anticipated (a) material change in your products and/or services, business practices, and/or the manner in which you accept Cards; (b) change to your legal form, legal name, trade name, mailing address, telephone number, tax identification number; and/or (c) changes to anticipated Transaction amounts and/or volume.
- You agree to provide any information or documentation (a) Acquirer believes is necessary to meet its obligations under any law or regulation to which Acquirer is subject including, but not limited to, the USA PATRIOT Act of 2001, Pub. L. No. 107-56, the Bank Secrecy Act, 31 U.S.C. Section 5311 et seq., the Trading with the Enemy Act, 50 U.S.C. App. Section 1 et. seq., the International Emergency Economic Powers Act, 50 U.S.C. Section 1701 et. seq., and the sanction and export regulations promulgated pursuant thereto by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”), as well as laws relating to the prevention and detection of money laundering in 18 U.S.C. Sections 1956 and 1957, or (b) we believe we are required to diligence, obtain and/or verify under any the Processing Agreements and/or under the Operating Rules (including the names and country of domicile of each of your principals and reports of all Transactions). You must provide such information to the requesting party within twenty-four (24) hours of a request for the same. You must also, on an ongoing basis (and at least quarterly), provide us with each of your office addresses, uniform resource locators, and/or “doing business as” names, as well as complete descriptions of all goods and/or services you provide.
You acknowledge that, under the Operating Rules of the Payment Networks, some of your activity and/or terminations of sponsored merchant processing agreements may result in Acquirer’s reporting sponsored merchants and their principals to the Payment Networks for inclusion on a terminated merchant file (e.g., the “MATCH” list). You, on behalf of yourself and your principals, hereby consent to such reporting and any other action by us that we believe is required by the Operating Rules and waive any claim related to the same, even in instances where you or your principals believe that reporting to have been improper or in error.
- You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures that we provide in connection with this Service Agreement and your use of GD Payments by posting it to our website, text messaging or emailing it to the address listed in the Sponsor Merchant Application. You agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies, whether or not you choose to view or print or download the disclosure or other notification. Such disclosures are considered received by you within 24 hours of the time posted on our website, or within 24 hours of the time emailed to you unless we receive notice that the email was not delivered.
- Notices under this Service Agreement to us must be in writing and delivered via hand delivery or via carrier that provides a tracking number and/or other proof of delivery. Notices to us must be sent to our addresses set forth in the Agreement.
- Notice of Assignment of Payments to Factoring Companies. In the event you assign any amounts owed to you under this Service Agreement (“Factoring”) to a third-party factoring company or other party providing the same or similar services (“Factoring Company”), you agree to promptly provide GoDaddy with written notice of such Factoring (“Notice of Factoring”) including the following information:
- name of Factoring Company;
- specifically identify the receivables that have been assigned; and
- notice must be authenticated (as required under the UCC, as defined below).
MARKS AND INTELLECTUAL PROPERTY
- You shall display the Payment Networks’ respective logos, marks, advertising and promotional materials only in accordance with the Operating Rules and cease displaying such logos, marks, advertising and promotional materials in accordance with the Operating Rules, including upon termination of this Service Agreement or at the direction of any Payment Network. You acknowledge that all such logos, marks, advertising, and promotional materials used by any Payment Network are the sole and exclusive property of such Payment Network. You agree not to challenge their ownership of such property and that they may prohibit your use of such property at any time and for any reason, with or without notice. Further, from time to time, we may provide you with materials that include our name, logo, trademarks, and/or service marks. You shall only use such materials as expressly permitted by us and shall return to us such materials upon the termination of this Service Agreement for any reason and/or upon our earlier request at any time. You shall not at any time represent, directly and/or by implication, that your goods and/or services are endorsed, sponsored, and/or guaranteed by Acquirer or any Payment Network. This Service Agreement shall not confer on you any license or proprietary rights regarding any patent, trademark, copyright, trade secret, and/or intellectual property of Acquirer or any Payment Network.
- Acquirer may require any changes to your website that it deems necessary and/or appropriate to ensure that you remain in compliance with the Operating Rules governing the use of the intellectual property described herein.
- All of our computer programs, trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to GD Payments are and will remain our sole and exclusive property. We own all rights, title, and interest, including all intellectual property rights, in and to any refinements or improvements to the same, even when such refinements or improvements result from your request.
OPERATING RULES AND RELATED OBLIGATIONS
- This Service Agreement is subject to all of the Payment Networks’ respective rules, bylaws, programs, and regulations, as the same are amended from time to time, including, without limitation, the provisions thereof governing and/or otherwise applicable to “Merchants,” “Sponsored Merchants,” and/or “Submerchants” (collectively, the “Operating Rules”). The Payment Networks have the right to enforce the Operating Rules. In the event of any inconsistency between this Service Agreement and the Operating Rules, the Operating Rules shall take precedence over this Servicing Agreement. Some of the Operating Rules for Visa and Mastercard are presently available online at usa.visa.com and https://www.mastercard.us, respectively. The American Express Merchant Operating Guide is available online at