Terms of Service
Last Revision Date: January 31, 2023
Mercoa Inc. d/b/a Mercoa (“Mercoa”) enables business-to-business payments. These Terms of Service (the “Agreement”) are a legal agreement among Mercoa, and you and any person or organization for which you act. This Agreement governs your use of our website located at www.Mercoastg.wpengine.com and the associated software and services (collectively the “Services”). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING ANY Mercoa SERVICES. If you do not agree to this Agreement, do not use the Services.
This Agreement provides that all disputes between you and Mercoa 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 26 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any dispute with Mercoa.
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 Mercoa. Please note that each of Evolve and SVB may also enforce any provisions of this Agreement that relate to the banking services or payment processing that they provide. Any reference to Mercoa, Evolve, 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.
Mercoa 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: email@example.com.
3. Overview Of Mercoa Services
Description of the Services.
- Mercoa provides Services which generally enable United States-based businesses and freelancers (“Payors”) to transmit payments for commercial purposes to United States-based business recipients (“Recipients”), including Recipients who do not accept a Payor's preferred payment method, (collectively “Users”). Payors may capture a Recipient invoice using their mobile device, upload an invoice electronically, import an invoice from various accounting software, or enter in invoice details manually. Such information may be used to generate a bill which can then be synched with various accounting software. Mercoa may also partner with Recipients to facilitate their receipt of funds and crediting of customer accounts. Recipients may generate and upload invoices through the Mercoa Services to request payment from Payors, Recipients may request payment from Payors without uploading invoices, and Recipients may also request payment from payors that have not registered for Mercoa's Services. For access to and use of the Services, Mercoa may charge Users a fee (the “Fee”) at the time of Payment submission.
- Accepted Payment Methods. Mercoa enables Users to transmit payments to Recipients via automated clearinghouse (“ACH”). Recipients may receive payments via paper check or ACH transfer.
- Mercoa uses Moov to facilitate ACH and Card payments. By using Mercoa services, you agree to the Moov Terms of Services.
- Mercoa 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, American Express, Discover, STAR, PULSE and Accel.
- Payments to Recipients (other than Fees) do not pass into Mercoa's legal ownership at any time from payment initiation to successful delivery, including any subsequent refunds.
- Mercoa 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 of Mercoa. You grant Mercoa the right to instruct the Banks on the use of funds in the accounts, including to receive funds from you and to then send funds to your Recipient based on your instructions. The Banks transfer all funds for the benefit of Mercoa's customers upon Mercoa's instructions.
An Independent Third-Party.
- Mercoa is an independent, third-party service that is not formally affiliated with your Recipients. You acknowledge and agree that your use of the Services does not in any way constitute a tri-party agreement between you, Mercoa, and your Recipients.
- Accordingly, neither Mercoa nor the Banks have responsibility nor will have liability for any consequences resulting from your interactions or contracts with Recipients, including but not limited to payment terms, the proper and timely delivery of goods or services, and any associated disputes which may arise. You further acknowledge that your use of Mercoa Services does not alter or affect any Recipient payment terms including but not limited to deadlines, payment plans, late fees, and refunds. Neither Mercoa nor the Banks endorse, recommend, or bear any responsibility or liability for any products, services or statements presented by Recipients.
Recipient statements and opinions are not representative of Mercoa or its business partners.
4. Eligibility And Setting Up Your Account
- 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 at a Mercoa-supported bank or payment card issued on a Mercoa-supported network as outlined in Section 3.3 above. Other restrictions may apply.
- Creating an Account. In order to access the Services as a User, 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 may 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. Mercoa is not liable for any loss or damages caused by your failure to maintain the confidentiality of your Account credentials.
- Multiple Users. You as a User may invite additional persons to transact on your account (each, an “Authorized Delegate”). Authorized Delegate are granted the right to access and use the Services on your behalf. You may impose certain controls or limits on your Authorized Delegate's access to the Services, including, but not limited to, setting maximum transaction amounts for an Authorized Delegate or requiring User approval for certain transactions. You are responsible for all actions and omissions of your Authorized Delegates. Any act or omission by any Authorized Delegate, which, if it were an act or omission by you would be a breach of this Agreement, shall be deemed to be a breach of this Agreement by you. You will manage your roster of Authorized Delegates and will promptly deactivate the Authorized Delegate if you wish to terminate the Authorized Delegate's access to the Services. You will ensure the security and confidentiality of your Account and will use commercially reasonable efforts to prevent unauthorized access to or use of the Services. You shall be responsible for all costs, fees, liabilities, or damages incurred through any access to or use of the Services through your Account.
- Multiple Organizations. Mercoa may enable certified public accountants, bookkeepers or others (“Accountants”) to utilize the Services on behalf of multiple business clients (“Clients”). Any Accountant who enrolls in the Services represents, warrants and covenants that it has express authority from each Client to transact through the Services using any Client payment methods linked to the Services and shall provide written documentation of such authority upon Mercoa's request. Accountants remain fully responsible for any and all activities associated with Client payment methods, including without limitation, any chargeback, clawback or ACH return associated with a linked payment method.
- You authorize Mercoa, 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 Mercoa cannot verify your or your business' identity, Mercoa reserves the right to deny you use of the Services or to limit your use of your Account.
- If you as a Recipient receive, in a calendar year (1) more than $20,000 in payments made through the Services; or (2) more than 200 individual transactions through the Services, you agree to provide Mercoa with your taxpayer identification number.
Linking a Payment Method
- Payment 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 Mercoa 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 Mercoa to debit your Bank Account for the amounts of the two (2) micro deposits within ten (10) business days.
- Payment Method Representations. When you add a payment method to your Account, you agree to the following:
- You have the authority to disclose the payment 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 payment method must comply with the provisions of U.S. law;
- Your authorization will remain in effect until not later than thirty (30) days after Mercoa receives written notice from you of your desire to cancel; and
- You will not use the Services for personal, family, or household purposes;
5. Mobile Invoice Capture
The Services may enable you to upload an invoice using the camera on your mobile device or computer (the “Remote Capture Service”).
- Image Quality. The image of an invoice transmitted using Remote Capture Service must be legible and clear. It must capture all pertinent information from the front of the item. You authorize us to convert items to Image Replacement Documents (“IRDs”) or transmit them as an image. If the electronic files and/or images transmitted to us with respect to any item do not comply with our requirements for content and/or format, we may, in our sole discretion:
- Further transmit the item and data in the form received from you;
- Repair or attempt to repair the item or data and then further transmit it;
- Process the item as photocopies in lieu of originals; or
- Return the data and item to You unprocessed.
- Remote Capture Minimum Hardware and Software Requirements. In order to use the Remote Capture Service, you must obtain and maintain, at your expense, compatible hardware and software including but not limited to an Internet connection and either a mobile phone or computer capable of capturing an electronic image.
6. Making Payments Through The Services
- Payment Submission. Payments can be submitted for immediate or future processing via the Services. Payment submission requires at least the following to be specified:
- a Recipient;
- a payment method;
- a payment amount; and
- your invoice number.
- Payment Information. Mercoa may require additional information from you at the time you submit a payment. This may include, but is not limited to, requesting additional documentation related to a specific payment or additional details regarding the designated Recipient or the payor.
- Satisfactory Goods or Services. By submitting your payment for processing through the Services, you agree that the goods or services provided by your Recipient 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 Mercoa in exchange for your payment of fees.
- Processing Payments
- Payments made through the Services require sufficient time for your Recipient to receive your payment and credit your account accordingly. To make a payment, use the Services to select the date (“Process Date”) on which Mercoa (or its business partners) will debit your payment method to pay a bill or an invoice. The Services will indicate the earliest possible Process Date for each payment. We will use commercially reasonable efforts to issue payment within one to two business days following the Process Date, depending on the size of the payment and subject to “payment review,” as described in Section 9 below.
- You will be solely responsible for scheduling payments and selecting a Process Date for each payment that allows 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 deliver 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 Mercoa's historical performance for a given disbursement channel, and is subject to change.
- Payments 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, Mercoa and the Banks will be unable to continue to process your payment, and Mercoa will notify you via the Services.
If you choose to pay a Recipient from Mercoa's Business Network, you acknowledge and agree that you are solely responsible for selecting and paying the correct Recipient. Mercoa will have no liability or responsibility if you select or pay the incorrect Recipient.
- Scheduled Payments
- 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 15.1), and reiteration of any applicable payment review processes (per Section 9).
- Faster Payments. Mercoa may make available to approved Payors and/or Recipients a service that enables such Payors and/or Recipients, as applicable, to request that certain eligible payments be delivered more quickly (“Faster Payments”). Faster Payments may be subject to an additional fee which will be displayed to an approved Payor and/or Recipient, as applicable through the Services at the time such Payor and/or Recipient requests a Faster Payment. In connection with Faster Payments, Payors or Recipients, as applicable, remain responsible to Mercoa for chargebacks, clawbacks and ACH returns pursuant to Section 13. Please note that we may disable the Faster Payments service for any payment at any time at our discretion based on eligibility requirements, and we will not charge you a fee if we do so. We do not guarantee the availability of the Faster Payment service, and we may make changes to the service or discontinue it at any time.
- Recipient-Paid Fees. In some cases, Recipients may choose to absorb Fees that may be charged to Payors, thus allowing Payors to make payments to Recipients for free. If you as a Recipient choose to pay for Payor Fees, Mercoa will charge the relevant Payor Fees to your linked payment method at the time that Mercoa delivers the Payor payment amount to you. Note, however, that your payment for Payor Fees shall be processed as a separate transaction.
- International Payments. If you are eligible, you may make payments to Recipients located in certain eligible foreign countries (“International Payments”). Certain International Payments services are provided by The Currency Cloud Limited. Mercoa may change, at any time, for any reason, the eligible countries to which you may request payments to be made using the International Payment service. Mercoa may refuse any payment transaction requested or initiated through the International Payments service, for any reason.You understand and agree that, for certain International Payments, you may not be able to select or schedule a future Process Date. We will provide you with an estimated delivery date for your International Payment when you instruct us to make the payment, but you understand and agree that actual delivery date may vary. It is your sole responsibility to ensure that payment to your Recipient is made as required by agreement, contract or law.International Payments may be subject to other fees (including but not limited to processing fees, landing fees and intermediary fees which may be charged by your bank, a correspondent bank or any other payment provider used to enable the payment).You understand and agree that International Payments may be governed by rules of payment networks used to process such payments, OFAC regulations, and may be subject to the laws of jurisdictions outside the United States, including the jurisdictions where the Recipients are located. The International Payments Service cannot be used, directly or indirectly, to facilitate payments to OFAC sanctioned countries or to SDNs which are both prohibited by U.S. law.You may be required to provide us with additional information and documents prior to or in connection with using the International Payment service, including information or documents requested by the Recipient's bank or by The Currency Cloud Limited. The information requested is required for purposes of provision of our service in compliance with applicable laws and regulation and may be used in conjunction with other information we have in connection with your use of the Mercoa Services. Failure to provide such requested information may result in us denying your use of the International Payment service. All information you provide us must be accurate and complete. In addition, International Payments may be declined by Mercoa, Mercoa's third party providers and/or the Recipient's bank for compliance reasons, and Mercoa shall have no liability to you or to the Recipient in such case.
Please note that payments made by you using the International Payment Service are non-refundable to you by Mercoa and are non-reversible. If you inadvertently make a payment to the wrong Recipient, you may request that we assist you in reclaiming the funds; however, we cannot guarantee that the reclamation efforts will be successful. Such reclamation efforts may also take up to several weeks or longer. Mercoa will not be responsible for any such payments made by you as aforesaid. If you made a payment to the wrong Recipient or wrong bank account, such funds may not be sent back to Mercoa and you will not be able to refund funds transferred into a bank account and/or payment instrument as aforesaid.
Communications Regarding Mercoa's Business Network and Virtual Card Payments. When you use the Services, you authorize Mercoa to contact your Recipients to determine their ability to accept virtual card payments and/or to enroll such Recipients in Mercoa's Business Network. You represent and warrant to Mercoa that you have the right to permit Mercoa to contact your Recipients for this purpose. You acknowledge that your Recipients may already be enrolled in Mercoa's Business Network, in which case Mercoa will make payments to such Recipients in accordance with their payment preferences, regardless of the payment method you choose to deliver funds to such Recipient. Once a Recipient becomes part of Mercoa's Business Network, such Recipient will continue to be part of Mercoa's Business Network and receive payments in accordance with such Recipient's preferences until such Recipient notifies Mercoa that it would like to receive payments in another manner or until Mercoa removes such Recipient from Mercoa's Business Network.
7. Payment Authorization
- General Payment Authorization
- By providing us with the names and account information of Recipients to whom you wish to direct payments, you authorize us and the Banks to follow the payment instructions that are received from you. In order to process payments more efficiently and effectively, the Banks, at Mercoa's instruction, may submit payments to the best known Recipient address. When necessary, the Banks, at Mercoa's instruction, may alter payment data or data formats or change or reformat your Recipient account number to match the account number or format required by your Recipient for electronic payment processing.
- When Mercoa or the Banks receive a payment instruction, you authorize each such party to debit your payment method and remit funds on your behalf. You also authorize Mercoa or the Banks to credit your payment method for payments returned to us by the Post Office or Recipient, or payments remitted to you on behalf of another authorized user of the Services.
- ACH Authorization. Where you choose to pay a Recipient via ACH, you authorize Mercoa or the Banks to debit your payment method in increments or as a lump sum and remit funds in accordance with your payment instructions through the ACH. You also give Mercoa or the Banks the right to resubmit any ACH debit that is returned for insufficient or uncollected funds, or any other reason. You 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 you are an “Originator”, Mercoa is a “Third Party Service Provider,” and the Banks are the “Originating Depository Financial Institutions.” You are responsible for all claims, demands, losses, liabilities and expenses (including attorneys' fees and costs) that result directly or indirectly from your failure to perform your obligations under the NACHA rules and you indemnify Mercoa and the Banks for the same.
8. Transaction Classification
- Cash Advances. Mercoa will prepare and submit credit card authorizations as purchases rather than cash advances. However, in some cases where Mercoa does not have an existing relationship with the merchant, your credit card transactions may be treated as a cash advance. If this is the case, we cannot support such payment. We will notify you prior to payment submission, and you may switch to a different card or opt out of the submitting the payment altogether.
- Authorizations. Treatment of Mercoa authorizations is managed in the sole discretion of the issuing banks. You agree to not to hold Mercoa or the Banks liable for any consequences resulting from issuer treatment of card authorizations, which may include but are not limited to cash advance fees, impacted reward program earnings, or altered credit programs and interest rate terms.
9. Payment Review
- Review. At any time post submission, your payment may be subject to review, which serves to better understand the nature of and reason for your payment. During this review process and for any reason, Mercoa or the Banks may place a temporary hold on the delivery of your payment for as long as reasonably required to conduct an appropriate inquiry regarding you, the Recipient, your business, a bill, payment history, and other relevant circumstances and factors.
- Cooperation. You acknowledge that Mercoa's ability to efficiently and effectively review your payment is reliant upon your cooperation, and you absolve Mercoa and the Banks from any negative impacts to the delivery of your payment arising from delayed, incomplete, or insufficient responses to our inquiries.
- Result of Payment Review. Depending on the results of this review, Mercoa may instruct the Banks to clear the payment, reverse the payment, or hold the payment pending instructions from a government agency. Mercoa also reserves the right to cancel any payment. In such cases and as permitted by applicable law, your funds will be returned to you via the original payment method, or if necessary via other means.
10. Returned Transactions
Recipients or the United States Postal Service may return payments for various reasons such as, but not limited to, Recipient's forwarding address expired, invalid bank routing number, invalid bank account number, Recipient remittance address is not correct, Recipient is unable to identify an account, or a Recipient account is paid in full. In addition, a Recipient may refuse to accept a payment, and neither Mercoa nor the Banks will have liability for any resulting loss or damage. Mercoa will use commercially reasonable efforts to provide you with notice of returned payments and will offer you through the Services the choice whether to void and credit or void and reissue the payments. You agree that neither Mercoa nor the Banks shall have any liability for any such returned payments. Unless otherwise directed, Mercoa will void such payments. You hereby authorize Mercoa or the Banks to credit such payments to your payment method.
11. Insufficient Funds
You agree at all times to maintain sufficient funds in your payment method to satisfy all obligations including returns, reversals, and associated fees, and to add funds immediately if Mercoa notifies you that your funds are insufficient. Without limiting any other available remedies, if any payment initiated from your payment method is returned because of insufficient funds, you must reimburse Mercoa (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. Mercoa or the Banks also reserve the right to debit a Recipient's account for money paid to the Recipient on your behalf if your payment is returned because of insufficient funds or any other reason. Mercoa reserves the right to withhold funds from a payment to a Recipient if the Payor has an outstanding balance with Mercoa. You shall be solely responsible for all penalties, interest charges, late payment fees and service fees resulting from such a debit to the Recipient.
12. 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 Mercoa or the Banks have begun processing a payment, it cannot be cancelled, rescheduled or modified, and you must submit a stop payment request.
In the event that you as Payor initiate a chargeback, clawback, or ACH return for a payment that has already been transmitted to the Recipient, you agree to assign to Mercoa any claims against your Recipient associated with such chargeback, clawback or ACH return. You further agree that we may contact your Recipient directly to request reimbursement for any payment that has been transmitted to the Recipient and for which you have initiated a chargeback, clawback, or ACH return.
In the event that Mercoa receives a chargeback, clawback or ACH return, you as Recipient authorize Mercoa to debit your Payment Method on file for the amount of the chargeback plus any associated fees or to withhold funds from future distributions.
14. Stop Payment Requests And Refunds
- Stop Payment Requests. Mercoa's ability to process a stop payment request depends on the payment method and whether or not a check has been cleared.Mercoa and the Banks must have a reasonable opportunity to act on any stop payment request after a payment has been processed.You must contact Mercoa to stop any payment that has already been processed. Although Mercoa will use commercially reasonable efforts to accommodate stop payment requests, neither Mercoa nor the Banks will have any liability for failing to do so. Stop payment requests may be subject to additional charges.
- Payment Refunds
- In certain situations following a payment submission, you may request a refund by contacting Mercoa at firstname.lastname@example.org. The availability of refunds and processes for their execution are dependent on the disbursement channels by which payments are delivered to Recipients. Mercoa is unable to issue partial refunds of payments. More specific information is provided below in Sections 14.3 and 14.4.
- Mercoa is also unable to initiate refunds in cases where a Recipient has already received your payment. If this is the case, you should contact your Recipient directly to request a refund, pursuant to their payment terms and refund policies.
- In the event that Mercoa issues a payment refund, Mercoa will generally refund a proportional amount of the Mercoa Fee to you, less any unrecoverable costs Mercoa or Evolve may incur; however, Mercoa will not refund any portion of the Mercoa Fee when you use an American Express card to fund your payment. In addition, if you effect a payment refund via clawback or chargeback mechanisms, Mercoa will not refund any portion of the Mercoa Fee.
- Refunds for Electronic Payments. Mercoa may refund electronic payments, including those delivered via Electronic Fund Transfer (“EFT”), ACH and card network providers, prior to their disbursement.
- Refunds for Check Payments
- Mercoa may refund payments disbursed via check prior to their deposit by your Recipient. If Mercoa has already sent a check, we may place a “stop payment” request to ensure it cannot be deposited. In such cases, we suggest that you contact your Recipient to let it know not to deposit the stopped check.
- If your Recipient attempts to deposit a stopped check, it may be charged a fee from its bank for the exception, which it may attempt to assign to you. You accept the responsibility of notifying your Recipient to not deposit your check, and you agree not to hold Mercoa or the Banks liable for any costs you may incur from your Recipient in such a case.
15. Mercoa Fees
- Service Fees.
- You understand and agree that Mercoa may charge Fees for access to and use of the Mercoa Services. Fees will be charged to your payment method, either in a separate transaction from any principal payments or in a single transaction including both amounts, depending on applicable rules.
- Fees for immediately processed payments are charged in real-time upon submission. Fees for Scheduled payments are locked in at time of submission and will be charged on the payment's Process Date. If a Scheduled payment is edited prior to its Process Date, the applicable Fee will be recalculated based on the presently defined rules.
- Fee Updates. Fees may vary, depending upon factors including but not limited to the payment's Recipient, the payment method, and other variables both which may or may not be controlled by Mercoa. Fees are subject to change at any time without prior notice and are calculated in real time and presented to you during review of your payment, prior to submission or edit.
16. APPLICABLE TAXES AND PENALTIES
- Taxes. You are responsible for all, if any, applicable taxes arising from your use of the Services. You are furthermore responsible for all fees, fines, penalties and other liability incurred by Mercoa, yourself, or a third party caused by or arising out of your breach of this Agreement, and/or your use of the Services. You agree to reimburse Mercoa or a third party for any and all such liability.
- Collection of Funds Owed. In the event that you are liable for any amounts owed to Mercoa or the Banks, including for payments forwarded to Recipients for which you initiate a chargeback or ACH return, you authorize Mercoa (on its own behalf and on behalf of the Banks) to collect such amounts from your default payment method or other available payment methods. If you do not have sufficient funds available to fulfill such payment, Mercoa (on its own behalf and on behalf of the Banks) may engage in collection efforts and/or other legal actions to recover such amounts from you.
17. Applicable Use
- Restricted Activities. You agree not to use the Services for the following purposes:
- For unsupported transfers, including sending money
- 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;
for payroll and/or salary payments
- 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);
- payment for debt that has been charged off as uncollectible;
- providing credit or loans, including payday loans;
- illegal drugs (real or synthetic);
- psychics and fortune tellers;
- sale and exchange of currency, including digital and crypto-currencies, and cryptographic assets such as non-fungible tokens;
- multi-level marketing or pyramid schemes;
- software or other technology developed to weaken industry security controls such as malware, spyware, virus, back-door, drop dead device or other similar program installation;
- payments in connection with the cannabis industry: cannabis (including hemp and marijuana) and related businesses and products;
- 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;
- pharmaceuticals, supplements and related goods or services;
- pornography, obscene materials, and sexually-related or “adult” services; weapons (including without limitation, knives, guns, gunpowder or ammunition), 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 Mercoa, 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 Recipients, 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 Mercoa
- To pay wine and spirit wholesalers in the State of New York using a credit card.
- 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 email@example.com.
- Mercoa may request more information relating to your use of the Services to seek to identify the restricted activities identified in Section 17.1 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, Mercoa 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 Mercoa 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, Mercoa will provide you with notice of any such actions.
- Using an American Express card as a payment method is limited to payments made to Recipients in certain permitted industries. Users may not use their American Express card as a payment method to pay Recipients in non-permitted industries, and must select their Recipient's industry when making a payment using an American Express card. When a User selects the Recipient's industry, the User acknowledges and agrees that the payment the User is making is for such Recipient's industry as selected by the User and is permitted by American Express.
The use of American Express cards is only supported in the following industries:
- Membership Clubs
- Professional Services
- Business Services
18. Third Party Services And Links To Other Websites
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.
19. Limitation Of Liability
IN NO EVENT SHALL Mercoa, OUR SUPPLIERS AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENTS, SUBSIDIARIES, AFFILIATES, BENEFICIARIES, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, THE “Mercoa 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 Mercoa 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 Mercoa 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. FOR TEXAS AND VERMONT RESIDENTS ONLY, EVOLVE SHALL BE LIABLE FOR ITS FAILURE TO REMIT FUNDS RECEIVED BY Mercoa PURSUANT TO PARAGRAPH TWO OF SECTION 3.4 TO RECIPIENTS IN COMPLIANCE WITH YOUR INSTRUCTIONS; PROVIDED, HOWEVER, THE TOTAL LIABILITY SHALL NOT EXCEED THE AMOUNT OF THE FUNDS TRANSFERRED TO Mercoa BY YOU. SUBJECT TO THE PRECEDING SENTENCE WITH RESPECT TO EVOLVE, 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 Mercoa Parties shall be limited to the greatest extent permitted under applicable law.
20. Disclaimer Of Warranties
- THE Mercoa 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 Mercoa 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 Mercoa 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, Mercoa, THE BANKS, OR ANY THIRD PARTY.
- Neither Mercoa nor the Banks have any control over the products or services that are paid for using the Services and Mercoa nor the Banks can ensure that a Recipient you are dealing with will actually complete the transaction or is authorized to do so. Mercoa 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. Mercoa will make reasonable efforts to ensure that requests for electronic debits and credits involving credit cards are processed in a timely manner but Mercoa 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.
You agree to defend, indemnify and hold the Mercoa 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 Mercoa or the Banks pursuant to your instructions, including wage-and-hour law claims; (c) your use of the Mercoa Services or any Bank services; (d) your obligations to pay fees or fines to Mercoa, 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 Mercoa 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).
22. Closing Your Account
You may request the closure of your Account at any time by emailing Mercoa at firstname.lastname@example.org. Mercoa 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 Mercoa.
You may not close your Account to evade an investigation. Any payments processed prior to Account closure will be completed by the Services, except those that may be cancelled following a payment review, per Section 9. All scheduled payments for which you have not yet been debited at the time of Account closure will be considered cancelled.
23. Mercoa's Suspension And Termination Rights
Mercoa, 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 Mercoa reserves the right to terminate the Services at any time. Mercoa will try to notify you in advance, but is not obliged to do so.
24. Consent To Electronic Disclosures
- Consent to Communications. Because the Services are provided electronically, you agree that Mercoa may provide important information electronically. Mercoa will issue the following information and disclosures (“collectively, “Communications”) electronically via the Mercoa Services or via electronic mail (“email”):
- 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.
No Obligation to Provide Paper Communication. Although Mercoa reserves the right to provide Communications in paper format at any time, you agree that Mercoa 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.Withdrawal of Consent. You can withdraw your consent to receive most Communications from Mercoa by emailing us at email@example.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. Mercoa 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 Mercoa 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 Mercoa in its sole discretion. Withdrawing your consent will not affect the completion of pending payments or the validity of completed payments.Requesting Paper Documents. You have a right to receive Communications in paper form. If, after you consent to receive Communications electronically, you would like a paper copy of a Communication we previously sent you, you may request a copy within 180 days of the date we provided the Communication to you. Mercoa will provide paper copies free of charge. Requests to receive any paper copy may be made by mailing a written request to: 53 Wilder St UNIT 202, San Francisco, CA 94131. We will provide a replacement Communication within fifteen (15) business days. In order for us to send you a paper copy of a Communication, you must have a current mailing address on file in your Account.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 Mercoa that you have the means to access, and to print or download, Communications.Consent to Text Messages. By entering into this Agreement or using the SERVICES, you agree to receive TEXT MESSAGES FROM Mercoa AT THE TELEPHONE NUMBER THAT YOU PROVIDE TO US. YOU AGREE THAT TEXTS may be generated by automatic telephone dialing systems. TEXT MESSAGES from Mercoa may include but are not limited to: operational communications concerning your Account or use of the Services, updates concerning new and existing features OF THE SERVICES, AND communications concerning promotions run by us or our third-party partners. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.Withdrawal of Consent to Text Message. If you wish to opt out of promotional texts, you may email firstname.lastname@example.org. You acknowledge that you are not required to consent to receive promotional texts as a condition of using the Services. If you wish to opt out of all texts from Mercoa (including operational or transactional texts), you can also email email@example.com, however you acknowledge that opting out of receiving all texts may impact your use of the Services.
- Your consent to do business electronically and our agreement to do so covers all transactions you conduct through the Service.
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”). Mercoa may, in its sole discretion, decide to incorporate some or all of this Feedback into the website and/or the Services. You hereby grant Mercoa 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 Mercoa the Feedback and that the use of the feedback by Mercoa will not violate, infringe otherwise misappropriate any third party rights.
26. Dispute Resolution And Arbitration
- 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.
- 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 Mercoa PARTIES; (ii) YOU ARE GIVING UP YOUR RIGHT TO HAVE A COURT RESOLVE ANY CLAIM ALLEGED AGAINST THE Mercoa 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 Mercoa AND/OR RELATED THIRD PARTIES.In the event of a dispute, claim, or controversy (“Claim”) between you and Mercoa, 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 Mercoa 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 Mercoa 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 26 shall be non-severable from the remainder of this Section 26.
- 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 335 Madison Avenue, New York, NY 10017, 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 MERCOA 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.
27. Release Of Mercoa And The Banks
If you have a Claim with one or more Recipients or other third parties, you release Mercoa 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.
28. Responsibility For Compliance With Employment Law
To the extent that you use Mercoa to issue checks or payments to independent contractors, you expressly acknowledge and agree that you (not Mercoa 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. Mercoa provides a means for transmitting funds. However, you (not Mercoa and not the Banks) are responsible for complying with all laws pertaining to the classification of independent contractors and payment for their services.
- Complete Agreement. This Agreement together with any other Mercoa documents, policies and/or agreements referenced herein sets forth the entire understanding between you and Mercoa with respect to the Services. The following sections of this Agreement and all other terms which by their nature should survive, will survive the termination of this Agreement: 19 (Limitation of Liability), 20 (Disclaimer of Warranties), 26 (Dispute Resolution and Arbitration), 27 (Release of Mercoa and the Banks), and 29 (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.
- Intellectual Property. “Mercoa”, and all logos related to Mercoa, are either trademarks or registered trademarks of Mercoa or its licensors. You may not copy, imitate or use them without Mercoa's prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Mercoa. You may not copy, imitate, or use them without our prior written consent. All right, title and interest in and to the Mercoa 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 Mercoa and its licensors.
- Force Majeure. Neither Mercoa nor the Banks shall be liable for any issues or delayed performance caused by circumstances beyond Mercoa'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.
- Assignment. You may not transfer or assign any rights or obligations you have under this Agreement without Mercoa's prior written consent. Mercoa reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
- 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.
- No Waiver. If Mercoa 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.
- Contacting Mercoa. Unless otherwise stated in this Agreement, notices, inquiries, and requests to Mercoa should be emailed to firstname.lastname@example.org. Please note that email communications sent to Mercoa for Account-related matters (e.g., late fee reimbursements, refund requests, etc.) must come from the email address listed in your Account. Account-related communications initiated via other channels may require identify verification in order to obtain information or change settings.