Why are you being asked to provide certain information?
Kickfin is a provider of technology products and services and partners with a variety of third parties to offer end-to-end solutions to merchants. Some Kickfin Partners are financial institutions, which means they are governed by laws and regulations applicable to financial institutions, such as anti-money laundering and anti-terrorist financing laws and regulations. It is Kickfin’s responsibility to ensure that its operations meet the requirements established by the applicable Kickfin Partners from time to time to enable such Kickfin Partners to comply with their legal and regulatory obligations.
To assist Kickfin in meeting its responsibilities to the applicable Kickfin Partners, Kickfin requires merchants that desire to access and use products and services provided or otherwise made available by Kickfin to provide certain information and documentation. Kickfin reviews the information and documentation provided as part of Kickfin’s onboarding procedure for merchants and may provide the information and documentation to the applicable Kickfin Partners for their review and approval. The information and documentation provided by a merchant are used to confirm the identity of the merchant’s business and beneficial owners, and to qualify and approve the merchant for access to and use of products and services provided or otherwise made available by Kickfin.
Why is this important?
The procedure outlined above helps Kickfin and Kickfin Partners to prevent money launderers and financiers of terror from using the financial system for illicit purposes.
What type of information will you need to provide?
When Merchant applies to access and use products and services provided or otherwise made available by Kickfin, Merchant must provide the business, banking, accounting, and other information requested in this Application in Schedule A or required to be provided by the Disbursement Agreement attached as Schedule C, respectively, as applicable. Additionally, Kickfin and/or the applicable Kickfin Partners may request additional information from Merchant from time to time, and if requested, Merchant must provide such information.
This Merchant Agreement – Disbursement (this “Disbursement Agreement”) is made and entered into by and between Kickfin and Merchant. Capitalized terms have the meanings set forth in Section 14 of this Disbursement Agreement.
Overview of the Disbursement Services. Subject to Merchant’s compliance with the terms and conditions of the Agreement and the Documentation, Kickfin will provide or otherwise make available to Merchant access to and use of the Kickfin System and related services for the purpose of enabling Merchant to initiate the disbursement of Tips to Payment Recipients in accordance with instructions from Merchant (collectively, the “Disbursement Services”).
Use of Third Parties. Merchant acknowledges that Kickfin is a provider of technology products and services. In order to make available certain aspects of the Disbursement Services, Kickfin has established and relies on relationships with certain third parties, including financial institutions, third-party payment processors, and other third-party service providers (each, a “Kickfin Partner”), to provide or perform those aspects of the Disbursement Services that constitute regulated activity under applicable Law, including with respect to the receipt and transmission of Merchant funds in connection with the Disbursement Services. From time to time, Kickfin Partners may establish certain requirements and expectations that apply to the Disbursement Services (collectively, “Kickfin Partner Requirements”). Accordingly, the Disbursement Services will be subject to all applicable Kickfin Partner Requirements and Merchant will cooperate with any request by Kickfin to the extent such request arises out of or relates to any applicable Kickfin Partner Requirement. Merchant hereby authorizes Kickfin to obtain from any Kickfin Partner, credit reporting agency, or information bureau any information about Merchant related to Merchant’s representatives, name, addresses, credit history, banking relationships, or financial history, and Merchant hereby authorizes each applicable Person to compile and provide to Kickfin any such information.
Territory. Merchant may not access or use the Disbursement Services outside of the United States of America and its territories (the “Territory”).
Generally. Once Merchant has been approved to access and use the Disbursement Services and has executed or otherwise accepted this Disbursement Agreement as required by Kickfin, Kickfin will establish a Kickfin Account for Merchant that Merchant may access and use through the Kickfin System. Merchant’s Kickfin Account will allow Merchant to provide information and data to Kickfin in connection with, and review information and data related to, Merchant’s access to and use of the Disbursement Services. Merchant will ensure that all information, data, and supporting documentation necessary to establish a Kickfin Account for Merchant is provided to Kickfin and that such information, data, and documentation is accurate, complete, authentic, and current. Merchant will ensure that Merchant promptly notifies Kickfin of any change to any information, data, or supporting documentation previously provided to Kickfin.
Access Code. Kickfin will provide Merchant with one or more access codes for Merchant’s Kickfin Account (each, an “Access Code”). Merchant will be responsible for securing and safeguarding any Access Code and for ensuring that there is no unauthorized access to or use or disclosure of any Access Code. Merchant will not disclose any Access Code to any Person other than an employee of Merchant who has a need to know such Access Code in order for Merchant to access and use the Disbursement Services. Merchant will be responsible and liable for any Losses that arise out of or relate to any unauthorized access to or use or disclosure of any Access Code. If Merchant becomes aware of any actual or suspected unauthorized access to or use or disclosure of any Access Code, Merchant will immediately notify Kickfin.
Merchant’s Settings for the Disbursement Services. From time to time, Merchant may have the ability to select or provide certain preferences and specifications within Merchant’s Kickfin Account that will apply to Merchant’s access to and use of the Disbursement Services. Merchant assumes sole responsibility for all preferences and specifications selected or provided by Merchant, even if such preferences or specifications contain any errors or cause any Losses to Merchant. Without limiting the generality of the foregoing, Merchant will be responsible for ensuring that Merchant’s preferences and specifications comply with, and enable compliance with, all applicable Law and Network Rules and Merchant’s agreements with Third-Party Servicers. If Merchant selects or provides any preferences or specifications, then Merchant hereby acknowledges and agrees that Kickfin and any Kickfin Partner may rely on such preferences and specifications without further inquiry.
Access to and Use of the Disbursement Services. Merchant will only access and use the Disbursement Services for the purpose of disbursing Tips to approved Payment Recipients in accordance with applicable Law, the Network Rules, and the terms and conditions of this Disbursement Agreement. Merchant will ensure that no other Person other than the Person named as the legal entity in the Application accesses or uses the Kickfin System or the Disbursement Services.
Connectivity. Merchant will ensure that Merchant has a functioning high-speed and secure internet connection through which Merchant connects to the Kickfin System. Merchant will connect to the Kickfin System in accordance with the Documentation.
Provision of Data and Information. Merchant will provide or otherwise make available to Kickfin all data, information, and supporting documentation requested by Kickfin in connection with the Disbursement Services or the Agreement, and Merchant will promptly notify Kickfin upon any change to such data, information, or documentation. Merchant represents, warrants, and covenants that all data, information, and supporting documentation provided or otherwise made available by or on behalf of Merchant in connection with the Disbursement Services or the Agreement is and will be accurate, complete, authentic, and current and that Kickfin may rely on such data, information, and documentation without further inquiry. In addition, Merchant hereby authorizes Kickfin to obtain from any third party all data and information of Merchant deemed necessary or appropriate by Kickfin in connection with the Disbursement Services or the Agreement, and Kickfin may rely on such data and information without further inquiry. Kickfin will not be responsible or liable for any inaccurate or incomplete data or information obtained from any third party; provided, that, Kickfin will use commercially reasonable efforts to fix any error in such data or information. Merchant will be responsible for collecting, storing, using, and disclosing any data, information, and supporting documentation entered into the Kickfin System, or otherwise provided or made available by or on behalf of Merchant, in accordance with all applicable Law, the Network Rules, and any requirements of any Third-Party Servicer. Merchant agrees that Kickfin may disclose to any Kickfin Partner any data, information, and supporting documentation provided or otherwise made available by or on behalf of Merchant to Kickfin in connection with the Disbursement Services or the Agreement.
Relationship with Payment Recipients.
(i) Kickfin Accounts for Payment Recipients. Merchant will be responsible for causing each Payment Recipient to establish a Kickfin Account and for linking each Payment Recipient’s Kickfin Account to Merchant’s Kickfin Account. Merchant will obtain from each Payment Recipient and provide to Kickfin and any applicable Kickfin Partner all information and data about or related to such Payment Recipient requested by Kickfin or any Kickfin Partner and will obtain all authorizations and consents necessary for Merchant to obtain and disclose such information and data to Kickfin and any Kickfin Partner and for Kickfin and any Kickfin Partner to use and disclose to third parties such information and data as contemplated by the Agreement. Notwithstanding the foregoing, Merchant acknowledges that Payment Recipients will need to provide certain information and data directly to the applicable Kickfin Partners through an inline frame or other solution made available by such Kickfin Partners, and Merchant agrees to cause Payment Recipients to provide such information and data to such Kickfin Partners. Merchant hereby acknowledges and agrees that when a Payment Recipient provides information and data directly to Kickfin or any Kickfin Partner, the Payment Recipient is providing such information and data to Kickfin and such Kickfin Partner on behalf of Merchant. Merchant will be responsible and liable for all activity related to a Payment Recipient’s Kickfin Account.
(ii) Tip Disbursements. Merchant will obtain all authorizations and consents from each Payment Recipient in order for Tips to be disbursed to such Payment Recipient and the related Payment Recipient Account. Merchant will be responsible for ensuring that the amount of each Tip disbursement is accurate and complete and that any hold backs or other deductions from any amounts payable to a Payment Recipient comply with all applicable Law and Network Rules and have been authorized by such Payment Recipient. Merchant will not misuse the fields made available to Merchant through the Kickfin System in connection with hold backs or other deductions. In some cases, Kickfin may provide Merchant with pooled Tip disbursement calculations for multiple Payment Recipients based on various factors, such as total Tips collected and total hours worked by each Payment Recipient, and based on rules established by Merchant and agreed by Kickfin. As between Merchant and Kickfin, Merchant will be responsible for ensuring the accuracy and completeness of all pooled Tip disbursement calculations in the aggregate and in respect of each Payment Recipient.
(iv) Tax Collection and Filing. Merchant acknowledges and agrees that Tips are income for Payment Recipients that obligate Merchant and Payment Recipient to record such income as required under applicable Law and to collect, remit, and provide all applicable taxes and tax forms to the applicable taxing authority. As between Kickfin and Merchant, Merchant will be responsible for the calculation, remittance, and filings with respect to all applicable taxes and tax forms, for the timely filing of payroll tax returns and the timely payment of payroll taxes for its employees, and for any other Merchant activity, and Merchant hereby agrees to perform such responsibilities in accordance with all applicable Law.
(v) Responsibility for Payment Recipients. Merchant will be responsible for the relationship between Merchant and each Payment Recipient, including any employer/employee or business/independent contractor relationship, and for complying with all applicable Law in connection with Merchant’s relationship with each Payment Recipient. Kickfin will have no responsibility or liability to Merchant or any Payment Recipient that arises out of or relates to Merchant’s relationship with Payment Recipients. Without limiting the generality of the foregoing, Merchant will be responsible for providing all support to Payment Recipients in connection with Merchant’s access to and use of the Disbursement Services to disburse Tips to Payment Recipients and will use commercially reasonable efforts to promptly respond to, address, and resolve any issue between Merchant and any Payment Recipient that arises out of or relates to Merchant’s access to and use of the Disbursement Services to disburse Tips to such Payment Recipient. If the relationship between any Payment Recipient and Merchant is terminated, then Merchant will promptly take all action necessary to reflect the change in its relationship with such Payment Recipient, including by updating all applicable information in Merchant’s Kickfin Account.
Monitoring. As between Kickfin and Merchant, Merchant will be responsible for monitoring and evaluating all transactions submitted through the Disbursement Services to ensure Merchant’s compliance with the Agreement. If Merchant identifies any erroneous, fraudulent, duplicate, or otherwise suspicious transaction, Merchant will immediately notify Kickfin of such transaction, will investigate such transaction, will report the findings of such investigation to Kickfin, and will otherwise cooperate with and respond to any requests from Kickfin and any applicable Kickfin Partner in connection with such transaction.
Information Security.
Generally. Merchant will comply with all applicable Law and Network Rules related to the security, privacy, and confidentiality of all of Merchant’s premises and facilities, all Merchant Systems, and all Data. Without limiting the foregoing, Merchant will secure all Merchant’s premises and facilities, all Merchant Systems, and all Data in its possession or under its control in a manner that adheres to customary security standards applicable to Merchant, in a manner that meets the security requirements imposed on Merchant by its Third-Party Servicers, and in a manner that complies with all applicable Law and Network Rules. Kickfin Partners and the Networks may require Kickfin and Kickfin’s merchants, such as Merchant, to provide or otherwise make available certain data, information, documentation, and certifications in connection with their access to and use of the Disbursement Services. Accordingly, at the request of Kickfin, Merchant will provide any data, information, documentation, and certifications requested by Kickfin, including an annual certification validating Merchant’s compliance with its security, privacy, and confidentiality obligations in connection with the Agreement.
Security Incident. Merchant will notify Kickfin within twenty-four hours of any actual or suspected unauthorized access to or use or disclosure of any Merchant System, the Disbursement Services, or any Data, whether such unauthorized access to or use of disclosure originated in or through such Merchant System, the systems of any Third-Party Servicer, or otherwise.
Third-Party Servicers. Merchant acknowledges and agrees that Kickfin will act as a service provider to Merchant in connection with the Disbursement Services. Merchant will not use any Third-Party Servicer to exercise Merchant’s rights or perform Merchant’s obligations in connection with the Disbursement Services or the Agreement without obtaining Kickfin’s prior written consent. Subject to the foregoing, if Merchant uses a Third-Party Servicer in connection with the Disbursement Services or the Agreement, then, as between Kickfin and Merchant, Merchant will be responsible and liable for all acts and omissions of such Third-Party Servicer. Prior to accessing and using the Disbursement Services, Merchant will be responsible for determining whether Merchant is required to notify any Third-Party Servicer or Network of Merchant’s access to and use of the Disbursement Services or Kickfin and for taking all action that is necessary for Merchant to access and use the Disbursement Services or Kickfin.
Representatives. Merchant will be responsible and liable for all acts and omissions of any directors, officers, employees, agents, and representatives of Merchant in connection with the Disbursement Services or the Agreement.
Books and Records; Audit. Merchant will keep and maintain accurate and complete books and records in connection with Merchant’s access to and use of the Disbursement Services and the Agreement. Merchant will allow Kickfin and its designees and any Kickfin Partner to inspect the books and records of Merchant and the Merchant System upon notice to Merchant to verify Merchant’s compliance with the terms of the Agreement. Merchant will cause Payment Recipients to be available for and to cooperate with any audit conducted by Kickfin or its designees or any Kickfin Partner.
Exclusivity. During the Term of the Agreement, Merchant will not procure or use any services of any third party that are the same as, similar to, competitive with, or functional substitutes of the Disbursement Services.
Funding Account.
Generally. Prior to accessing or using the Disbursement Services, Merchant will cooperate with Kickfin and the applicable Kickfin Partner with respect to the bank account to be used in connection with Merchant’s access to and use of the Disbursement Services (the “Funding Account”). The Funding Account will be established by and in the name of the applicable Kickfin Partner, will be owned and controlled by the applicable Kickfin Partner, and will be maintained by the applicable Kickfin Partner for the benefit of one or more of Kickfin’s merchants, including Merchant. Merchant acknowledges and agrees that the Funding Account will be used in connection with the disbursement of Tips in accordance with the instructions provided by Merchant through the Disbursement Services.
Funding Process. Merchant will timely fund the Funding Account and will ensure that Merchant maintains good, available, and sufficient funds in the Funding Account at all times in order to fund the disbursement of Tips in accordance with the instructions provided by Merchant through the Disbursement Services. Kickfin reserves the right to require Merchant to increase the amount of funds in the Funding Account at its sole discretion. Merchant will not submit an instruction for the disbursement of Tips unless the Funding Account has good, available, and sufficient funds equal to or exceeding the amount of such Tips. Merchant acknowledges and agrees that any instruction for the disbursement of Tips may be rejected if it is determined that the Funding Account does not contain good, available, and sufficient funds to fund the disbursement of Tips instructed by Merchant. In addition to Merchant’s other funding obligations under the Agreement, Merchant will fund and maintain in the Funding Account at all times during the Term an amount determined by Kickfin in consultation with the applicable Kickfin Partners based on the dollar amount of Merchant’s rejected or returned ACH transactions. Merchant will be responsible and liable for all rejected or returned ACH transactions and will promptly pay or reimburse Kickfin upon demand. Upon receipt of any rejected or returned ACH transaction, Kickfin will automatically reprocess such rejected or returned ACH transaction the following business day, which Merchant hereby authorizes, and will notify Merchant of the same by email.
Merchant DDA. Merchant will designate a demand deposit account to be used by Merchant to fund the Funding Account (the “Merchant DDA”). Merchant will not change the Merchant DDA without Kickfin’s prior written consent. Merchant represents, warrants, and covenants that it is and will remain the sole owner of the Merchant DDA. If Merchant intends to fund the Funding Account through the initiation of a funds transfer from the Merchant DDA to the Funding Account by Merchant, then Merchant will be responsible for causing the initiation of such transfer to the Funding Account in a timely manner to support Merchant’s access to and use of the Disbursement Services. If Merchant intends to authorize a Kickfin Partner to debit the Merchant DDA for purposes of funding the Funding Account, then Merchant will complete and provide to Kickfin an ACH authorization, in the form attached hereto as Exhibit A, for use by the applicable Kickfin Partner in order for the applicable Kickfin Partner to initiate debits to the Merchant DDA to fund the Funding Account.
Review of Kickfin Account Information. Merchant will examine on a daily basis all statements and information provided or otherwise made available to Merchant relating to Merchant’s activities in connection with the Disbursement Services and the Agreement, including with respect to the disbursement of Tips and Merchant’s Funding Account balance, and will promptly notify Kickfin in writing of any alleged error identified by Merchant, which notice will provide a description of the alleged error, an explanation as to why Merchant believes there is an error, and the cause of the error. Following Kickfin’s receipt of any notice in accordance with the preceding sentence, Kickfin will work in good faith with Merchant in an effort to address the matter.
Kickfin IP. As between Kickfin and Merchant, Kickfin will be the owner of all right, title, and interest in and to all systems, hardware, software, interfaces, equipment, technology, marks, documentation, and other materials owned by or licensed to Kickfin, including the Kickfin System, the Disbursement Services, the Documentation, the Kickfin Marks, and any other intellectual property of Kickfin or its licensors (all of the foregoing, collectively, the “Kickfin IP”). Merchant acknowledges and agrees that there are no implied rights or licenses in or to all or any part of the Kickfin IP and that any rights or licenses not expressly granted by Kickfin under the Agreement are reserved by Kickfin.
Trademark License. Merchant hereby grants to Kickfin a limited, non-exclusive, non-transferable, non-sublicensable license, during the Term of the Agreement, to use, display, and reproduce any Merchant Marks as expressly authorized by this Section 5(b). Kickfin may use, display, and reproduce Merchant’s Marks on Kickfin’s webpages, in Kickfin’s marketing materials and communications, and in Kickfin’s investor and financial presentations and materials for the purpose of identifying Merchant as a user of the Disbursement Services. Merchant will not use, display, or reproduce any Kickfin Marks for any reason without the prior written consent of Kickfin.
License Restrictions. Merchant will not, and will not allow any third party to: (i) access or use, or attempt to access or use, all or any part of the Kickfin IP in a manner that is not expressly permitted under this Disbursement Agreement or for any Prohibited Activity; (ii) use, or attempt to use, the Kickfin IP other than in object code form; (iii) copy, reproduce, republish, upload, post, transmit, resell, or distribute all or any part of the Kickfin IP; (iv) remove, deactivate, or otherwise circumvent any license restrictions or mechanisms intended to limit use of all or any part of the Kickfin IP; (v) create derivative works of all or any part of the Kickfin IP; (vi) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available all or any part of the Kickfin IP to any third party; (vii) modify, or attempt to modify, all or any part of the Kickfin IP; (viii) reverse engineer, disassemble, or decompile all or any part of the Kickfin IP; (ix) remove any Kickfin Marks, proprietary legends, or copyright notices from the Kickfin IP; (x) misuse, damage, disrupt, or impair all or any part of the Kickfin IP or interfere with any other Person’s access to or use of the Kickfin IP; (xi) take, or attempt to take, any action that could interfere with the normal operation and function of all or any part of the Kickfin IP; (xii) act as a service bureau or pass-through agent for all or any part of the Kickfin System or the Disbursement Services; or (xiii) permit any Person to access the Kickfin IP if such Person (1) appears on any list of the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) or any other governmental authority list, including OFAC’s Specially Designated National List and OFAC’s Consolidated Sanctions List, (2) is less than eighteen (18) years of age, or (3) has procured services from Kickfin and has been terminated for cause by Kickfin ((1)-(3), each, a “Prohibited Person”).
Feedback. If Merchant provides to Kickfin any suggestions, comments, ideas, know-how, or other feedback in any form (“Feedback”), then Merchant hereby grants Kickfin a worldwide, royalty-free, non-exclusive, sublicensable, perpetual, and irrevocable license to use, disclose, publish, profit from, and otherwise exploit such Feedback for any purpose.
Fees; Payment. Merchant will pay all Fees in connection with its access to and use of the Disbursement Services. All Fees are due immediately and are non-refundable. Fees not paid when due will accrue interest of the lesser of 1.5 percent per month or the maximum amount allowed by Law starting on the day after such Fees are due and payable. Merchant will pay all Fees using a payment method acceptable to Kickfin and integrated with Merchant’s Kickfin Account.
Taxes. Merchant will pay all federal, state, and local taxes that may apply to the Disbursement Services, which taxes will be in addition to the Fees.
Fees Charged to Payment Recipients. Merchant will disclose to each Payment Recipient in a clear and conspicuous manner all fees, hold backs, or deductions in connection with Merchant’s disbursement of Tips to Payment Recipients.
In addition to any other representations, warranties, and covenants of Merchant, Merchant hereby represents, warrants, and covenants to Kickfin as follows:
Duly Organized and Registered. Merchant is and will remain duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation. Merchant is and will remain properly registered and in good standing as a business in every jurisdiction in which it conducts business.
Duly Authorized. Merchant has the legal capacity to enter into the Agreement and has obtained and will maintain all necessary corporate power and authority to execute the Agreement, to grant the rights under the Agreement, and to exercise its rights and perform its obligations under the Agreement in accordance with the terms of the Agreement, and such execution, grant, exercise, and performance by Merchant does not require any action or consent of, registration with, or notification to, any Person, or any action or consent under any applicable Law to which Merchant is subject.
Authorized Representative. The representative that completes the Application on behalf of Merchant and that executes or accepts the Disbursement Agreement on behalf of Merchant has been duly authorized to do so by all required corporate action.
Legally Binding Agreement. When executed or accepted by Merchant or the representative of Merchant, the Agreement is and will be legally binding upon and enforceable against Merchant and does not and will not conflict with any agreement, instrument, or understanding, oral or written, to which Merchant is a party or by which Merchant is bound.
Authorizations. Merchant has obtained and will maintain all authorizations, consents, permissions, and approvals necessary for Kickfin to exercise its rights and perform its obligations in connection with the Agreement. If a Payment Recipient revokes any authorization, consent, permission, or approval necessary for Kickfin to exercise its rights or perform its obligations in connection with the Agreement, then Merchant will immediately notify Kickfin and each applicable Kickfin Partner of any such revocation.
Information and Data. With respect to any information or data provided or otherwise made available by or on behalf of Merchant to Kickfin or any Kickfin Partner in connection with the Disbursement Services or the Agreement: (i) such information and data are accurate, complete, authentic, and current; (ii) Merchant has obtained all authorizations, consents, permissions, and approvals necessary to provide or otherwise make available such information and data to Kickfin and any Kickfin Partner; and (iii) Kickfin and any Kickfin Partner may access, use, and disclose such information and data as necessary to provide or otherwise make available the Disbursement Services and to otherwise exercise its rights and perform its obligations in connection with the Agreement.
Compliance with Laws. Merchant does and will conduct its business affairs in an ethical manner, in accordance with the terms of the Agreement, and in compliance with all applicable Law and Network Rules. Merchant does not and will not engage in, promote, or facilitate any Prohibited Activities, and does not and will not access or use the Disbursement Services to engage in, promote, or facilitate any Prohibited Activities. Merchant will not take any action, or fail to take any action, that could cause Kickfin or any Kickfin Partner to violate applicable Law or the Network Rules or that could cause Kickfin or any Kickfin Partner to be subject to any fines, penalties, non-compliance assessments, or other similar amounts from any governmental or regulatory authority or any Network.
OFAC Lists. None of Merchant or its employees, independent contractors, Third-Party Servicers, agents, or representatives is a Prohibited Person.
Solely for Business Purposes. Merchant does and will access and use the Disbursement Services exclusively for business purposes.
Instructions. Each time Merchant submits an instruction for the disbursement of Tips through the Disbursement Services, Merchant hereby represents and warrants that: (i) the instruction and the corresponding Tip disbursement have been properly authorized in accordance with applicable Law and Network Rules in order for Kickfin and any applicable Kickfin Partner to initiate and complete such transaction; (ii) the instruction and the corresponding Tip disbursement represent bona fide transactions that comply with all applicable Law and Network Rules, that arise out of a legitimate business transaction and serve a legitimate business purpose, and that is for the purpose of disbursing Tips to the applicable Payment Recipient; (iii) the Person designated as the Payment Recipient in the instruction is an employee or independent contractor of Merchant that has been approved by Kickfin; (iv) the instruction and the corresponding Tip disbursement do not violate, and will not cause Kickfin or any applicable Kickfin Partner to violate, any applicable Law or Network Rules; (iv) the instruction is not a fraudulent or duplicate instruction and the corresponding Tip disbursement will not result in a fraudulent or duplicate transaction; (v) the information and data in the instruction are accurate, complete, authentic, and current information and data; and (vi) Kickfin and any applicable Kickfin Partner may rely and act on the information and data in the instruction and submit and complete any disbursement of Tips.
In addition to Merchant’s other indemnification, reimbursement, and repayment obligations in connection with the Agreement, Merchant will indemnify, defend (at Kickfin’s election), and hold harmless Kickfin and its Affiliates, any applicable Kickfin Partner, and each of Kickfin’s and its Affiliates’ and any applicable Kickfin Partner’s directors, officers, owners, employees, and agents (each, a “Kickfin Indemnified Party”), from and against any and all Losses in connection with any third-party claim, cause of action, or demand arising out of, relating to, or alleging: (a) any breach of any term, condition, obligation, representation, warranty, or covenant of the Agreement by Merchant; (b) any act, omission, or matter for which Merchant is responsible under the Agreement; (c) any inquiry, enforcement action, or other action or process by any governmental, regulatory, or judicial authority with respect to Merchant’s or any Payment Recipient’s access to or use of the Disbursement Services; (d) any negligent, willful, fraudulent, or criminal act or omission by Merchant or any Payment Recipient; (e) any relationship or agreement between Merchant and any Payment Recipient (which will include any claim, cause of action, or demand asserted by a Payment Recipient against any Kickfin Indemnified Party), any Third-Party Servicer, or any other third party; (f) any misuse of the Disbursement Services by Merchant or any Payment Recipient; (g) any infringement, misappropriation, or other violation of any intellectual property rights of any third party by Merchant; and (h) any unauthorized access to or use or disclosure of any Merchant System, the Kickfin System, or Data experienced by Merchant.
Term. The initial term of the Agreement will begin as of the date the Agreement is executed or otherwise accepted by Merchant and is executed or otherwise accepted by Kickfin and will continue in effect on a month-to-month basis following the date on which the first disbursement of Tips by Merchant to a Payment Recipient through the Kickfin System is successfully processed and completed on a non-test basis (the first month hereafter, the “Initial Term”), subject to Section 9(c). Upon the conclusion of the Initial Term, the Agreement automatically will renew for successive monthly periods (each, a “Renewal Term”) unless either Party provides the other Party with notice of its intent not to renew at least 30 days prior to the end of the Initial Term or the then-current Renewal Term, as applicable. The Initial Term, together with each Renewal Term, collectively may be referred to as the “Term.”
Termination by Either Party. Either Party may terminate the Agreement upon 30 days’ written notice to the other Party if the other Party materially breaches the Agreement and does not cure such breach within 30 days following the delivery of notice of such material breach by the non-breaching Party. Notwithstanding the foregoing, Kickfin may terminate the Agreement immediately upon notice to Merchant if Merchant fails to (i) pay any Fees to Kickfin in accordance with Section 6 or (ii) fund the Funding Account in accordance with Section 4(a).
Termination Prior to the End of the First Month of Service. Merchant may terminate the Agreement prior to the end of the month in which the first disbursement of Tips by Merchant to a Payment Recipient through the Kickfin System is successfully processed and completed on a non-test basis pursuant to Section 9(a) upon notice to Kickfin.
Suspension or Termination by Kickfin. Notwithstanding anything to the contrary in Section 9(a), Kickfin may suspend or terminate the Disbursement Services or the Agreement upon notice to Merchant in the event: (i) Merchant fails to provide any information, data, or supporting documentation requested or required by Kickfin or any Kickfin Partner within the time frames requested or required by Kickfin or such Kickfin Partner pursuant to Section 4(c); (ii) unless otherwise agreed by Kickfin and Merchant in writing, Merchant fails to (A) maintain a Funding Account, (B) maintain good, available, and sufficient funds in the Funding Account as required under the Agreement or (C) cause the initiation of a transfer of funds to the Funding Account in a timely manner; (iii) Merchant fails to promptly pay any amounts due in connection with the Agreement; (iv) Merchant experiences a high rate of rejected or returned ACH transactions, as determined by Kickfin; (v) any Kickfin Partner or Network directs Kickfin to suspend, terminate, or limit Merchant’s access to or use of the Disbursement Services; (vi) any Kickfin Partner discontinues or modifies its support for the Disbursement Services in a manner that makes the continued provision of the Disbursement Services impracticable; or (vii) Kickfin reasonably determines that Merchant or any Payment Recipient poses any unacceptable legal, fraud, or operational risk to Kickfin.
Effect of Expiration or Termination. Notwithstanding the expiration or termination of the Agreement, Merchant will be responsible and liable to Kickfin for all Fees and other amounts accrued prior to the expiration or termination of the Agreement. Upon the expiration or termination of the Agreement, Merchant immediately will cease all access to and use of the Disbursement Services and will no longer be entitled to access or use the Disbursement Services or Merchant’s Kickfin Account. Merchant will be responsible and liable for all Tip disbursement instructions submitted prior to or at the time of the expiration or termination of the Agreement. If the Agreement is terminated by Merchant, then Merchant will be responsible for all costs and expenses associated with the termination of the Agreement.
Kickfin Data. As between Kickfin and Merchant, Kickfin will have all right, title, and interest in and to Kickfin Data and will not be subject to any restrictions under the Agreement with respect to such Kickfin Data.
Merchant Data. As between Kickfin and Merchant, Merchant will have all right, title, and interest in and to Merchant Data and will not be subject to any restrictions under the Agreement with respect to such Merchant Data.
Services Data. As between Kickfin and Merchant, Kickfin will have all right, title, and interest in and to Services Data and will not be subject to any restrictions under the Agreement with respect to such Services Data. The parties acknowledge that the definitions of Merchant Data and Services Data may include one or more of the same data elements. Accordingly, to the extent any Merchant Data also falls within the definition of Services Data, each party may use and disclose such data in accordance with the rights and restrictions applicable to such party under the definition pursuant to which such data is used or disclosed.
Privacy Policy. Kickfin’s privacy policy sets forth the purposes for which Kickfin may collect, use, retain, and disclose certain data in connection with the Disbursement Services. Merchant agrees that Kickfin may collect, use, retain, and disclose data to the extent not prohibited by applicable Law or Kickfin’s privacy policy.
Definition. For the purposes of the Agreement, “Confidential Information” means (i) any proprietary information of the disclosing party, including trade secrets, software, object code, source code, file specifications, installation and operating instructions, end-user manuals, end-user agreements, training materials, guides, listings, functional and technical specifications, systems, procedures, manuals, confidential reports, business plans, or customer lists; (ii) information that is designated as confidential by the disclosing party; or (iii) information that should reasonably be understood by the receiving party to be confidential. Confidential Information will not be subject to the restrictions set forth in this Section 11 to the extent such Confidential Information: (i) is subsequently learned from an independent third party free of any restriction and without breach of the Agreement; (ii) becomes publicly available through no wrongful act of the receiving party; (iii) is independently developed by the receiving party without reference to any Confidential Information of the other party; or (iv) is required to be disclosed by law. As between Kickfin and Merchant, Kickfin Data will be the Confidential Information of Kickfin, Services Data will be the Confidential Information of Kickfin, subject to the last sentence of Section 10(c), and Merchant Data will be the Confidential Information of Merchant.
Use and Disclosure. As between the parties, all Confidential Information of a party that is disclosed in connection with the Agreement will remain the sole property of the disclosing party, and each party agrees to treat the Confidential Information of the other party with the same degree of care and security as it treats its own confidential information but in any event no less than a commercially reasonable degree of care and security. Each party may use Confidential Information of the other party to exercise its rights and perform its obligations under the Agreement. Each party may disclose Confidential Information of the other party to its directors, officers, employees, service providers, agents, professional advisors, auditors, and other representatives who have a “need to know” such information in connection with the Disbursement Services or the Agreement, so long as such directors, officers, employees, service providers, agents, professional advisors, auditors, and other representatives are subject to confidentiality obligations that are at least as restrictive as the obligations set forth herein. Additionally, Kickfin may disclose Confidential Information of Merchant to any Kickfin Partner or any Network pursuant to any requirement or request of such Person. Except as otherwise provided in the Agreement, the receiving party will not use or disclose the Confidential Information of the disclosing party without the prior written consent of the disclosing party.
Disclosure Required by Law. If any governmental or regulatory authority requires the receiving party to disclose Confidential Information of the disclosing party, the receiving party will: (i) notify the disclosing party in writing as soon as practicable (unless prohibited by applicable Law); (ii) use commercially reasonable efforts to limit the scope of such disclosure, disclose only the Confidential Information reasonably required to comply with the requirement, and use commercially reasonable efforts to obtain confidential treatment of or protection by order of any Confidential Information; and (iii) permit the disclosing party to seek a protective order or to otherwise challenge or limit the disclosure of the Confidential Information prior to the disclosure thereof, subject to applicable Law.
Equitable Remedies. Each party acknowledges that breach by it of one or more obligations in this Section 11 will cause the other party to suffer immediate and irreparable harm for which money damages would be an inadequate remedy. Therefore, in the event that a party breaches one or more obligations under this Section 11, the other party will be entitled to injunctive or equitable relief as well as any additional relief that may be appropriate or otherwise available to such party.
DISCLAIMER OF WARRANTIES. THE DISBURSEMENT SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, KICKFIN HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND/OR GUARANTEES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR COURSE OF DEALING, AS WELL AS ANY WARRANTIES, CONDITIONS, AND/OR GUARANTEES THAT THE DISBURSEMENT SERVICES PROVIDED BY KICKFIN, OR THE OPERATION THEREOF, WILL BE INTERRUPTION OR ERROR FREE OR ACCURATE AND COMPLETE OR THAT THE INFORMATION AND/OR DATA PROVIDED OR OTHERWISE MADE AVAILABLE BY KICKFIN WILL BE ACCURATE, COMPLETE, AUTHENTIC, AND CURRENT.
DISCLAIMER OF DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, (I) NO KICKFIN INDEMNIFIED PARTY WILL BE LIABLE TO MERCHANT OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, OR FOR ANY LOSS OF REVENUE OR LOSS OF PROFITS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE), OR OTHERWISE, ARISING OUT OF OR RELATING TO THE AGREEMENT, EVEN IF SUCH KICKFIN INDEMNIFIED PARTY HAS BEEN ADVISED OF SUCH POTENTIAL DAMAGES OR LOSSES, AND (II) NO KICKFIN INDEMNIFIED PARTY WILL BE LIABLE TO MERCHANT OR ANY THIRD PARTY FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO (A) ANY ACTS OR OMISSIONS OF MERCHANT OR ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT, OR REPRESENTATIVE OF MERCHANT, (B) ANY ERRONEOUS STATEMENTS OR ERRORS IN TRANSMISSION, OR (C) ANY DELAY, INTERRUPTION, OR FAILURE TO PERFORM HEREUNDER DUE TO ANY CIRCUMSTANCES BEYOND KICKFIN’S REASONABLE CONTROL, INCLUDING ACTS OF GOD, FIRE, EXPLOSION, EARTHQUAKE, RIOT, TERRORISM, WAR, SABOTAGE, ACCIDENT, EPIDEMIC, PANDEMIC, EMBARGO, STORMS, STRIKES, LOCKOUTS, ANY INTERRUPTION, FAILURE, OR DEFECTS IN INTERNET, TELEPHONE, OR OTHER INTERCONNECTED SERVICES, OR ANY INTERRUPTION, FAILURE, OR DEFECTS IN ELECTRONIC OR MECHANICAL EQUIPMENT. KICKFIN’S OBLIGATIONS HEREUNDER WILL BE SUSPENDED DURING ANY OF THE FOREGOING CIRCUMSTANCES, WHICH SUSPENSION WILL NOT BE A CAUSE FOR TERMINATION OF THE AGREEMENT BY MERCHANT.
LIABILITY CAP. TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, KICKFIN’S LIABILITY TO MERCHANT OR ANY THIRD PARTY FOR ALL DAMAGES AND LOSSES ARISING OUT OF OR RELATING TO THIS DISBURSEMENT AGREEMENT WILL NOT EXCEED THE FEES ACTUALLY PAID BY MERCHANT THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
Notices. All notices to Merchant hereunder will be delivered to Merchant at the e-mail address provided by Merchant in the Application, and will be effective when sent. Merchant hereby consents to receive all notices from or on behalf of Kickfin electronically through the email address provided by Merchant on the Application and to use electronic signatures in connection with Merchant’s relationship with Kickfin. If Merchant wishes to withdraw its consent to receive notices electronically, then Merchant will communicate its wishes to Kickfin in writing. All notices to Kickfin hereunder will be in writing and delivered personally, or sent by prepaid registered mail, return receipt requested, to Kickfin at the address indicated on the Site and addressed to the “Legal Department,” and will be effective upon receipt.
Independent Contractors. The parties will be deemed independent contractors. Nothing in the Agreement will be construed to create a partnership, joint venture, or agency relationship between the parties.
No Third-Party Beneficiaries. Except as contemplated by the Agreement, the Agreement has been entered into for the benefit of the parties hereto, and nothing herein will be construed to give any rights hereunder to any other Person.
Entire Agreement. The Agreement constitutes the entire agreement between the parties and supersede all prior or contemporaneous agreements, representations, and/or understandings of the parties, whether written or oral.
Waiver. No waiver of any of the provisions in the Agreement will be deemed to be a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. No waiver will be binding unless executed in writing by the party against which such waiver will be enforced.
Amendments. Neither party may amend, modify, or waive any rights or responsibilities in connection with the Agreement except by an instrument in writing signed by the parties. Notwithstanding the foregoing, Kickfin may unilaterally amend the Agreement as necessary to comply with applicable Law, Network Rules, or any Kickfin Partner Requirements upon notice to Merchant. In the event Kickfin unilaterally amends the Agreement in accordance with the previous sentence, such amendment will be effective as of the effective date set forth in such amendment or, if no effective date is set forth in such amendment, thirty (30) days following Kickfin’s delivery of such amendment to Merchant, and Merchant will be deemed to have accepted such amendment if Merchant continues to access and use the Disbursement Services following such effective date or time period, as the case may be.
Non-Disparagement. Neither party will publish negative statements concerning the other party during the Term of the Agreement and thereafter in any form (e.g., Facebook, Twitter, etc.).
Assignment. Neither party may assign the Agreement, or any rights thereunder, directly or by operation of law, without the prior written consent of the other party. Any attempted assignment or transfer in violation of the foregoing provisions shall be null and void ab initio. The Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
Remedies. All remedies of either party hereunder are cumulative and may be exercised concurrently or separately.
Severability. If any provision of the Agreement is held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, it is the intent of the parties that all other provisions of the Agreement be construed to remain fully valid, enforceable, and binding on the parties.
Governing Law. The Agreement will be deemed to have been made and delivered in the State of Delaware and will be governed as to validity, interpretation, construction, effect, and otherwise exclusively by the laws of the State of Delaware, without giving effect to its conflicts-of-laws rules.
Waiver of Jury Trial. THE PARTIES HEREBY IRREVOCABLY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT.
Binding Arbitration. The parties agree that any dispute, claim, or controversy arising out of or relating to the Agreement or the breach, termination, performance, enforcement, interpretation, or validity thereof (including with respect to the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding this arbitration provision) (each, a “Dispute”) that cannot be resolved through informal negotiation will be resolved by binding arbitration by one arbitrator, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or other violation of a party’s intellectual property rights. If, for any reason, a Dispute is deemed outside the scope of the agreement to arbitrate, or if the agreement to arbitrate is deemed invalid, illegal, or unenforceable, to the extent invalid, illegal, unenforceable, or outside the scope, the parties agree that the venue for such Dispute will be exclusively a state or federal court in Delaware. Any arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules last in effect as of the date the Demand for Arbitration was properly sent, except as modified by this Section 13(m) (the “AAA Rules”). The Federal Arbitration Act will govern the interpretation and enforcement of this Section 13(m). If a party desires to initiate arbitration, then the party must provide the other party with a written Demand for Arbitration by first class mail using the form provided by the AAA. The Demand for Arbitration must be provided within a reasonable time after the Dispute has arisen, and in no event will it be made after two (2) years from when the aggrieved party knew or should have known of the Dispute. The arbitrator will be an attorney licensed to practice law in the State of Delaware who is, at the time of the Demand for Arbitration, practicing in commercial law or banking law. If the parties are unable to agree upon an arbitrator within fifteen (15) days of actual receipt of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitration will be conducted in Delaware, in English, and the arbitrator will apply the substantive law of the State of Delaware, exclusive of its conflicts-of-law principles. If a Dispute does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents the parties submit to the arbitrator. If a Dispute exceeds $10,000, then the right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of documents and information by the parties, consistent with the expedited nature of the arbitration. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. The authority to resolve any Dispute is subject to the limitations of liability set forth in the Agreement. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the limitation of liability provisions of the Agreement to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If a party prevails in arbitration, it will be entitled to an award of attorney’s fees and expenses, to the extent provided under applicable Law. Each party’s responsibility to pay any AAA filing, administrative and arbitrator fees will be as set forth in the AAA Rules. Notwithstanding the foregoing, any Dispute involving a claim of $500 or less may, at the option of the claiming party, be resolved in small claims court in Delaware, if the claim and the parties are within the jurisdiction of the small claims court, so long as the matter remains in small claims court and proceeds only on an individual basis.
Construction. For purposes of the Agreement, (i) captions are for convenience only and do not constitute a limitation of the terms hereof; (ii) the singular includes the plural, and the plural includes the singular; (iii) references to “herein,” “hereunder,” “hereinabove,” or like words will refer to the Agreement as a whole and not to any particular section, subsection, or clause contained in the Agreement; (iv) the terms “include,” “includes,” and “including” are not limiting and will be deemed to be followed by “without limitation”; (v) the term “or” will be deemed to be used in the inclusive sense of “and/or,” unless the context requires otherwise; and (vi) reference to any agreement or document includes any permitted modifications, supplements, amendments, and replacements thereto.
Survival. The following Sections will survive the expiration or termination of the Agreement: Sections 1(b), 1(c), 3(c), 3(d), 3(e), 3(f), 3(g), 3(g), 3(h), 3(i), 4, 5, 6, 8, 9, 10, 11, 12, 13, and 14.
The following terms will have the meanings set forth below.
“AAA” has the meaning set forth in Section 13(m) of this Disbursement Agreement.
“AAA Rules” has the meaning set forth in Section 13(m) of this Disbursement Agreement.
“Access Code” has the meaning set forth in Section 2(b) of this Disbursement Agreement.
“ACH” means the automated clearinghouse network.
“Affiliate” means, with respect to a Person, any other Person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Person, or a Person’s principal partners, shareholders, or owners of some other ownership interest.
“Agreement” has the meaning set forth in the Merchant Application.
“Application” has the meaning set forth in the Merchant Application.
“Confidential Information” has the meaning set forth in Section 11(a) of this Disbursement Agreement.
“Data” means Kickfin Data, Merchant Data, or Services Data, as applicable.
“Disbursement Agreement” has the meaning set forth in the Preamble to this Disbursement Agreement.
“Disbursement Services” has the meaning set forth in Section 1(a) of this Disbursement Agreement.
“Dispute” has the meaning set forth in Section 13(m) of this Disbursement Agreement.
“Documentation” means all documentation related to the Disbursement Services, including all descriptive materials concerning the functions and technical specifications of the Disbursement Services, user manuals, technical manuals, and other materials related to the Disbursement Services, as the same may be modified, supplemented, or replaced by Kickfin from time to time.
“Feedback” has the meaning set forth in Section 5(d) of this Disbursement Agreement.
“Fees” means the fees applicable to the Disbursement Services as indicated in the Application or otherwise communicated by Kickfin to Merchant.
“Funding Account” has the meaning set forth in Section 4(a)(i) of this Disbursement Agreement.
“Initial Term” has the meaning set forth in Section 9(a) of this Disbursement Agreement.
“Kickfin” has the meaning set forth in the Merchant Application.
“Kickfin Account” means the Kickfin System account established for Merchant or a Payment Recipient, as the case may be, through which Merchant can access and use the Disbursement Services and Payment Recipients can provide information and review related activity. Kickfin Accounts are not bank accounts or other financial accounts.
“Kickfin Data” means any data or information collected, received, or otherwise obtained by Kickfin independent of the Agreement.
“Kickfin Indemnified Party” has the meaning set forth in Section 8 of this Disbursement Agreement.
“Kickfin IP” has the meaning set forth in Section 5(a) of this Disbursement Agreement.
“Kickfin Marks” means any Marks of Kickfin.
“Kickfin Partner” has the meaning set forth in Section 1(b) of this Disbursement Agreement.
“Kickfin Partner Requirements” has the meaning set forth in Section 1(b) of this Disbursement Agreement.
“Kickfin System” means the cloud-based system operated by Kickfin through which Merchant may access and use the Kickfin Account and the Disbursement Services.
“Law” means all laws, statutes, codes, ordinances, orders, decrees, rules, regulations, regulatory guidance, directives, policies, determinations of, or mandatory written direction from or agreements with any governmental, regulatory, or judicial authority.
“Losses” means all damages, losses, liabilities, penalties, fines, assessments, judgments, settlements, costs, expenses (including attorneys’ fees and expenses), and other similar amounts.
“Marks” means any trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
“Merchant” has the meaning set forth in the Merchant Application.
“Merchant Data” means any data or information collected, received, or otherwise obtained by Merchant independent of the Agreement.
“Merchant DDA” has the meaning set forth in Section 4(b) of this Disbursement Agreement.
“Merchant Marks” means any Marks of Merchant or any applicable Affiliate of Merchant.
“Merchant System” means the systems operated by or on behalf of Merchant and used in connection with the Disbursement Services.
“Network” means any payment network supported in connection with the Disbursement Services.
“Network Rules” means all applicable operating rules, operating regulations, and other requirements and programs of any Network, including the Network Security Programs, as the same may be modified, supplemented, or replaced by any applicable Network from time to time.
“Network Security Programs” means the data protection and security programs and requirements of the Networks, including the PCI Standards, the Visa Account Information Security Program, the Mastercard Site Data Protection Program, American Express’s Data Security Operating Policy, and Discover’s Information Security and Compliance Program, in each case, as the same may be modified, supplemented, or replaced from time to time.
“OFAC” has the meaning set forth in Section 5(c)(xiii) of this Disbursement Agreement.
“PCI Standards” means all requirements and standards of the Payment Card Industry Security Standards Council (or any successor or replacement body), including the Payment Card Industry Data Security Standard.
“Person” means any individual, any corporation, partnership, limited liability company, association, trust, unincorporated organization, any other legal entity or organization, or any federal, state, or local governmental, regulatory, or judicial authority.
“Prohibited Activity” means any of the following: any act that is illegal in the Territory or in the jurisdiction where the Person carrying out the activity is resident, domiciled, or located; bath salts and herbals; betting, including lottery tickets, casino gaming chips, off-track betting, memberships on gambling-related internet sites, and wagers at races; bill payment services; buyers or discount clubs; cigarettes, tobacco, or e-cigarettes; credit counseling or repair agencies; credit protection or identity theft protection services; digital goods including digital currency; direct marketing or subscription offers; inbound or outbound telemarketing businesses, including lead generation businesses; infomercial sales; internet, mail, or telephone order pharmacies or pharmacy referral services; items that encourage, promote, facilitate, or instruct others to engage in illegal activity; items that may be counterfeit including, but not limited to: designer handbags, clothing and accessories, and consumer electronics; items that may infringe or violate any copyright, trademark, right of publicity or privacy, or any other proprietary right under the laws of any jurisdiction; items that promote hate, violence, racial intolerance, or the financial exploitation of a crime; items that promote, support, or glorify acts of violence or harm towards self or others; legal fees, including bankruptcy attorneys; live animals; medical equipment; multi-level marketing businesses (MLM); obscene or pornographic items; payment aggregators; prepaid phone cards or phone services; purchase, sale, or promotion of drugs, alcohol, or drug paraphernalia, or items that may represent these uses; real estate or motor vehicles; rebate based businesses; sales of money-orders or foreign currency; up-sell merchants; weapons, including replicas and collectible items; weight loss programs; wire transfer money orders; using the Disbursement Services as a means to transfer funds between bank accounts held in the same name; using the Disbursement Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation, and other proprietary rights and data collection and privacy; using the Disbursement Services in a manner that Kickfin or any Network reasonably believes to be an abuse of the payment card system or a violation of Network Rules; using the Disbursement Services in any manner that could damage, disable, overburden, or impair Kickfin, including, without limitation, using the services in an automated manner; using the Disbursement Services in violation of the terms of the Agreement, as reasonably determined by Kickfin; using the Disbursement Services that in any way assists Merchant or others in the violation of any law, statute, or ordinance; using the Disbursement Services to collect payments that support pyramid or ponzi schemes, matrix programs, other “business opportunity” schemes, or certain multi-level marketing programs; using the services to control an account that is linked to another account that has engaged in any of the foregoing activities; using the Disbursement Services to defame, harass, abuse, threaten, or defraud others, or collect, or attempt to collect, personal information about users, registered recipients, or third parties without their consent; using the Disbursement Services to intentionally interfere with another user’s enjoyment of the Disbursement Services, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code; using the Disbursement Services to make unsolicited offers, advertisements, proposals, or to send junk mail or spam to others; using the Disbursement Services to provide cash advances using an individual’s own credit card or to help others to do so; using the Disbursement Services to send or receive what Kickfin considers to be funds for something that may have resulted from fraud or other illegal behavior; using the Disbursement Services while impersonating any person or entity or falsely claiming an affiliation with any person or entity; or any other activity that any applicable Kickfin Partner deems to be a prohibited activity.
“Prohibited Person” has the meaning set forth in Section 5(c)(xiii) of this Disbursement Agreement.
“Payment Recipient Account” means the financial account of a Payment Recipient.
“Payment Recipient” means an individual (i) who is lawfully residing in the U.S.; (ii) who is lawfully engaged as an employee of or independent contractor to Merchant; (iii) who Merchant expects will be entitled to Tips from Merchant time to time; (vi) who has been approved by Kickfin; and (iv) who enters into an agreement with Merchant to receive Tips.
“Renewal Term” has the meaning set forth in Section 9(a) of this Disbursement Agreement.
“Services Data” means any data or information about or related to Merchant, any Payment Recipient, or any transaction collected, received, or otherwise obtained by or on behalf of Kickfin in connection with the Disbursement Services or the Agreement.
“Site” means the Kickfin website located at www.kickfin.com and all associated web pages.
“Term” has the meaning set forth in Section 9(a) of this Disbursement Agreement.
“Territory” has the meaning set forth in Section 1(c) of this Disbursement Agreement.
“Third-Party Servicer” means any third party, other than Kickfin, engaged by Merchant to provide or otherwise make available any services to Merchant.
“Tip” means a gratuity paid by a customer of Merchant to Merchant that Merchant wishes to pay to a Payment Recipient.
