Terms of Service

Last Revision Date: January 9, 2024

BY ACCESSING MERCOA'S SERVICES (THE “SERVICES”), INCLUDING THROUGH A MERCOA'S CUSTOMER'S SERVICES, OR BY OTHERWISE INDICATING ACCEPTANCE TO THESE TERMS OF SERVICE VIA AN ONLINE REGISTRATION PAGE, YOU AGREE (A) TO THESE TERMS OF SERVICE (THE “TERMS”) AND (B) THAT YOU ARE AT LEAST 18 YEARS OF AGE AND ARE LEGALLY ABLE TO ENTER INTO A CONTRACT. IF YOU ARE USING THE SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A COMPANY, CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THESE TERMS, AND YOU REPRESENT AND WARRANT THAT YOU HAVE SUCH AUTHORITY. IF THE INDIVIDUAL ACCEPTING THESE TERMS DOES NOT HAVE THE AFOREMENTIONED AUTHORITY OR DOES NOT AGREE WITH THESE TERMS, THEY MAY NOT USE THE SERVICES OR ACCEPT THESE TERMS.

These Terms are entered into between Mercoa, Inc, a Delaware corporation (“Mercoa”) and the entity or person accessing the Services or otherwise indicating acceptance to these Terms (“you” or “your”). The “Effective Date” of these Terms is the earlier of the date you (a) first access the Services or (b) first indicate acceptance to these Terms.

IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND MERCOA THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY THE SECTION TITLED “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.

1. Overview

The Mercoa enables business-to-business payments from payors (“Payors”) to recipients (“Recipients”) as further described at [https://mercoa.com/]. No funds transfers between Payors and Recipients, including payments from Payors to Recipients, pass into Mercoa's legal ownership at any time. The Services use Moov to facilitate payments, as described in the section titled “Third-Party Services.

2. Access to the Services

Subject to your compliance with these Terms, Mercoa grants you a nonexclusive, limited, personal, nonsublicensable, nontransferable right to access and use the Services. You may only use the Services for your internal business purposes and only in accordance with Mercoa's applicable official user documentation (the “Documentation”).

3. Verification;

Payment Method Representations

Verification of You. You authorize Mercoa, directly or through third parties, to make any inquiries Mercoa considers necessary to verify your individual or 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's information against third-party databases or through other sources. If Mercoa cannot verify your individual or business identity, Mercoa reserves the right to deny you use of the Services or to limit your use of the Services.
Payment Method Verification. Mercoa may verify your depository account(s) with the relevant financial institution(s) (each, a “Bank Account”). To do so, a temporary, small authorization charge may appear on your bank statement. You authorizes 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. By adding a payment method, you represent and warrant that you (i) have the authority to disclose the payment method information and to bind the person or organization for which you act; (ii) you authorize the initiation of debit or credit entries, as applicable, to the payment method in accordance with instructions inputted through the Services, and, if necessary, the initiation of adjustments for any transactions debited or credited in error; (iii) you acknowledge that transactions initiated from your payment method must comply with the provisions of U.S. law; (iv) your authorization will remain in effect until not later than thirty (30) days after Mercoa receives written notice from you of its desire to cancel; and (v) you will not use the Services for personal, family, or household purposes.

Payment Method Representations. When you add a payment method, you agree to the following: (i) you have the authority to disclose the payment method information and to bind the person or organization for which you act; (ii) 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; (iii) you acknowledge that transactions initiated from your payment method must comply with applicable laws; (iv) 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 (v) you will not use the Services for personal, family, or household purposes.

4. Your Intellectual Property and Data

For purposes of these Terms, “Your Data” shall mean all Inputs and all data, information or other material provided, uploaded, or submitted by you to the Services. You shall retain all right, title and interest in and to Your Data, including all intellectual property rights therein. You acknowledge and agree that Mercoa may internally use and display Your Data for the purposes of providing the Services to you.

5. Mercoa Intellectual Property

As between the parties, Mercoa retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Mercoa for the purposes of these Terms, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in these Terms. You may (but are not obligated to) provide suggestions, comments or other feedback to Mercoa with respect to the Services (“Feedback”). Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for Mercoa and Mercoa may freely use and exploit such Feedback. In addition, Mercoa may collect and analyze Usage Data (as defined below), and Mercoa may freely use Usage Data to maintain, improve, enhance, and promote Mercoa's products and services without restriction or obligation. However, Mercoa may only disclose Usage Data to others if the Usage Data does not identify you or any natural person. “Usage Data” shall mean data and information about the provision, use, and performance of the Services and related offerings based on your or users' use of the Services.

6. Your Responsibilities

Except as expressly set forth in these Terms, you shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Mercoa product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (viii) bypass any measures Mercoa may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); or (ix) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services (or any information, data or content made available through the Services), whether through use of manual or automated means. You are solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Your Data. You shall ensure (and are solely responsible for ensuring) that you have given all notices, and obtained all rights, permissions and consents, as are necessary to use the Services and to provide Your Data to Mercoa for use as contemplated by these Terms. You are solely responsible for all of your activity in connection with the Services. You shall use the Services in compliance with these Terms and all applicable local, state, national and foreign laws, treaties and regulations and all applicable rules and professional standards in connection with your use of the Services. You shall not use the Services in a manner that is harmful, deceptive, threatening, harassing or obscene or that violates any third-party intellectual property, contractual or other proprietary rights. Except as necessary to use the Services, you shall ensure that Your Data does not contain any of the following categories of sensitive data (a) social security number, passport number, driver's license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), financial information, banking account numbers or passwords; (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords, mother's maiden name, or date of birth; (f) criminal history; (g) any other information or combinations of information that falls within the definition of “special categories of data,” “sensitive data” or “sensitive personal information” or any applicable law or regulation relating to privacy or data protection; or (h) personal information of children under the age of 16. 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 these Terms, and/or your use of the Services. You agree to reimburse Mercoa or a third party for any and all such liability.

7. Third-Party Services

You acknowledge and agree that the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (collectively, “Third-Party Services”), including without limitation through integrations or connectors to such Third-Party Services that are provided by Mercoa. The Services use Moov Financial, Inc. (“Moov”) to facilitate ACH and card payments. By accessing the Services, You hereby agree to be bound by Moov's Platform Agreement available athttps://moov.io/legal/platform-agreement/. The Services use Plaid Technologies, Inc. (“Plaid”) to gather your data from the relevant financial institution(s) in order to link your selected payment method(s). By accessing the Services, you hereby grant Mercoa and Plaid the right, power, and authority to act on your behalf to access and transmit your personal and financial information from the relevant financial institution(s). You hereby agree to your personal and financial information being transferred, stored, and processed by Plaid in accordance with the Plaid Privacy Policy available at https://plaid.com/legal/. Mercoa is not responsible for the operation of any Third-Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third-Party Services. Mercoa does not make any representations or warranties with respect to Third-Party Services or any third-party providers. Unless otherwise indicated by Mercoa, any exchange of data or other interaction between you and a third-party provider is solely between you and such third-party provider and is governed by such third party's terms and conditions.

8. Termination

We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. All provisions of these Terms that by their nature should survive termination shall survive termination, including without limitation accrued payment obligations, ownership provisions, warranty disclaimers, indemnification obligations and limitations of liability.

9. Indemnification

You will indemnify and hold Mercoa and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including without limitation reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, (b) Your Data, or (c) your violation of these Terms.

10. Warranty; Disclaimer

THE SERVICES AND PROFESSIONAL SERVICES (IF ANY) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. Mercoa makes no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Mercoa makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Services.

11. Limitation of Liability

EXCEPT FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS AND FOR YOUR BREACH OF THE SECTION TITLED “RESTRICTIONS,” IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (B) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $1,000.

12. Govering Law; Venue

These Terms and any action related thereto will be governed by the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in the section titled “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Mercoa are not required to arbitrate will be the state and federal courts located in San Francisco, CA, and you and Mercoa each waive any objection to jurisdiction and venue in such courts.

13. Dispute Resolution

Mandatory Arbitration of Disputes. The parties each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Mercoa agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Mercoa are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
Exceptions. As limited exceptions to the subsection titled “Mandatory Arbitration of Disputes” above: (i) Mercoa both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) Mercoa each retains the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of its intellectual property rights.
Conducting Arbitration and Arbitration Rules. Any dispute between the parties related to the subject matter of these Terms will be resolved by binding arbitration in the English language in San Francisco, CA under the rules of JAMS; the decision of the arbitrator will be enforceable in any court.
Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the rules of JAMS, and Mercoa won't seek to recover the administration and arbitrator fees it is responsible for paying, unless the arbitrator finds your Dispute frivolous.
Injunctive and Declaratory Relief. Except as provided in the subsection titled “Exceptions” above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the extent that you prevail or Mercoa prevails on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
Class Action Waiver. YOU AND MERCOA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties' dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.

14. Release of Mercoa

If you have a claim with one or more Recipients or other third parties, you release Mercoa (and its officers, directors, employees and agents) from any and all claims, demands and damages (actual or consequential) of every kind and nature arising out of or in any way connected with such claims.

15. Changes to These Terms

Mercoa reserves the right, in its sole discretion, to update, change or replace any part of these Terms. The most current version of these Terms will be posted on the Services and it is your responsibility to check Mercoa's website periodically for changes. If the changes include material changes that affect your rights or obligations, Mercoa will notify you of the changes by reasonable means, which could include notification through the Services or via email. Your continued use of the Services following the effective date of any changes to these Terms constitutes acceptance of those changes. If you do not agree to the new Terms, then your may not use the Services.

16. Miscellaneous

Entire Agreement. These Terms represent the entire agreement between you and Mercoa with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Mercoa with respect thereto.
Notice. Any notices or other communications provided by Mercoa under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
Amendment; Waiver. Except as otherwise provided herein, no modification or amendment of any provision of these Terms shall be effective unless agreed by both parties in writing, and no waiver of any provision of these Terms shall be effective unless in writing and signed by the waiving party. The failure of either party to act with respect to a breach of these Terms by the other party shall not constitute a waiver and shall not limit such party's rights with respect to such breach or any subsequent breaches.
Force Majeure. Neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party's reasonable control, including without limitation the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; pandemics; epidemics; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
Assignment. Neither party may assign any of its rights or obligations hereunder without the other party's consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party's business relating to these Terms, and (ii) Mercoa may utilize subcontractors in the performance of its obligations hereunder.
Independent Contractors. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect.
Severability. If any provision of these Terms is held to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.
How to Contact Mercoa. Please contact Mercoa at [support@mercoa.com] with any questions or concerns about the Services or these Terms.