Terms of Use

Last Updated November 10, 2020

Merchant Candy Inc. ("Merchant Candy", "we", "us" or "our") enables business-to-business payments and, in some limited scenarios, consumer-to-business payments as described below in Section 3.2. These Terms of Service (the “Agreement”) are a legal agreement among Merchant Candy, Merchant Candy’s bank partners, and you and any person or organization for which you act. Merchant Candy’s current bank partner is Silicon Valley Bank (“SVB”) (a “Bank”). This Agreement governs your use of our website located at www.merchantcandy.com and the associated software and services (collectively the “Services”). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING ANY MERCHANT CANDY SERVICES. If you do not agree to this Agreement, do not use the Services.

This Agreement provides that all disputes between you and Merchant Candy will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. Please review Section 22 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any dispute with Merchant Candy.

As used in this Agreement, the words “you” and “your” refer to you, a User (defined below) of the Services and the Party agreeing to this Agreement. The words “we,” “us,” “our” and any other variation thereof refer to Merchant Candy. Please note that SVB may also enforce any provisions of this Agreement that relate to the banking services or payment processing that they provide. Any reference to Merchant Candy, or SVB in this Agreement also includes, as applicable, their respective affiliates, directors, officers, employees, contractors, owners and agents.

1. ACCEPTANCE OF AGREEMENT.

By accessing the Services, you agree to, and are bound by, the terms and conditions of this Agreement. If you do not agree to this Agreement, do not use the Services. You represent that you have authority to enter into this Agreement on your own behalf and on behalf of any person or organization for which you act.

2. AMENDMENTS.

Merchant Candy may modify this Agreement at any time in its sole discretion by updating this posting. We will take reasonable steps to notify you of any material changes to this Agreement. Your continued use of the Services after a modification signifies your agreement to the modification. If you have any questions about this Agreement, please contact us at: support@merchantcandy.com.

3. OVERVIEW OF MERCHANT CANDY SERVICES.

3.1. Description of the Services.

Merchant Candy provides Invoice Enablement Services (“Services”) which generally enable the electronic delivery of invoices on behalf of United States-based businesses (“Merchant”, “Payees”) to their customers, also United States-based businesses (“Payors”, “Buyers”). Merchant Candy acts as an Agent of the Payee to facilitate the receipt of funds and crediting of customer accounts on behalf of the Merchant for commercial transactions. Merchants may generate and upload invoices through the Merchant Candy Services to request payment from Payors. Merchants may also send invoices and request payment from payors that have not registered for Merchant Candy’s Services. For access to and use of the Services, Merchant Candy may charge Merchants a fee (the “Fee”) at the time of Payment crediting.

3.2. Limited Use of Service for Consumer to Business Payments.

California based Merchants that enroll in the Services may also use the Services to accept payments from consumer-payors that reside in California. By using the Services for this purpose, Merchant acknowledges and agrees that Merchant Candy is the agent of the Merchant for purposes of the payment transaction. As a result, the consumer-payor’s obligation to Merchant is satisfied when the consumer-payor submits payment to Merchant Candy. Please note that California-based consumer-payors cannot independently register for the Merchant Candy Services; they may only use the Services where an enrolled Merchant requests payment from such consumer-payor.

3.3. Accepted Payment Methods.

Merchant Candy enables Payors to transmit payments to Merchant via automated clearinghouse (“ACH”), credit or debit card, or via wire transfer. Merchants may receive payments via electronic check, debit card, ACH transfer, or via wire transfer.

  • Merchant Candy supports payments from all U.S. financial institutions.
  • Cards issued on the following payment networks may be used as payment methods via the Services: Visa, MC, Discover, STAR, PULSE and Accel.

3.4. Fund Ownership.

  • Payments to Merchant (other than Fees) do not pass into Merchant Candy’s legal ownership at any time from payment initiation to successful delivery, including any subsequent refunds.
  • Merchant Candy uses master bank accounts at each of the Banks that are held in the Banks’ names and owned by the Banks. The account titles also show that these accounts are for the benefit of customers (Payees) of Merchant Candy. You grant Merchant Candy the right to instruct the Banks on the use of funds in the accounts, including to receive funds from you and to then remit funds to your Payors based on your instructions. The Banks transfer all funds for the benefit of Merchant Candy’s Payees upon Merchant Candy’s instructions.

4. ELIGIBILITY AND SETTING UP YOUR ACCOUNT

4.1. Eligibility Requirements.

In order to use the Services, you must (i) be an individual of at least 18 years of age and able to form legally binding contracts under applicable law, (ii) have a valid and active e-mail address, (iii) use the Services on behalf of a United States-domiciled business entity or freelancer; and (iv) have a valid deposit account. Other restrictions may apply.

4.2. Creating an Account.

In order to access the Services as a Merchant, you must create an account (“Account”). When you set up your Account, you will be required to create log-in credentials by providing certain types of personal information including your name, a valid email address, information about your business, and a strong password (collectively, your “Registration Information”). We also request additional information, such as your business’ EIN, after you have created your Account. You agree to provide true, accurate and complete Registration Information and to notify us promptly if any of your Registration Information, including your email address, changes. You agree that you will take reasonable precautions to safeguard your password and other authentication details and keep them confidential. You are responsible for all activity that occurs in association with your Account. Merchant Candy is not liable for any loss or damages caused by your failure to maintain the confidentiality of your Account credentials.

4.3. Privacy; Identity Authentication

  • Personally identifiable information (“Personal Information”) provided through the Services is governed by our Privacy Policy located at www.merchantcandy.com/privacy-policy. By using the Services, you agree to, and are bound by, the terms of Merchant Candy’s Privacy Policy which is incorporated by reference into this Agreement as if it were set forth herein in its entirety.
  • You authorize Merchant Candy, directly or through third parties, to make any inquiries we consider necessary to verify your or your business’ identity. This may include asking you for further information, requiring you to take steps to confirm ownership of your email address, financial instruments, or information associated with your business, and verifying your Personal Information and your business’ information against third party databases or through other sources. If Merchant Candy cannot verify your or your business’ identity, Merchant Candy reserves the right to deny you use of the Services or to limit your use of your Account.
  • If you as a Payor pay, in a calendar year (1) more than $25,000 in payments through the Services; or (2) more than 200 individual transactions through the Services, you agree to provide Merchant Candy with your taxpayer identification number.

4.4. Linking a Payout Method.

Once you have created an Account, you may link various payout methods in order to receive funds. This includes your depository accounts with financial institutions (each, a “Bank Account”) or credit or debit cards. Merchant Candy may use Plaid Technologies, Inc. (“Plaid”) to gather your data from financial institutions. By using the Services, you grant Merchant Candy and Plaid the right, power, and authority to act on your behalf to access and transmit your personal and financial information from the relevant financial institution. You agree to your personal and financial information being transferred, stored, and processed by Plaid in accordance with the Plaid Privacy Policy available at https://plaid.com/legal. Please note that payout methods may be saved to your Account for easy reference and submission.

4.5. Payout Method Verification.

Upon addition to your Account, your Bank Account may be verified to confirm its validity. A temporary, small authorization charge may appear on your bank statement. You authorize Merchant Candy to credit your Bank Account with two (2) different and random micro-deposits, which you will be required to enter once prompted through the Services. You also authorize Merchant Candy to debit your Bank Account for the amounts of the two (2) micro deposits within ten (10) business days.

4.6. Payout Method Representations.

When you add a payout method to your Account, you agree to the following:

  • You have the authority to disclose the payout method information and to bind the person or organization for which you act;
  • You authorize the initiation of debit or credit entries, as applicable, to the payment methods in accordance with instructions inputted through the Services, and, if necessary, the initiation of adjustments for any transactions debited or credited in error;
  • You acknowledge that transactions initiated from your payout method must comply with the provisions of U.S. law;
  • Your authorization will remain in effect until not later than thirty (30) days after Merchant Candy receives written notice from you of your desire to cancel; and
  • You will not use the Services for personal, family, or household purposes; unless you are a California-based Merchant receiving payments from California-based payors for personal, family, or household purposes.

4.7. Payor Existing Payout Method Terms.

All payout method usage associated to payments submitted via the Services are subject to existing terms for the payout method, including any relevant credit or transactional limits, credit and interest terms, and rewards programs. Where applicable, Merchant Candy (and to the extent applicable, the Banks) retains all rights and authority for the treatment of your payment methods via the Services, which may supersede the payout method program terms. For example, Merchant Candy may impose a transactional limit on your payout method for payments via the Services, which may be a lower value than the amount allowed by your program.

4.8. Restrictions on Payout Methods.

Payments may only be made to U.S. payout methods. We may, in our sole discretion, impose limits on the size, frequency, and timing of payments sent through the Services, on a per transaction or a cumulative basis, and change those limits at any time.

To prevent fraud and comply with legal obligations, we may put your payout method on hold for review. If you do not cooperate with our review process, your payment may be delayed or declined. We reserve the right to limit or refuse your use of a particular payout method for any reason in our sole discretion.

5. MAKING PAYMENTS THROUGH THE SERVICES.

5.1. Payment Submission.

Payments can be submitted for immediate or future processing via the Services. Payment submission requires at least the following to be specified:

  • an Invoice;
  • a Payor;
  • a payment method;
  • a payment amount; and

The Merchant may at their discretion enable or disable the payment methods that are available to the Payor.

5.2. Payment Information.

Merchant Candy may require additional information from the payor at the time of payment submission. This may include, but is not limited to, requesting additional documentation related to a specific payment or additional details regarding the designated Merchant.

5.3. Satisfactory Goods or Services.

By submitting your payment for processing through the Services, you agree that the goods or services provided by your Merchant in exchange for the payment (minus Fees) have already been rendered to your satisfaction. You hereby forfeit any future claims regarding insufficient or unexpected quality or untimely delivery of the goods and services provided, including those Services rendered by Merchant Candy in exchange for your payment of fees and those services rendered by the Banks.

5.4. Processing Payments.

  • Payments made through the Services require sufficient time for your Merchant to receive your payment and credit your account accordingly. Merchant Candy will use commercially reasonable efforts to issue payment within one to two business days following the payment submission date (“Process Date”), depending on the size of the payment and subject to “payment review,” as described in Section 7 below.
  • Payor will be solely responsible for submitting payments and should allow sufficient time for the payment to be delivered on or prior to the bill’s due date. Typically, it takes two to three full business days after the Process Date to post an electronic payment and five full business days to receive a check payment within the territorial United States by first class mail. Note, however, that the expected delivery timeframe is a projected estimate based on Merchant Candy’s historical performance for a given disbursement channel, and is subject to change.
  • Payments methods submitted for immediate processing will require successful payment method authorization at time of submission, while payments marked for future processing will require payment method authorization on the Process Date indicated for the payment. If a payment method fails to authorize, Merchant Candy and the Banks will be unable to continue to process your payment, and Merchant Candy will notify you via the Services.

5.5. Scheduled Payments.

  • Payments may be submitted with a Process Date in the future (“Scheduled Payments”), but must be assigned to a payment method at time of submission which remains valid through the payment Process Date. The details of a Scheduled Payment, including associated Fees, are locked in at time of submission, except where noted otherwise.
  • Prior to its Process Date, a Scheduled Payment may be cancelled or edited via the Services. Editing a Scheduled Payment is functionally treated as the deletion of the original Scheduled Payment and creation of a new Scheduled Payment, and accordingly may result in alterations not specifically requested including but not limited to recalculation of associated fees (per Section 11.1), and reiteration of any applicable payment review processes (per Section 7).

6. PAYMENT AUTHORIZATION.

6.1. ACH Authorization.

When the Payor choose to pay a Merchant via ACH (“eCheck”), the Payor authorize Merchant Candy or the Banks to debit the Payor’s payment method in increments or as a lump sum and remit funds to the Merchant through the ACH. The Payor also gives Merchant Candy or the Banks the right to resubmit any ACH debit that is returned for insufficient or uncollected funds, or any other reason. The Payor agree that payment transactions will be governed by the rules established by NACHA, the Electronic Payments Association, as in effect from time-to-time, under which the Payors are an "Originator", Merchant Candy is a "Third Party Service Provider," and the Banks are the "Originating Depository Financial Institutions." The Payor is responsible for all claims, demands, losses, liabilities and expenses (including attorneys’ fees and costs) that result directly or indirectly from the Payor’s failure to perform the Payors obligations under the NACHA rules and the Payor indemnifies Merchant Candy and the Banks for the same.

7. PAYMENT REVIEW.

7.1. Review.

At any time post submission, payment made to the Merchant may be subject to review, which serves to better understand the nature of and reason for the payment. During this review process and for any reason, Merchant Candy or the Banks may place a temporary hold on the delivery of a payout for as long as reasonably required to conduct an appropriate inquiry regarding the Payor, the Payee, an invoice, payment history, and other relevant circumstances and factors.

7.2. Cooperation.

You acknowledge that Merchant Candy’s ability to efficiently and effectively review a payment is reliant upon your cooperation, and you absolve Merchant Candy and the Banks from any negative impacts to the delivery of the payment arising from delayed, incomplete, or insufficient responses to our inquiries.

7.3. Result of Payment Review.

Depending on the results of this review, Merchant Candy may instruct the Banks to clear the payment, reverse the payment, or hold the payment pending instructions from a government agency. Merchant Candy also reserves the right to cancel any payment. In such cases and as permitted by applicable law, the funds will be returned to the Payor via the original payment method, or if necessary via other means.

8. CHARGEBACKS.

In the event that you as Payor initiate a chargeback, clawback, or ACH return for a payment that has already been transmitted to the Merchant, you agree to assign to Merchant Candy any claims against your Merchant associated with such chargeback, clawback or ACH return. You further agree that we may contact your Merchant directly to request reimbursement for any payment that has been transmitted to the Merchant and for which you have initiated a chargeback, clawback, or ACH return.

In the event that Merchant Candy receives a chargeback, clawback or ACH return, you as Merchant authorize Merchant Candy to debit your Payout Method on file for the amount of the chargeback plus any associated fees or to withhold funds from future distributions.

9. INSUFFICIENT FUNDS.

Merchant agrees at all times to maintain sufficient funds in the payout method to satisfy all obligations including returns, reversals, and associated fees, and to add funds immediately if Merchant Candy notifies you that your funds are insufficient. Without limiting any other available remedies, if any payment initiated from your payout method is returned because of insufficient funds, you must reimburse Merchant Candy (or to the extent applicable, the Banks) for any corresponding payment amount immediately upon demand, plus exceptions processing fees, plus any bank fees, charges or penalties for return items. Merchant Candy reserves the right to withhold funds from a payout to satisfy any outstanding balance owed by the Merchant to Merchant Candy or the Banks.

The Payor agrees to satisfy all obligations including returns, reversals, and associated fees, and to add funds immediately if Merchant Candy notifies you that your funds are insufficient. Merchant Candy or the Banks also reserve the right to debit a Merchant’s account for money paid to the Merchant on your behalf if your payment is returned because of insufficient funds or any other reason. Each of Merchant Candy and the Banks reserves the right to withhold funds from a payment to a Merchant if the Payor has an outstanding balance with Merchant Candy. You shall be solely responsible for all penalties, interest charges, late payment fees and service fees resulting from such a debit to the Merchant.

10. PAYMENT CANCELLATION REQUESTS

Scheduled payments may be cancelled, rescheduled or modified by following the directions through the Services. There is no charge for canceling, rescheduling or modifying a payment before it is processed. However, once Merchant Candy or the Banks have begun processing a payment, it cannot be cancelled, rescheduled or modified, and you must submit a stop payment request.

11. MERCHANT CANDY FEES

11.1. Service Fees.

  • You understand and agree that Merchant Candy may charge Fees for access to and use of the Merchant Candy Services. Fees will be charged to your payout method, either in a separate transaction from any principal payments or in a single transaction including both amounts, depending on applicable rules.
  • Fees for processed payments are charged in real-time upon processing for payout.

11.2. Fee Updates.

Fees may vary, depending upon factors including but not limited to the Merchant, the payment method, and other variables both which may or may not be controlled by Merchant Candy. Fees are subject to change at any time with or without prior notice. Merchant Candy will make reasonable efforts to notify Merchants of upcoming fee changes to Fees controlled by Merchant Candy.

12. APPLICABLE TAXES AND PENALTIES

The Merchant is responsible for all, if any, applicable taxes arising from your use of the Services. The Merchant is furthermore responsible for all fees, fines, penalties and other liability incurred by Merchant Candy, yourself, or a third party caused by or arising out of your breach of this Agreement, and/or your use of the Services. The Merchant agrees to reimburse Merchant Candy or a third party for any and all such liability.

13. ACCEPTABLE USE

13.1. Restricted Activities.

You agree not to use the Services for the following purposes:

  • For unsupported transfers, including sending money
    • to yourself or an entity in which you have control;
    • not in direct exchange for a rendered good or service;
    • for alimony or to escrow accounts;
    • as a donation to an organization not classified as a registered charity;
  • other than for legitimate payment purposes (e.g., to test or probe card behaviors). For unsupported goods and services, including
    • gambling and related activity (such as lotteries, bidding fee auctions, sports forecasting or odds making, fantasy sports leagues, internet gaming, contests, sweepstakes, and games of chance);
    • unsupported debt types (such as credit card balances, uncollateralized loans, auto title loans);
    • certain investment accounts or to fund unsupported investments, including but not limited to 401(k) accounts, 403(b) plans, 457 plans, 529 plans, and IRAs;
    • controlled substances and related goods or services;
    • tobacco, e-cigarettes, and e-liquid;
    • products sold by online pharmacies;
    • pornography, obscene materials, and sexually-related or “adult” services;
    • weapons, munitions, gunpowder, fireworks, and other explosives;
    • gold, diamonds, precious metals and related goods or services;
    • toxic, flammable, and radioactive materials; or
    • other goods and services subject to government regulation.
  • In violation or potential violation of applicable law, regulation, rule, or legal interest, including
    • sending or receiving potentially fraudulent funds;
    • in the course of any activity regulated by the Financial Crimes Enforcement Network (FinCEN) or any other relevant regulatory body;
    • infringement or potential infringement of any party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
    • acting in a manner that could be defamatory, trade libelous, threatening or harassing;
    • using your Account or the Services in violation of applicable payment network rules.
  • In a manner detrimental to our provision of the Services, including
    • the provision of outdated, false, inaccurate, or incomplete information;
    • using any promotional or referral programs in a manner deemed abusive or against the intention of said programs;
    • maintain or using multiple Accounts;
    • allowing other individuals to access or use your Account;
    • using an anonymizing proxy;
    • using the Services in a manner that results in or may result in complaints, disputes, claims, chargebacks, fees, fines, penalties and other liability to Merchant Candy, a third party, or you;
    • imposing unreasonable demands on our technical or personnel resources;
    • facilitating viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information;
    • using any robot, spider, other automatic device, or manual process to access, monitor or copy our website without our prior written permission;
    • using any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere, with our website or the Services;
    • taking any action that may cause us to lose any of the services provided by our Merchants, payment processors, or other suppliers;
    • reselling, re-skinning, or otherwise distributing our Services;
    • breaching this Agreement or any other agreement or policy that you have agreed to with Merchant Candy.

If you have a payment use case which is not explicitly mentioned above, and for which you would like to confirm support, please check with us by emailing support@merchantcandy.com.

13.2. Remediation.

  • Merchant Candy may request more information relating to your use of the Services to seek to identify the restricted activities identified in Section 13.1 above (“Restricted Activities”). You agree to cooperate in any investigation and to provide confirmation of your identity and any information you provide to us, as we may require.

  • If we have reason to believe that you have engaged in any Restricted Activities or that you have used our Services inappropriately, Merchant Candy or the Banks (to the extent applicable) reserves the right to, in its sole discretion and at any time, take any or all of the following actions:
    • Close, suspend, or limit your access to your Account or the Services;
    • Hold, return, or reclaim funds;
    • Update inaccurate information you provided to Merchant Candy or third parties;
    • Refuse to provide Services to you or related parties in the future;
    • Contact your bank or notify other Users, Recipients, law enforcement, or impacted third parties of your actions;
    • Take legal action against you.

When not otherwise obligated by regulatory or compliance considerations, Merchant Candy will provide you with notice of any such actions.

14. THIRD PARTY SERVICES AND LINKS TO OTHER WEBSITES

The Services may enable you to connect to third-party services or products (“Third Party Services”). If you decide to use Third Party Services, you will be responsible for reviewing and understanding the terms and conditions for these services. We are not responsible or liable for the performance of any Third Party Services. Further, you agree to resolve any disagreement between you and a third party regarding the terms and conditions of any Third Party Services with that third party directly in accordance with the terms and conditions of that relationship, and not Merchant Candy. The Services may contain links to third party websites. The inclusion of a link to a third party website does not imply an approval, endorsement, or recommendation by Merchant Candy. Such third party websites are not governed by this Agreement. You access any such website at your own risk. We expressly disclaim any liability for these websites. When you use a link to go from the Services to a third party website, our Privacy Policy is no longer in effect.

Your browsing and interaction on a third party website, including those that have a link in the Services is subject to that website’s own terms, rules and policies.

15. LIMITATION OF LIABILITY

IN NO EVENT SHALL MERCHANT CANDY, OUR SUPPLIERS AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENTS, SUBSIDIARIES, AFFILIATES, BENEFICIARIES, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, THE “MERCHANT CANDY PARTIES”) OR THE BANKS, THEIR SUPPLIERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENTS, SUBSIDIARIES, AFFILIATES, BENEFICIARIES, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, THE “BANK PARTIES”) BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT MERCHANT CANDY OR THE BANKS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH OUR SERVICES, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). THE TOTAL LIABILITY OF THE MERCHANT CANDY PARTIES (IN AGGREGATE) TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE ACTUAL AMOUNT OF DIRECT DAMAGES ACTUALLY INCURRED IN THE SIX (6) MONTHS PRIOR TO THE DATE UPON WHICH THE APPLICABLE CAUSE OF ACTION AROSE. THE BANK PARTIES SHALL HAVE NO LIABILITY TO YOU UNDER THIS AGREEMENT.

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages so the above limitation or exclusion may not apply to you. In such case, the liability of the Merchant Candy Parties shall be limited to the greatest extent permitted under applicable law.

16. DISCLAIMER OF WARRANTIES

16.1. THE MERCHANT CANDY PARTIES AND THE BANK PARTIES PROVIDE THEIR RESPECTIVE SERVICES “AS IS” AND WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. THE MERCHANT CANDY PARTIES AND THE BANK PARTIES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER THE MERCHANT CANDY PARTIES OR THE BANK PARTIES ARE RESPONSIBLE FOR YOUR FAILURE TO PERFORM OBLIGATIONS UNDER THE AGREEMENT AND DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY YOU, MERCHANT CANDY, THE BANKS, OR ANY THIRD PARTY.

16.2. Neither Merchant Candy nor the Banks have any control over the products or services that are paid for using the Services and Merchant Candy nor the Banks can ensure that a Merchant you are dealing with will actually complete the transaction or is authorized to do so. Merchant Candy does not guarantee continuous, uninterrupted or secure access to any part of our Service, and operation of our site may be interfered with by numerous factors outside of our control. Merchant Candy will make reasonable efforts to ensure that requests for electronic debits and credits involving credit cards are processed in a timely manner but Merchant Candy makes no representations or warranties regarding the amount of time needed to complete processing because the Services are dependent upon many factors outside of our control, such as delays in the banking system. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you.

17. INDEMNIFICATION

You agree to defend, indemnify and hold the Merchant Candy Parties and the Bank Parties harmless (including payment of reasonable attorney’s fees) against any claim or demand (including attorneys’ fees) made or incurred by any third party arising out of or relating to (a) your breach of any provision of this Agreement; (b) any actions taken by Merchant Candy or the Banks pursuant to your instructions, including wage-and-hour law claims; (c) your use of the Merchant Candy Services or any Bank services; (d) your obligations to pay fees or fines to Merchant Candy, the Banks or any third parties; (e) negligence or willful misconduct of your affiliates, employees, contractors, or agents; and (f) all third-party indemnity obligations Merchant Candy or the Banks incur as a direct or indirect result of your acts or omissions (including indemnification of any payment card network, card issuer, or intermediary bank).

18. CLOSING YOUR ACCOUNT

You may request the closure of your Account at any time by emailing Merchant Candy support at support@merchantcandy.com. Merchant Candy also reserves the right to close your Account at any time with or without notice to you for any reason (including failure to pay Fees or inactivity). You will remain liable for all obligations related to your Account even after your Account is closed, including any fees or charges already due to Merchant Candy.

You may not close your Account to evade an investigation. Any invoice payments processed prior to Account closure will be completed by the Services, except those that may be cancelled following a payment review, per Section 7. All scheduled payouts for which you have not yet been credited at the time of Account closure will be paid out net of all pending fees.

19. MERCHANT CANDY’S SUSPENSION AND TERMINATION RIGHTS

Merchant Candy, in its sole discretion, reserves the right to suspend or terminate this Agreement, or suspend, terminate, or limit your access to, or use of, your Account or some or all of the Services at any time upon notice to you. Please note that Merchant Candy reserves the right to terminate the Services at any time. Merchant Candy will try to notify you in advance, but is not obliged to do so.

20. CONSENT TO ELECTRONIC DISCLOSURES

20.1. Consent to Communications.

Because the Services are provided electronically, you agree that Merchant Candy may provide important information electronically. Merchant Candy will issue the following information and disclosures (“collectively, “Communications”) electronically via the Merchant Candy Services or via electronic mail (“email”):

  • This Agreement, the Merchant Candy Privacy Policy, any other policies you agree to, and any amendments, modifications, or supplements to these agreements or policies;
  • Disclosures or notices provided in connection with the Services, including any required by applicable law;
  • Any customer service communications, including communications with respect to claims of error or unauthorized use of the Services;
  • Transaction history information, and
  • Any other communications related to the Services or your Account.

Your consent to do business electronically and our agreement to do so covers all transactions you conduct through the Service.

20.2. No Obligation to Provide Paper Communication.

Although Merchant Candy reserves the right to provide Communications in paper format at any time, you agree that Merchant Candy is under no obligation to do so. All Communications in either electronic or paper format will be considered to be "in writing." You should print a paper copy of this Agreement and any Communication that is important to you and retain the copy for your records. If you do not wish to receive this Agreement or the Communications electronically, you may not use the Services.

20.3. Withdrawal of Consent.

You can withdraw your consent to receive most Communications from Merchant Candy by emailing us at support@merchantcandy.com or following the unsubscribe procedure contained in any Communication you receive from us. However, if you withdraw your consent, you may no longer be eligible to use certain portions of the Services. Merchant Candy also reserves the right to terminate your Account if you withdraw consent to future electronic Communications. Any withdrawal of your consent to receive electronic Communications will be effective only after Merchant Candy has a reasonable period of time to process your withdrawal, which period of time shall be no longer than fifteen (15) days, or such other time as is appropriate under the circumstances, as determined by Merchant Candy in its sole discretion. Withdrawing your consent will not affect the completion of pending payment transactions or the validity of completed payment transactions.

20.4. Hardware and Software Requirements.

In order to access and retain an electronic record of Communications, you will need: a computer, a monitor, a connection to an Internet service provider, Internet browser software that supports 128-bit encryption, and an email address. By clicking the "Sign Up" button, you are confirming to Merchant Candy that you have the means to access, and to print or download, Communications.

21. FEEDBACK

In connection with your use of Services, you may elect to submit feedback, suggestions and/or other comments regarding the website and/or the Services (collectively, the “Feedback”). Merchant Candy may, in its sole discretion, decide to incorporate some or all of this Feedback into the website and/or the Services. You hereby grant Merchant Candy a worldwide, perpetual, nonexclusive, sublicensable, royalty-free license to use, reproduce, distribute, transmit, disclose, display, modify and create derivative works of all such Feedback. You further represent and warrant that you have all rights necessary to provide Merchant Candy the Feedback and that the use of the feedback by Merchant Candy will not violate, infringe otherwise misappropriate any third party rights.

22. DISPUTE RESOLUTION AND ARBITRATION

22.1. Governing Law and Forum.

This Agreement will be governed by and construed in accordance with the laws of the State of California without reference to conflict of law provisions. Any action, proceeding, arbitration hearing or mediation relating to or arising from this Agreement must be brought, held, or otherwise occur in San Francisco County, California.

22.2. WAIVER OF JURY TRIAL AND CLASS ACTIONS. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY CLAIM MAY BE RESOLVED BY BINDING ARBITRATION AND THAT (i) YOU ARE GIVING UP ITS RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY CLAIM ALLEGED AGAINST THE MERCHANT CANDY PARTIES; (ii) YOU ARE GIVING UP YOUR RIGHT TO HAVE A COURT RESOLVE ANY CLAIM ALLEGED AGAINST THE MERCHANT CANDY PARTIES; (iii) YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT OR ARBITRATION FILED AGAINST MERCHANT CANDY AND/OR RELATED THIRD PARTIES.

In the event of a dispute, claim, or controversy (“Claim”) between you and Merchant Candy or you and one or more Banks, arising from or relating in any way to this Agreement, the Services, or to the relationship formed between the parties as a result of this Agreement, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, the Claim shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”) under the AAA’s Commercial Arbitration Rules. All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other source of law. Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis. You and Merchant Candy and you and one or more Banks (as the case may be) will agree on another arbitration forum if the AAA ceases operations. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between you and Merchant Candy or you and one or more Banks. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The prohibition against class action contained in this Section 22 shall be non-severable from the remainder of this Section 22.

22.3. Arbitration Terms.

If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office, www.adr.org, or 1 Sansome St #1600, San Francisco, CA 94104, telephone 1-800-778-7879. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests for contractual debts now or hereafter owned by either party to the other. IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, YOU AND MERCHANT CANDY AND YOU AND ONE OR MORE BANKS MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION.

23. RELEASE OF MERCHANT CANDY AND THE BANKS

If you have a Claim with one or more Recipients or other third parties, you release Merchant Candy and the Banks (and their respective officers, directors, agents, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such Claims.

24. RESPONSIBILITY FOR COMPLIANCE WITH EMPLOYMENT LAW

To the extent that Merchant Candy is used by independent contractors for the purposes of invoicing, you expressly acknowledge and agree that you (not Merchant Candy and not the Banks) are responsible for compliance with all wage and hour laws, including but not limited to compliance with Cal. Labor Code § 2750.3, and all applicable laws regulating the time, place, and manner of payments for their service. Merchant Candy provides a means for transmitting funds. However, you (not Merchant Candy and not the Banks) are responsible for complying with all laws pertaining to the classification of independent contractors and payment for their services.

25. GENERAL

25.1. Complete Agreement.

This Agreement together with any other Merchant Candy documents, policies and/or agreements referenced herein sets forth the entire understanding between you and Merchant Candy with respect to the Services and you and the Banks with respect to banking services or payment processing services. The following sections of this Agreement and all other terms which by their nature should survive, will survive the termination of this Agreement: 15 (Limitation of Liability), 16 (Disclaimer of Warranties), 22 (Dispute Resolution and Arbitration), 23 (Release of Merchant Candy and the Banks), and 25 (General). If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.

25.2. Intellectual Property.

“Merchant Candy”, and all logos related to Merchant Candy, are either trademarks or registered trademarks of Merchant Candy or its licensors. You may not copy, imitate or use them without Merchant Candy’s prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Merchant Candy. You may not copy, imitate, or use them without our prior written consent. All right, title and interest in and to the Merchant Candy website, any content thereon, the Services, the technology related to the Services, and any and all technology and any content created or derived from any of the foregoing, is the exclusive property of Merchant Candy and its licensors.

25.3. Force Majeure.

Neither Merchant Candy nor the Banks shall be liable for any issues or delayed performance caused by circumstances beyond Merchant Candy's or the Banks’ reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, service provider failures or delays.

25.4. Assignment.

You may not transfer or assign any rights or obligations you have under this Agreement without Merchant Candy's prior written consent. Merchant Candy reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.

25.5. Severability.

If any provision of this Agreement is held to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.

25.6. No Waiver.

If Merchant Candy fails or delays in exercising any right, power or remedy or to take action against any breaches of this Agreement, it does not mean that it waives its right at a later time to enforce the same.

25.7. Contacting Merchant Candy.

Unless otherwise stated in this Agreement, notices, inquiries, and requests to Merchant Candy should be emailed to support@merchantcandy.com. Please note that email communications sent to Merchant Candy for Account-related matters (e.g., late fee payouts, disputes, etc.) must come from the email address listed in your Account. Account-related communications initiated via other channels may require identity verification in order to obtain information or change settings.

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