WePay Platform Terms of Service
Dated: December 13, 2019
These Terms of Service are a legal agreement (this “Agreement”) between you, the owner of a third-party website (“Platform,” “you” or “your”) and WePay, Inc., a Delaware corporation (“WePay,” “we,” “our” or “us”). WePay is a member of the JPMorgan Chase & Co. family of companies. WePay provides payment processing services (the “Service”) to facilitate receipt by merchants (“Merchants”) of payments by card and bank transfer from persons who pay them (“Purchasers”) pursuant to the WePay Terms of Service. Platform may integrate its website (“Platform Service”) with WePay application programming interface (the “WePay API”) and the WePay software development kit (the “WePay SDK”) in order to provide Platform’s users with access to Service (the “Integrated Service”). The WePay API and the WePay SDK are referred to collectively herein as the “Development Materials.” To use the Development Materials, Platform must agree to all the terms of this Agreement.
1. Your WePay Registration
Platforms must register on https://partner.wepay.com (“WePay Partner Center”) to use the Development Materials. To register, each user must provide an email address and a self-selected password in order to create a WePay Platform account (“Platform Account”). Platforms may provide multiple internal users with access to the same Platform Account. Platform is responsible for maintaining the secrecy and security of its Platform Account access credentials (“API Key”) and for any use of or action taken under them. If Platform shares its API Key with a third party, then Platform must (1) encrypt, transmit, and destroy unnecessary copies of the API Key in accordance with guidance provided by WePay personnel, (2) impose on the third party substantially the same obligations and license restrictions imposed on Platform under this Agreement, including without limitation Sections 2, 10, 12, 13, and 17 below, (3) be responsible for such third party’s acts and omissions as though they were the Platform’s own, including any acts or omissions that, if attributable to Platform, would result in a breach of this Agreement or an obligation to indemnify WePay under Section 21 below, and (4) revoke the third party’s right to use the API Key immediately if the third party ceases to comply with applicable PCI-DSS or other security or regulatory requirements.
WePay may ask Platform for additional identification information, such as street address, telephone number, tax identification number, controller information and beneficial ownership information to complete your registration. You agree to provide supplemental documentation upon request (including but not limited to: articles of incorporation, passports, driver’s license or a business license). You agree that the identity information provided is complete and accurate to the best of your knowledge and authorize WePay, directly or through third parties, to make inquiries or verify that this information is accurate (for example, through social media or third party databases). You specifically authorize WePay to obtain your business credit reports from time to time and use them in connection with your Platform Account.
Platform will provide WePay with current, complete and accurate identification information and keep it updated on the WePay Partner Center. In addition, Platform will notify WePay if there are any significant changes to the nature of its business (including changes to any trade name(s)), product lines or services or in the event any person or entity acquires any beneficial ownership interest in the Platform which is twenty-five percent (25%) or more.
Prior to processing on production, Platform must receive written approval from WePay that its integration is working as specified in the Development Materials. If at any time WePay is unable to verify that the identity information you provided is correct and up-to-date, then, unless you provide verifiable information promptly, WePay may not allow you to process on production, or, if you are already processing on production, WePay may limit your ability to continue processing. WePay will not have any liability to you for your inability to provide Integrated Service pursuant to this paragraph.
2. Your WePay License
WePay offers WePay API to retrieve information from or submit requests to WePay. WePay also offers WePay SDKs to make WePay API calls and simplify mobile app development. Platforms that use the Development Materials and the Integrated Service that they develop are subject to the terms of this Agreement.
WePay grants Platform a non-exclusive, non-transferable license to use the Development Materials solely for the purpose of developing the Integrated Service and as part of the Integrated Service. The Development Materials and the WePay API may include technology licensed by WePay’s third-party vendors. Platform’s use of such third-party technology is subject to the foregoing licenses. Some components of the Development Materials may be licensed under an open source software license. Use, reproduction, and distribution of these components are governed by the terms of that open source software license.
Platform may not: (a) use the Development Materials or the Service to design or develop anything other than the Integrated Service, in violation of applicable law or otherwise outside of the scope expressly licensed hereunder; (b) make more copies of the Development Materials than are reasonably necessary for the authorized use, backup and archival purposes; (c) modify, create derivative works of, reverse engineer, reverse compile, or disassemble the Development Materials or the Service; (d) remove any trademarks, logos, copyright notices, proprietary notices or labels displayed on the Development Materials or the Service, or on any copies thereof made by Platform; or (e) distribute, sell, lease, rent, lend, or sublicense any part of the Development Materials or the Service to any third party, except as expressly authorized above.
Depending on the implementation, WePay may issue Platform an access token for each user of the Integrated Service who creates an account. If the Integrated Service tokenizes credit cards to facilitate payments for Merchants, the credit card tokens will be associated with the Platform, not the individual Merchant. Platform agrees that the API Key, access tokens and credit card tokens are the property of WePay, and that misuse of such API Key or tokens by Platform or its users could cause substantial loss and damage to WePay. Platform will reimburse WePay for any such loss and damage immediately upon WePay’s demand, in addition to fulfilling its indemnification obligations under Section 21 below. If Platform has access to “Cardholder Data” (as defined in Section 10 below) for this or any other reason, then Section 10, Cardholder Data Security, applies to Platform.
3. Our Role and Your Responsibility
Platform will be solely responsible for all costs, expenses, and activities undertaken by Platform in connection with development and distribution of the Integrated Service, except for the Service as provided by WePay. WePay is not responsible to your Merchants for any Platform Service — you are solely responsible for providing Platform Service to your Merchants.
WePay will perform all underwriting and onboarding of Merchants. As part of the Service, WePay will provide payment authorization, processing, clearing, settlement, and related dispute resolution services. In the event a Merchant receives a chargeback, WePay will dispute the chargeback or collect the funds directly from the Merchant, as appropriate. WePay reserves the right to decline to provide the Service to any Platform user, to limit transaction size, to impose additional reserve requirements, or to decline to process certain transactions, based on WePay’s then-current underwriting and risk management program. In order to facilitate WePay’s underwriting, Platform will share relevant risk data with WePay to help reduce fraud.
For payments by card, WePay initiates the payment process by providing information to Paymentech, LLC, a Delaware limited liability company (“Paymentech”). Paymentech is a subsidiary of JPMorgan Chase Bank, N.A., a national banking association (“Chase”), which is a member of Visa U.S.A., Inc., Visa International (“Visa”), MasterCard International Incorporated (“MasterCard”), American Express Travel Related Services Company Inc. (“American Express”), Chase Pay, or other payment card networks, associations, or companies (collectively, the “Card Networks”). Paymentech in its capacity as an authorized processor of transactions and Chase in its capacity as a member of several Card Networks are referred to collectively as the “Bank”. The Bank operates in accordance with the by-laws, operating regulations and all other rules, policies and procedures of the Card Networks as in effect from time to time (the “Card Network Rules”). For payments by bank transfer, WePay initiates the payment process by providing information to the Chase through the National Automated Clearing House (“ACH”) in accordance with all applicable laws, regulations and The Electronic Payments Association Operating Rules and Guidelines (the “ACH Rules”), each as in effect from time to time.
Platform will cooperate with WePay to assure that its Merchants comply with all applicable Card Network Rules and the ACH Rules, regardless of whether you have possession of those provisions. The Card Networks make excerpts of their respective Card Network Rules available on their websites (including usa.visa.com, www.mastercard.com, www.americanexpress.com and www.discover.com). We can provide you with excerpted provisions of the ACH Rules upon your request. If applicable, we can provide you with the Chase Platform Program Requirements for Chase Pay upon your request.
Platform must notify WePay by email to firstname.lastname@example.org within seven (7) days if Platform detects transactions processed through WePay that appear either (1) to involve funds derived from illegal activity or to be intended to disguise the ownership, nature, source, location, or control of such funds, (2) to serve no business or apparent lawful purpose, or (3) to involve the use of the Service to facilitate criminal activity.
4. Merchant Fees and Platform Fees
Unless otherwise agreed to with WePay, Platforms are responsible for setting fees for transaction processing and exceptions processing and disclosing them to their Merchants (“Merchant Fees”). Merchant Fees typically include fees charged by WePay and may include additional fees charged by Platform (“Platform Fees”). You are required to notify your Merchants of a change in Merchant Fees in a timely manner. You may enable Merchants to increase their prices to include Merchant Fees and disclose these increases to their Purchasers as a “Service Fee”. Merchants may only do this in compliance with the applicable Card Network Rules and ACH Rules.
If Merchant refunds a payment in full, WePay and Platform will return their respective Merchant Fees and Platform Fees. If a Merchant refunds a payment in part, WePay will not return its respective Merchant Fees, and you may choose whether to return your Platform Fees or not and whether to contribute WePay’s Merchant Fees or not. WePay reserves the right to change our fees. WePay will try to give you 30 days’ notice before the effective date of any change in a fee.
The Bank will pay your Platform Fees (if any) to the bank account or other payment method associated with your Platform Account according to the schedule you select (daily, weekly, or monthly). You may request ad hoc transfer at any time. If the Bank cannot transfer the funds to your bank account or other payment instrument (due to inaccurate or obsolete bank account information entered by you, or for any other reason), the Bank may refund the funds to the Purchaser or escheat them pursuant to Section 11 below. Neither the Bank, WePay, nor the Purchaser will have any liability to Platform for funds so refunded or escheated. All payments to Platforms are subject to review for risk and compliance purposes and can be delayed or postponed at WePay’s or the Bank’s respective sole discretion. The Bank may also defer settlement or restrict access to your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity. WePay or the Bank may respond to and comply with any writ of attachment, lien, levy, subpoena, warrant, or other legal order (“Legal Order”). WePay may instruct the Bank to deliver or hold any funds or any information as required under such Legal Order. Neither WePay nor the Bank is responsible for any losses that you may incur as a result of our response or compliance with a Legal Order.
The bank account or other payment instrument linked to your Platform Account must remain open while any of your Merchants use the Service and for at least 180 days afterwards (or longer as we may request). During this time, you will ensure that we are permitted to initiate debit and credit entries to or from your bank account or other payment instrument. The Bank can, without notifying you or making a demand for payment, retain, apply or set off any amount owed you by WePay or the Bank or the value of any of your property in the possession of WePay or the Bank, against any amount you owe WePay, the Bank, or our affiliates for any obligation irrespective of whether WePay or the Bank has made any related demand (even if it is unmatured). If you do not have sufficient funds in your Platform Account, the Bank may collect from any funding source associated with your Platform Account, or from any other Platform Account under your control, or from any funding source associated with such other Platform Account, including but not limited to any funds (a) deposited by you, (b) due to you under this Agreement, or (c) available in your bank account or other payment instrument registered with WePay. Your failure to pay in full amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys’ fees and expenses, collection agency fees, and interest at the lesser of one-and-one-half percent (1-1/2%) per month or the highest rate permitted by law. In its discretion, WePay or the Bank may make appropriate reports to credit reporting agencies and law enforcement authorities and cooperate with them in any resulting investigation or prosecution. You hereby expressly agree that all communication in relation to delinquent accounts will be made by email, by text or by phone, as provided by you to WePay. Such communication may be made by WePay or by anyone on its behalf, including but not limited to a third party collection agent. You assign and grant the Bank a security interest in and lien on any and all funds held in your Platform Account and any other funds and credits with the Bank.
5. Platform Account
You are not required to have funds in your Platform Account in order to use the Service. Any funds in your Platform Account will be co-mingled and held by the Bank with other funds in one or more pooled accounts at the Bank that are established in the Bank’s name for the benefit of you and other users. The Bank has sole discretion over the establishment and maintenance of any pooled account. WePay has no ownership or control, and no right, title or interest in any account in which Platform funds are held.
The Bank will hold any funds associated with your Platform Account in an account separate from any account used for WePay’s corporate funds. WePay will not and cannot use your funds for our corporate purposes (including the granting of any security or similar interest), will not voluntarily make funds available to our creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit our creditors to attach the funds. You will not receive interest or any other earnings on any funds that the Bank holds for you. As consideration for using the Service, you irrevocably assign to us or the Bank all rights and legal interests to any interest and/or other earnings or benefits that may accrue or are attributable to the Bank holding your funds in a pooled account.
If your Account is negative for an extended period of time (as defined by WePay in its sole discretion), the Bank may close your Account, and we may pursue legal action or other collection efforts.
6. E-Sign Disclosure and Consent
By accepting this Agreement, you agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, “Communications”) that we provide in connection with your Platform Account. We will provide these Communications to you by emailing them to you at the primary email address listed in your Platform Account, by texting them to you at the primary telephone number listed in your Platform Account, by emailing or texting you a link or instructions how to access them on a website, or by posting them on the WePay Partner Center. We may also provide certain Communications (such as federal and state tax statements) by U.S. mail to the street address listed in your Platform Account. Communications are considered received by you within 24 hours of the time they are emailed to you, posted to the WePay Partner Center, or mailed to you. You further agree that your electronic signature has the same effect as your manual, physical signature.
How to Withdraw Your Consent
Due to the nature of WePay services, you will not be able to use the Development Materials without agreeing to electronic delivery of Communications. You may choose to withdraw your consent to receive Communications electronically by terminating your Platform Account.
Updating Your Contact Information
It is your responsibility to keep your primary email and street address up to date. You understand and agree that if WePay sends you a Communication but you do not receive it because your primary email or street address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, WePay will be deemed to have provided the Communication to you.
If electronic Communications sent to you by WePay are returned, then WePay may close your Platform Account, and you will not be able to provide the Service to your users until we receive a valid, functioning primary email address from you.
7. Prohibited Activities
As a Platform, you must ensure that your Merchants do not violate WePay’s Terms of Service, the Card Network Rules, the ACH Rules or applicable law. In addition, you may not use the Development Materials for:
- Impersonating any person or entity or falsely claiming an affiliation with any person or entity;
- Collecting, or attempting to collect, personal information about users or third parties without their consent, or using such information except as necessary to use the Service;
- Defaming, harassing, abusing, threatening, or defrauding others;
- Posting, transmitting, or distributing content that is false, misleading, unlawful, obscene, indecent, lewd, pornographic, hateful, abusive, inflammatory, or that violates the rights of others (including rights of publicity or privacy);
- Damaging, disabling, overburdening, or impairing WePay, including without limitation, using the Service in an automated manner;
- Interfering with another user’s enjoyment of the Service, by any means, including by uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code.
If WePay determines that you have received funds resulting from fraud or a prohibited activity, those funds may be frozen, returned to the Purchaser, or seized
In addition, if we reasonably suspect that your Platform Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Platform Account, your access to the Development Materials or the Service, and any of your transactions with law enforcement.
8. Your ACH Payment Authorization
You authorize the Bank to initiate electronic ACH entries to each bank account that you connect to your Platform Account, and to initiate adjustments for any transactions credited or debited in error. You agree to be bound by the ACH Rules and you agree that all ACH transactions that you initiate will comply with all applicable laws. Your authorization will remain in full force and effect until you notify us that you revoke it by contacting us. You understand that WePay requires a reasonable time to act on your revocation, not to exceed five (5) business days.
We may share some or all of the information about you and your Platform Account with the Bank, the Card Networks, and our other service providers (and their respective affiliates, agents, subcontractors, and employees), and government agencies who may use this information to perform their obligations under their agreements with WePay, to operate and promote their respective networks, to perform analytics and create reports, to prevent fraud, conduct risk management, for regulatory or compliance purposes and for any other lawful purpose. At any time, WePay, the Bank, the Card Networks or our other service providers may conclude that you will not be permitted to use the Development Materials.
You affirm that you have obtained all necessary rights and consents under applicable law to disclose to WePay — or allow WePay to collect, use, retain, and disclose — any information that you provide to us or authorize us to collect, including information that we may collect directly using cookies or other similar means.
10. Cardholder Data Security
“Cardholder Data” is information associated with a payment card, such as account number, expiration date, and CVV2. WePay will comply with the Payment Card Industry Data Security Standards (“PCI DSS”) to the extent WePay possesses or otherwise stores, processes, or transmits Cardholder Data on your behalf, or to the extent WePay could impact the security of your Cardholder Data environment. WePay is a validated PCI Level 1 Service Provider and so is qualified to handle Cardholder Data in connection with the Service.
If you handle, transmit, or store any Cardholder Data in connection with your use of the Development Materials, the Service or the WePay API, you agree to comply at all times with PCI DSS. You also agree that you will use only PCI DSS compliant service providers in connection with the storage, processing, or transmission of Cardholder Data. Upon WePay’s reasonable request, you must provide an Attestation of Compliance (AOC) with PCI-DSS Requirements prior to launch and annually thereafter.
11. Dormant Platform Accounts
If there is no activity in your Platform Account for the period of time set forth in the applicable unclaimed property laws, and you have funds, we may notify you by sending an email to your registered email address or a text to your registered telephone number. We may also notify you by U.S. mail. If you do not initiate settlement of the funds or respond to the notice within the time period specified in the notice, we may close your Platform Account and escheat your funds (less a processing fee) in accordance with applicable law.
12. Confidential Information
“Confidential Information” means any and all information disclosed by either party to the other that is marked “confidential” or “proprietary” or that should reasonably be understood to be confidential or proprietary, including without limitation such party’s Customer Information (as defined below), computer programs (in both source code and object code forms), inventions, designs, test results, nonpublic financial information and business plans. WePay Confidential Information includes the Development Materials, the API Key, WePay API access tokens and credit card tokens. Confidential Information does not include information that: (1) is or becomes publicly known through no act or omission of the receiving party; (2) was in the receiving party’s lawful possession prior to the disclosure without restriction on use or disclosure; (3) is rightfully disclosed to the receiving party by a third party without restriction on use or disclosure; or (4) is independently developed by the receiving party, which independent development can be shown by documentary evidence. “Customer Information” means nonpublic information collected from users actively or passively, including without limitation their respective identities, contact information, and online behavior, as well as non-public information about customers collected from third parties, such as credit scores and social data.
The parties agree that any unauthorized disclosure of Confidential Information would cause irreparable harm to the disclosing party. Accordingly, in the event of any breach or threatened breach of the foregoing confidentiality obligations, the disclosing party shall be entitled to obtain equitable relief in addition to any other remedy.
Each party will develop, implement and maintain a comprehensive written information security program that contains administrative, technical, and physical safeguards that are appropriate to the sensitivity of any Confidential Information received, processed, stored, or maintained by that party. Each party will promptly respond to reasonable requests from the other party for information regarding its own information security program.
You are fully responsible for the security of Confidential Information (including but not limited to the API Key, WePay access tokens, credit card tokens, and Cardholder Data) on your website or otherwise in your possession or control. You will provide WePay with all information WePay reasonably requests regarding your information security practices.
If you discover a security-related issue, including any unauthorized use of your access credentials or Platform Account, you will inform us of the issue immediately by contacting the WePay Security Team at email@example.com. You also agree not to disclose the issue until WePay and the Bank have addressed it unless otherwise required by law.
14. Your Right to Terminate
You may terminate this Agreement upon sixty (60) days prior written notice to firstname.lastname@example.org. Upon expiration or termination of this Agreement, Platform will destroy all copies of the Development Materials and will cease all use of the WePay API and the Integrated Service by Platform and your users.
15. Our Right to Terminate
We may terminate this Agreement and close your Platform Account for any reason or no reason at any time upon notice to you. We may also suspend the Service to your users if you (a) have violated the terms of WePay’s policies or this Agreement, (b) pose an unacceptable credit or fraud risk, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.
16. Effect of Termination
If your Platform Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Development Material, (c) that the license provided under this Agreement shall end, (d) that we have the right to delete all of your information and Platform Account data in accordance with our record-keeping policies and applicable law, and (e) that WePay shall not be liable to you or any third party for any of the foregoing actions. WePay will not be liable to you for compensation, reimbursement, or damages in connection with any termination or suspension of your Platform Account. Any termination of this Agreement does not relieve you of any obligations to pay any fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement.
17. WePay’s Intellectual Property Rights
The Development Materials are licensed and not sold. WePay or third parties own all legal right, title and interest in and to the Development Materials, including any Intellectual Property Rights (defined following) that subsist in the Development Materials. “Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights. WePay reserves all rights not expressly granted to Platform. This Agreement does not grant you any rights to WePay’s trademarks or service marks, nor may you remove, obscure, or alter any of WePay’s trademarks or service marks included in the Service.
You may choose to, or we may invite you to, submit comments or ideas about the Service, including without limitation about how to improve the Service or the Development Materials (“Feedback”). By submitting Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place WePay under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, WePay does not waive any rights to use similar or related ideas previously known to WePay, or developed by its employees, or obtained from sources other than you.
18. Your Representations and Warranties
Platform represents and warrants that: (a) it has the full corporate right, power and authority to enter into and perform this Agreement; (b) this Agreement constitutes the valid and legally binding agreement and obligation of the Platform, enforceable in accordance with its terms; (c) it will conduct its business in a commercially reasonable, legal, and ethical manner, subject to the express provisions of this Agreement; (d) each person with access to your Platform Account is duly authorized to act for and on behalf of the Platform; (e) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated thereby, will constitute a default or violation of its articles of incorporation, bylaws or any license, lease, franchise, mortgage, instrument, or other agreement; and (f) you are not a “Bearer Share Company” (defined following) and you do not have any outstanding and will not issue any new “Bearer Shares” (defined following). “Bearer Share Company” means a type of company which, unlike registered share companies, issues its securities as Bearer Shares. “Bearer Shares” means securities that are not registered in the name of the owner on the books of the issuing corporation and thus payable to any possessor of the shares.
Platform further represents and warrants that: (1) to its knowledge, the Platform Service and the Integrated Service do not and will not infringe, violate or misappropriate any intellectual property rights of any third party; (2) Platform has and will have all necessary rights, licenses, authorizations and approvals to provide the Platform Service and the Integrated Service as contemplated by this Agreement, including authorizations from its Merchants for the use of Merchant data obtained through the Integrated Service, by the Platform or its agents; (3) Platform will comply with its responsibilities as described in this Agreement; (4) Platform will not use the Development Materials or knowingly permit the use of Service to facilitate use of a WePay account to process payments for goods and services provided by anyone other than the Merchant who owns the WePay account; and (5) the Integrated Service is and will be compliant with all applicable Card Network Rules and “Security Standards,” defined following. “Security Standards” means all rules, regulations, standards, or guidelines adopted or required by the Card Networks or the Payment Card Industry Security Standards Council relating to privacy, data security, and the safeguarding, disclosure, and handling of “Payment Instrument Information,” defined following. “Payment Instrument Information” means information related to a “Cardholder” or the “Cardholder’s Payment Instrument,” defined following, that is obtained by the Merchant from the Cardholder’s Payment Instrument, or from the Cardholder in connection with his or her use of a Payment Instrument (e.g., a security code, a PIN number, credit limits, account balances, or the Cardholder’s zip code when provided as part of an address verification system). “Cardholder” is the person or entity to whom a Payment Instrument is issued or who is otherwise entitled to use a Payment Instrument and who utilizes the Payment Instrument to purchase goods or services from a Merchant. “Payment Instrument” is an account, or evidence or any account, authorized and established between a Cardholder and Card Networks that Merchant accepts from its Purchasers. Platform understands that its failure to comply with the Card Network Rules, including the Security Standards, may result in assessments, fines, and/or penalties by the Card Networks, and Platform agrees to indemnify and reimburse WePay immediately for any such assessment, fin, or penalty imposed on WePay (or its parent, Paymentech, or its member sponsor, JPMorgan Chase Bank, N.A.) and any related loss, cost or expenses incurred by WePay.
19. Disclaimer of Warranties by WePay
THE DEVELOPMENT MATERIALS ARE PROVIDED BY WEPAY WITHOUT ANY WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WEPAY DOES NOT WARRANT THAT THE DEVELOPMENT MATERIALS WILL ASSIST IN DEVELOPMENT OF THE INTEGRATED SERVICE, WILL BE COMPATIBLE WITH THE SERVICE, OR THAT PLATFORM WILL RECEIVE ANY REVENUE DUE TO PLATFORM’S USE OF THE DEVELOPMENT MATERIALS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILTY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND SO PARTS OF THE ABOVE LIMITATION MAY NOT APPLY.
20. Limitation of Liability
NEITHER PARTY (NOR ITS DISTRIBUTORS NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR EVEN IF FORESEEABLE. EXCEPT FOR LIABILITY ARISING UNDER SECTION 21 (INDEMNIFICATION), THE LIABILITY OF EITHER PARTY FOR ANY AND ALL CAUSES, WHETHER ARISING OUT OF NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE, SHALL, IN THE AGGREGATE, NOT EXCEED THE AMOUNT OF FEES RECEIVED BY WEPAY UNDER THIS AGREEMENT (NET OF CARD NETWORK AND OTHER THIRD PARTY FEES INCLUDING, WITHOUT LIMITATION, INTERCHANGE AND ASSESSMENTS) FOR THE TWELVE (12) CALENDAR MONTHS PRECEDING THE TORT, BREACH OR OTHER EVENT GIVING RISE TO THE ALLEGED CAUSE OF ACTION. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH IS A FUNDAMENTAL BREACH, OR WHETHER ANY WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
Platform shall have no obligation to indemnify, defend or hold harmless WePay to the extent a Claim arises from, or is due to: (1) Claims alleging that the Service or the Development Materials infringe any third party intellectual property rights, (2) WePay’s breach of its data security obligations herein with respect to the Service or the Development Materials, or (3) WePay’s negligence or willful misconduct.
22. Governing Law and Venue
This Agreement will be governed by and interpreted in accordance with the internal laws of the state of New York. Disputes relating to this Agreement will be resolved by a court of competent jurisdiction in the State of New York and you agree to submit to this jurisdiction. This section does not prevent us from starting proceedings in a court or tribunal of any state with jurisdiction, including concurrently in any number of states.
23. Assigning this Agreement; Change of Control
We must agree in writing before you transfer or assign this Agreement (including by operation of law or merger). Without our consent, such transfer or assignment is void and may result in us immediately terminating the Agreement. Where we do agree, an assignee or transferee is subject to this Agreement and the obligations and liabilities you owed to us before the date it is transferred or assigned.
We can at any time assign or transfer this Agreement, in whole or in part, or any or all of our respective rights and obligations under this Agreement.
You will give us notice at least 60 calendar days before you sell all or substantially all of your assets, or a person becomes a beneficial owner with more than 50 percent of the combined voting power of your ownership interests, or acquires voting control. You will give us information we request about a major asset sale or ownership change.
24. Third Party Services and Links to Other Web Sites
25. Amendment of Agreement
We have the right to change the terms of this Agreement at any time with notice that we in our sole discretion deem to be reasonable in the circumstances, including posting the revised Agreement on WePay Partner Center. Any use of the Platform Account or Development Materials after such notice or posting shall constitute your acceptance of this Agreement as modified.
26. Force Majeure
We are not liable to you for not carrying out, or delaying performance of, any actions caused by an act of God, a government authority, any Card Network, the ACH, a legal or regulatory requirement, a catastrophe, war or terrorism, civil or labor disturbance, fire, flood, other natural disaster, or any other cause beyond our reasonable control.
27. Other Provisions
Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you and WePay, and they describe the entire liability of WePay and your exclusive remedy with respect to your access and use of the Platform Account and the Development Materials. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. WePay’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement shall survive and remain in effect in accordance with its terms upon the termination of this Agreement.