These payment terms and conditions (the “Payment Terms”) are a contract between you (“You” or “Your”) and TEZ Technologies LLC. (“TEZ,” “we,” “our,” or “us”) and govern Your access and use of all or any part of the Payment Services (defined below). By using any of the Payment Services, You accept and will be legally bound to our General Terms of Service (“General Terms”), these Payment Terms, and all other terms, policies, and guidelines applicable to the Payment Services.
If You do not agree with these Payment Terms, You may not access or use the Payment Services. If You are using the Payment Services on behalf of a business, that business accepts these terms and You represent to us that You have authority to bind that business or entity to these General Terms.
These Payment Terms are in addition to the General Terms, which govern any additional services You may receive from us. If there is any conflict between these Payment Terms and the General Terms, the terms of these Payment Terms will control to the extent of the conflict. Capitalized terms not specifically defined herein have the meanings set forth in the General Terms.
1. THE PAYMENT SERVICES
TEZ is a payment facilitator that allows You to accept credit, debit, prepaid, or gift cards (“Cards”) bearing the trademarks of American Express Travel Related Services Company, Inc., DFS Services, LLC, MasterCard International Inc., and Visa Inc. (collectively, the “Card Brands”) from Your customers for the payment for goods and services. These Payment Services are provided pursuant to TEZ’s contractual relationship with Wells Fargo Bank, N.A. (“Bank”) and ProPay, Inc. (“Processor”). By accepting or otherwise agreeing to these Payment Terms, You agree to the terms and conditions of the [Direct Bank Agreement]. Bank and Processor may be changed at any time without prior notice to You.
TEZ will provide You with Payment Services in accordance with these Payment Terms. All services subject to availability and TEZ’s approval. You agree to use the Payment Services only for business purposes and not for personal, family, or household use, and only in the fifty states of the United States of America and the District of Columbia. You agree to use the Payment Services in compliance with (a) all applicable federal, state, and local laws, statutes, regulations, rules, ordinances, codes, and court orders, and all applicable regulatory orders, directives, and guidance that govern or affect these Payment Terms or the subject matter hereof (“Law”), and (b) the bylaws, operating rules, regulations, policies, and procedures of any applicable Card Brand, including the Payment Card Industry Data Security Standard published by the PCI Security Standards Council and any manuals, guides, or bulletins, as in effect from time to time (“Rules”).
You are not required to accept any Card Brand as a condition of receiving the Payment Services. We may remove or add Cards that you may accept for processing at any time without prior notice. These Payment Terms are consistent with the Card Brands’ requirement that You enter into a submerchant or sponsored merchant agreement to receive Payment Services.
2. UNDERWRITING AND REQUIRED INFORMATION
After You complete an application for Payment Services, such Payment Services will not be available to You unless and until TEZ confirms that You are eligible under the Rules and the Law to use the Payment Services. You authorize TEZ to make any investigation of Your finances, activities, and operations that TEZ reasonably deems necessary to confirm Your eligibility for Payment Services. You agree to provide TEZ with any information required to complete such investigation and authorize TEZ to share such information with Processor and Bank as necessary to provide the Payment Services.
You agree that all information You provide is and will be accurate and complete, and agree to keep such information up-to-date. Upon request, You agree to provide (i) the current addresses of all locations where or for which You accept Card payments, (ii) a list of all of Your assumed business names, and (iii) a list of all of Your products and services.
You authorize TEZ to make any background, identity-verification, credit, and transaction-verification inquiries that TEZ reasonably deems necessary and authorize any credit reporting agency to compile information to answer such inquiries and furnish that information to TEZ. You authorize TEZ to share the results of such inquiries with Processor and Bank as necessary to provide the Payment Services. If applicable, for any background, credit, or other check or report on Your owners, officers, directors, or other principals, each in their individual capacities, You agree to work with TEZ to obtain any necessary authorizations from such individuals.
To help the government fight the funding of terrorism and prevent money-laundering, TEZ, Processor, Bank, or the Card Brands may obtain, verify, and record information that identifies You and Your beneficial owners, officers, and other associated individuals, and any individuals that have access to the Payment Services. Upon request, You will provide TEZ, Processor, Bank, or the Card Brands, as applicable, the documentary and other evidence of Your identity and that of Your beneficial owners and other associated individuals, and the identity of any individual to whom You provides access to the Payment Services. You agree that TEZ, Processor, Bank, and the Card Brands may disclose such information as required to comply with their obligations under the Law.
You will provide TEZ with written notice of any (i) adverse change in Your financial condition, (ii) planned or anticipated liquidation or substantial change to the basic nature of Your business, (iii) transfer or sale of twenty-five percent (25%) or more in value of Your ownership, voting stock, beneficial interest, or total assets, or (iv) levy against twenty-five percent (25%) or more in value of Your total assets. You will provide any such notice not more than three (3) days after You learn of any such event.
In the event You rent or purchase any equipment from TEZ in connection with the Payment Services, You agree to abide by the applicable terms and conditions in the General Terms.
4. CARD ACCEPTANCE REQUIREMENTS
You will honor any valid Card properly tendered by a person asserting to be a person authorized to use a Card or the accounts established in connection with a Card (“Cardholder”). You agree to accept for payment, and will not engage in any practice or procedure that discriminates against, or discourages the use of, any Card issued by each Card Brand for which You have elected to receive Payment Services. You will only accept Cards for Transactions that are bona fide sales of Your goods or services. You will properly disclose to the Cardholder at the time of the Transaction Your name, return policy, and any limitations You may have on accepting returned goods. Your refund polices for purchases made with a Card must be at least as favorable as Your refund policy for purchases made with any other form of payment. You may set a minimum Transaction amount to accept a Card, provided that such minimum does not differentiate among Card issuers or among Card Brands and that such minimum complies with the Federal Reserve’s limits for Transaction minimums.
You understand and agree that Your Payment Services account with TEZ may only be used to process payments through the existing TEZ systems and services described in the General Terms. At this time, TEZ does not provide virtual terminal services or other stand-alone payment processing services.
You are required to obtain the Cardholder’s approval (“Authorization”) for each Transaction and include the Authorization when transmitting each Transaction. Authorizations are not a guarantee of acceptance or payment of a Transaction, do not waive any provision of these Payment Terms, and do not otherwise validate a fraudulent Transaction or a Transaction involving the use of an expired Card. TEZ, Processor, or Bank may refuse to authorize any Transaction. All Transactions are subject to audit and verification by TEZ, Processor, or Bank and may be adjusted for inaccuracies. All credits provided to You are provisional and subject to chargebacks and adjustments in accordance with the Rules, irrespective of whether a Transaction is returned or reversed by the Card issuer. A chargeback means any reversal, return, or invalidation of a Transaction (or portion of a Transaction) through a Card Brand. You will retain a copy of the sales transmittal for each completed Transaction in accordance with the Rules and the Law. Upon request by Processor or Bank, You will provide copies of sales transmittals and other Transaction evidence. For any recurring Transactions, You will obtain and retain any consents and provide any notices, as required by the Rules and the Law.
Significant portions of the Card Brand Rules are available to the public at https://visa.com, https://www.mastercard.com, and https://www.americanexpress.com/merchantopguide.
5. COMPLIANCE WITH THE RULES AND THE LAW
You agree to comply with these Payment Terms, the Rules, and the Law, including anti–money laundering and economic sanctions Laws. In the event of any conflict between the terms of these Payment Services and the Rules or the Law, the terms of the Rules or the Law will prevail.
You agree to assist TEZ, Processor, and Bank in monitoring Your compliance with the Rules and the Law. TEZ, Processor, or Bank, each in its sole discretion, may suspend processing Transactions for a reasonable period of time required to investigate suspicious or unusual activity, and each will have no liability for any of Your losses arising from any such suspension. TEZ, Processor, or Bank, each in its sole discretion, may reverse any Transaction that violates these Payment Terms, the Rules, or the Law, and You agree to reimburse TEZ, Processor, or Bank, as applicable, for any such reversal.
6. PROHIBITED ACTIVITIES
You will not act as a payment facilitator or otherwise resell or sublicense the Payment Services to any third party. You will not use the Payment Services to handle, process, or transmit funds for any third party. You also may not use the Payment Services to process cash advances. You must not:
· Submit to a Card Brand any Transaction that You know or should know violates the Law in either the Cardholder’s or Your jurisdiction;
· Submit to a Card Brand any Transaction that You know or should know is fraudulent or not authorized by the Cardholder;
· Submit (or resubmit) to a Card Brand any Transaction that was previously a chargeback;
· Submit to a Card Brand any Transaction that represents the refinancing of a debt, including an existing obligation to a Card Brand, an existing debt to You that has been deemed uncollectable, or repayment for a dishonored check, except as expressly permitted under the Rules;
· Add any tax or surcharge to Transactions, unless the Law expressly requires or the Rules expressly permit You to impose such tax or surcharge (any amounts, if allowed, must be included in the Transaction amount and not collected separately);
· Ask or require a Cardholder to complete a document that, if mailed, would display in plain view any information that Cardholders provide in the course of completing Transactions with You, including Card numbers and expiration dates, account numbers, and other personal Cardholder information (“Cardholder Data”);
· Ask or require a Cardholder to waive any dispute rights;
· Request or use a Card account number for any purpose other than as payment for Your goods or services;
· Disburse funds to a Cardholder in the form of cash or scrip unless You are dispensing funds in the form of traveler’s checks, in foreign currency, or as part of a Card Brand’s cash-back service, each as defined by, and in accordance with, the Rules; and
· Disburse funds to a Cardholder in the form of travelers checks if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from You.
7. USE OF BRAND MARKS AND OTHER MARKS
The Card Brands are the sole and exclusive owners of their respective trade names, trademarks, service marks, logos, and logo types (“Brand Marks”) and any promotional or instructional materials provided to You that use or contain any Brand Marks. Your use of Brand Marks must comply with the Rules and the Law. Processor and Bank are the sole and exclusive owners of their respective trademarks, marks, and logos, and Your use of such marks must comply with Processor’s and Bank’s express policies and written instructions and the Law. At any time and without prior notice, Card Brands may require a change in or prohibit Your use of Brand Marks. Your right to use Brand Marks and, if applicable, Processor’s and Bank’s marks, will cease upon termination of these Payment Terms, and You agree not to contest the ownership of all such marks for any reason.
8. settlement, PAYOUT SCHEDULE, and Transaction disputes
You agree to establish and maintain one or more deposit accounts to be the designated “Transaction Account” to receive the funds processed through the Payment Services for Cardholder Transactions (“Transaction Funds”). You may establish a single Transaction Account for all locations or a separate Transaction Account for each location (or any combination thereof) where or for which You accept Card payments, provided that if You establish a Single Transaction Account, then each location must operate under the same employer identification number or tax identification number. You will provide TEZ with complete information regarding the Transaction Account for each location.
You authorize TEZ (or its service providers) to initiate credits and debits to the Transaction Account through the Automated Clearinghouse (“ACH”) System. Such authorization will remain in full force and effect until thirty (30) days after TEZ receives written notice from You of termination of this ACH authorization. TEZ reserves the right to terminate or suspend Payment Services at any time if You fail to provide an active Transaction Account with an ACH authorization. To ensure proper remittance of Transaction Funds, You are solely responsible for providing TEZ with accurate contact, payment, and account information for each Transaction Account, including any applicable tax information.
You agree that the deposit of Transaction funds to the Transaction Account discharges TEZ, Processor, and Bank of any settlement obligation to You and that any dispute regarding the receipt or amount of settlement will be between TEZ and You. You agree that TEZ, Processor, and Bank have no settlement obligation to You regarding the proceeds from any Transaction that violates these Payment Terms, the Rules, or the Law.
Transaction Funds, less any amounts TEZ is authorized to deduct or withhold under these Payment Terms, will be remitted to You by ACH to the Transaction Account in accordance with the Payment Schedule. Amounts owed to You will be calculated solely based on records maintained by TEZ. It is Your responsibility to promptly and consistently inspect Your Transaction and settlement history, and You must immediately report any possible errors to TEZ. If You believe TEZ has failed to remit or has made an error in the remittance of Transaction funds as set forth herein, You must notify TEZ in writing within ninety (90) days of the date You purport such failure or error in remittance would have been due, specifying in reasonable detail the amounts You believe are owed. Your failure to so notify TEZ will result in Your waiver of any claim relating to such disputed remittance. In the event You fail to make any required payments to TEZ when due, TEZ reserves the right to withhold Transaction Funds until such payments have been made in full.
9. RESERVE ACCOUNT
TEZ may, in its sole discretion or at the direction of Processor or Bank, establish and maintain a deposit account to be funded by You as security for Your current and future obligations under these Payment Terms. TEZ will determine the amount of such reserve, and You agree to deposit that amount in the reserve account. You agree that TEZ may initiate ACH debits to the Transaction Account or withhold amounts that TEZ would otherwise pay to the Transaction Account for the purpose of establishing, maintaining, or increasing the balance in the reserve account. TEZ may, without notice to You, apply funds in the reserve account against any amounts owed by You under these Payment Terms. By executing this these Payment Terms, You grant to TEZ a security interest in the funds held in any reserve account established pursuant to this section. You will not be entitled to a return of any funds remaining in the reserve account for 180 days following the later of termination of these Payment Terms or submission of Your last Transaction. You will remain liable for all fees or amounts incurred after any such return of funds.
10. TRANSACTION DISPUTES AND CUSTOMER SERVICE
Except for TEZ's limited role in processing payments, TEZ is not involved in any underlying sale of goods or services by You. You agree that all disputes between You and any Cardholder relating to a Transaction will be settled between You and the Cardholder. TEZ bears no responsibility for such disputes. You are solely responsible for all customer service policies and issues relating to Your goods or services, including pricing, order fulfillment, cancellations or no shows by You or a customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with Your personnel, policies or processes. In performing customer service, You will always present yourself as a separate entity from us.
Card Brand inquiries about Transactions may cause Processor or Bank to chargeback such Transactions. Processor and Bank will offset the value of such chargebacks from the Transaction funds that will be received by TEZ for remittance to You. If You disagree with a chargeback, You may request a chargeback reversal within the applicable Card Brand’s timeline in the Rules. TEZ, Processor, and Bank may revoke, reverse, or offset any credit to You for a Transaction not made in compliance with these Payment Terms, the Rules, or the Law or where such remittance to You was made erroneously.
You are subject to each Card Brand’s acceptance guidelines, monitoring programs, activity reporting requirements, and limits, including those relating to excessive credits, disputes, and chargebacks. Excessive chargebacks may result in violation of the Rules, breach of these Payment Terms, and suspension of the Payment Services.
You agree to pay to TEZ all service and processing fees and other charges specified in the Fee Schedule; any adjustments, fees, penalties, or costs incurred by TEZ as a result of any dispute related to Transactions; any liabilities or other amounts TEZ incurs as a result of fraudulent use of Your terminal for Authorizations, unauthorized use of or access to Cardholder Data on Your systems, or any other payment transaction alleged to have been processed through the Payment Service; and any fees, fines, or penalties imposed by third parties (including Processor, Bank, and Card Brands) related to chargebacks or any returned or cancelled Transaction funds remittance.
You authorize and direct TEZ to deduct and set off from Transaction funds the fees and other amounts You owe under these Payment Terms, and You understand that the Transaction funds TEZ remits to You will be net of these amounts. In the event that any set off against Transaction funds is not sufficient to cover the fees and other amounts owed under these Payment Terms, You agree that TEZ may initiate an ACH debit to any Transaction Account for such amounts. You agree to maintain sufficient funds in the Transaction Accounts to satisfy all obligations to TEZ, Processor, and Bank contemplated by these Payment Terms. If the fees and other amounts owed under these Payment Terms or an ACH debit for such amounts causes the balance in a Transaction Account to be less than zero ($0), TEZ may charge an overdraft fee or require that You make a wire transfer to the Transaction Accounts within one (1) banking business day of notice.
From time to time, Processor, Bank, or Card Brands may change the fees each charges for Transactions. TEZ will provide You with thirty (30) days written prior notice of all such changes, and Your submission of a Transaction or continued use of the Payment Services after the effective date of such notice will be deemed acceptance of such change.
You agree to cooperate in any legal audit, examination, or investigation as may be required by TEZ, Processor, Bank, Card Brands, or any Regulatory Authority; and upon request and reasonable prior notice, permit TEZ, Processor, or Bank (or a duly authorized representative thereof) to conduct an on-site inspection of Your premises and examine Your books, records, and systems, but only to the extent that each pertains to compliance with these Payment Terms and the Rules. The term “Regulatory Authority” means any federal, state, or local government or any agency, board, commission, court, department, or division thereof, having jurisdiction, supervisory authority, or enforcement powers over any party to these Payment Terms, but which does not include any Card Brand. Such Regulatory Authorities include the U.S. Treasury Financial Crimes Enforcement Network (FinCEN), U.S. Treasury Office of Foreign Assets Control (OFAC), Board of Governors of the Federal Reserve System (Federal Reserve), Internal Revenue Service (IRS), and Federal Trade Commission.
As between TEZ and You, all Cardholder Data will be owned by TEZ. We hereby grant You for the term of these Payment Terms a revocable, unassignable license to use, reproduce, electronically distribute, disclose, and display Cardholder Data in compliance with Law and Rules and solely as necessary to (i) provide Your products and services, (ii) comply with the Rules and the Law, and (iii) assist Regulatory Authorities by responding to requests for the disclosure of information in accordance with Law. For purposes of this section, Cardholder Data does not include magnetic stripe, Track-2, CVV2, CVC2, or CID data.
You agree to implement and maintain secure systems for maintaining, accessing, processing, and transmitting Cardholder Data or Transaction information to TEZ, Processor, and Bank. You will ensure all such systems comply with the security requirements under the USA PATRIOT Act and any similar Law and the security requirements of the Card Brands, including where applicable, the Payment Card Industry Data Security Standard published by the PCI Security Standards Council, the Visa Cardholder Information Security Program, the Mastercard Site Data Protection Program, and the Visa and Mastercard Data Security Standards.
You will undertake any required self-assessments, audits, and web infrastructure scans. You agree to keep secure all media containing Cardholder Data or Transaction information and destroy in a manner that will render the data unreadable all such media that is no longer necessary or appropriate to store. You agree to comply with Your obligations under the Law regarding the confidentiality, use, and disclosure of Cardholder Data.
You will not under any circumstances retain or store magnetic stripe, Track-2, CVV2, CVC2, or CID data after Authorization. You will maintain industry best practices regarding continuity procedures and systems to ensure security of Cardholder Data and Transaction information in the event of a disruption, disaster, or failure of Your data storage system or facility.
If there is actual or suspected unauthorized access of Cardholder Data or Transaction information in Your possession, You must immediately notify TEZ, and in all events no later than forty-eight (48) hours after discovery, and cooperate with TEZ, Processor, and Bank regarding reasonable requests for information regarding the security breach.
15. Term and termination
These Payment Terms are effective on (a) Your submission of an application for Payment Services; and (b) TEZ’s acceptance and approval of such application. TEZ may terminate these Payment Terms at any time for any reason, including, but not limited to, for Your breach of these Payment Terms or as otherwise provided herein. You may terminate these Payment Terms with thirty (30) days prior written notice. If these Payment Terms are terminated for any reason, Your obligations regarding any Transactions accepted for processing will survive termination, and any amounts owed by You to TEZ will become immediately due and payable. You authorize TEZ to debit such amounts from any Transaction Account, and if the funds in such account are insufficient, You agree to immediately pay any remaining amounts owed.
16. Representations and warranties
You represent the following: You and the authorized signatory executing these Payment Terms have the full power and authority to execute, deliver, and perform these Payment Terms; these Payment Terms are binding and enforceable against You, and no provision requiring Your performance is in conflict with Your obligations under any agreement to which You are a party; and You have never entered into a payment processing agreement with a third party that has been terminated by that third party.
You warrant during the term of these Payment Terms the following: You are duly organized, authorized, and in good standing under the Laws of the state, region, or country of Your organization and are duly authorized to do business in all other states, regions, or countries in which You operate; and You have not been placed in the Mastercard MATCH system, the Combined Terminated Merchant File, or any similar Card Brand system for tracking high risk merchants.
TEZ warrants that the Payment Services will be performed in accordance with applicable industry standards. The preceding warranty is TEZ’s sole and exclusive warranty concerning the Payment Services, and TEZ DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE OF ANY SERVICES RENDERED PURSUANT TO THESE PAYMENT TERMS.
18. Indemnification and limitation of liability
You agree to indemnify, defend, and hold TEZ and its directors, officers, employees, affiliates, and agents harmless from and against any and all proceedings, losses, costs, expenses, claims, demands, damages, and liabilities (including attorneys’ fees and costs, and collections costs) resulting from or otherwise arising out of (i) Your use of the Payment Services, (ii) acts or omissions of Your directors, officers, employees, affiliates, and agents in connection with the Payment Services, (iii) any infiltration, hack, breach, or access violation of the processing system resulting from or in any way related to Your access to the Payment Services, (iv) Your breach of these Payment Terms, and (v) Your violation of the Rules or the Law. This indemnification will survive the termination of these Payment Terms.
You agree to provide TEZ with written notice of any alleged breach by TEZ of these Payment Terms, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice will be deemed an acceptance by You and a waiver of any and all rights to dispute such breach.
TEZ’s cumulative liability to You is limited to direct damages and in all events will not exceed in the aggregate the amount of fees or compensation actually received by TEZ for the Transactions processed through the Payment Services during the three (3) month period immediately preceding the event that gives rise to the claim for liability. This limitation of liability will not apply to claims against TEZ for failure to remit Transfer Funds in accordance with Section 8, in which case TEZ’s liability for such direct claim by You is limited to the amount of any Transfer Funds that TEZ failed to transfer to You in accordance with Section 8.
Neither TEZ nor You shall, at any time during or after the term of these Payment Terms, in any manner, either directly or indirectly, divulge, disclose, or communicate to any person, firm, corporation, or other entity, or use for its own benefit or for the benefit of any person, firm, corporation, or other entity, any Confidential Information acquired from the other party, its parents or subsidiaries, without the express prior written consent of an authorized executive officer of the other party. For the purposes of these Payment Terms, "Confidential Information" shall include any materials that are so marked or that a reasonable business person would understand to be confidential information of the disclosing party. Each party shall safeguard the Confidential Information of the other party with the same degree of care to avoid unauthorized disclosure as it uses to protect its own Confidential Information of a similar nature, but in no case less than reasonable care.
You consent to electronic delivery of documents related to the Payment Services, and accept any future changes to those documents that may be electronically delivered. You agree to provide and keep current the information that TEZ needs to communicate with You electronically.
Except as otherwise provided herein, all notices under these Payment Terms will be in writing and will be delivered by hand, nationally recognized courier (signature required), registered or certified mail (return receipt requested) as follows:
If to TEZ:
TEZ Technologies LLC
ATTN: Payments Department
8352 Library Street
Frisco, TX 75034
If to You: The contact information included in Your application or any updates You have made in the records we maintain on file for You.
In addition, TEZ reserves the right to provide You any notices under these Payment Terms to the email address in Your application or as updated by You.
Notice will be deemed given when delivered by hand to an officer of the party to whom the notice is addressed, on the date of actual receipt when delivered by courier or mail, or within twenty-four (24) of transmittal when delivered by email. You agree to keep Your contact information up to date and agree that if any notice sent to You is not received because Your contact information on file with TEZ is incorrect or out of date, You will be deemed to have received the notice.
21. FORCE MAJEURE
TEZ shall be excused from performing any of its obligations under these Payment Terms that are prevented or delayed by any occurrence not within TEZ’s control including, but not limited to, strikes or other labor matters, destruction of or damage to any building, natural disasters, pandemics, accidents, war, riots, emergency conditions, interruption of transmission or communications facilities, equipment failure, or any regulation, rule, law, ordinance or order of any federal, state or local government authority.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason for Your use of the Payment Services. You also are solely responsible for collecting, withholding, reporting, and remitting correct taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether taxes apply, or calculate, collect, report, or remit any taxes to any tax authority arising from any Transaction. TEZ specifically disclaims any liability for taxes.
To the extent You are not exempt, TEZ, Processor, and Bank are required to report to the IRS Your annual gross processing volume. TEZ or Processor will provide a form 1099-K, as required by Law. TEZ may, on behalf of the IRS, collect from You federal backup withholding upon Transaction settlement if You do not supply Your legal name or tax identification number or if You fail to respond to a request from TEZ to verify the same.
23. Independent Contractors
In the performance of its duties herein, each party shall be an independent contractor, not an employee or agent of the other party. Neither party shall owe fiduciary duties to the other party. You acknowledge that You are liable and responsible for the acts and omissions of Your employees, contractors, agents, and service providers.
24. Assignment; Successors and Assigns; Third Party Beneficiaries
These Payment Terms may not be assigned by You without the prior written consent of TEZ.
These Payment Terms will inure to the benefit of and will be binding upon the parties and their respective permitted successors and assigns. You acknowledge that Processor and Bank are intended and express third party beneficiaries of these Payment Terms and that Processor and Bank are entitled to the rights and benefits hereunder and that either or both may enforce these Payment Terms as if it were a party. Except as stated in the preceding sentence, the parties do not intend to create, and expressly disclaim the existence of, any third-party beneficiaries of these Payment Terms.
25. Governing Law
These Payment Terms shall be governed and construed in accordance with the laws of the State of Texas without regard to its principles of conflict of laws.
26. ARBITRATION AND CLASS WAIVER
Any dispute, claim, or controversy relating in any way to these Payment Terms, Your use of the Payment Services, or termination of these Payment Terms, other than a court action to enjoin infringement or other misuse of intellectual property rights, will be resolved by binding arbitration, rather than in court, except that You may assert claims in small claims court if Your claims qualify. The Federal Arbitration Act and federal arbitration law apply to these Payment Terms. The arbitration will be conducted by the American Arbitration Association (https://www.adr.org) under its Commercial Arbitration Rules. Any arbitration hearing will occur in Dallas County, Dallas, Texas or another mutually agreeable location. The arbitrator will apply the substantive law of the State of Texas, exclusive of its conflict or choice of law rules. Either party may commence arbitration by providing to the American Arbitration Association and the other party to the dispute a written demand for arbitration, setting forth the subject of the dispute and the relief requested. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the maximum extent permitted by law, the parties agree that any dispute, claim, or controversy in connection with these Payment Terms, whether in arbitration or in court, will be conducted only on an individual (non-class or non-representative) basis. You waive any right to have any dispute, claim, or controversy in connection with these Payment Terms decided by a jury, and You also waive any right to participate in a class action against TEZ or its affiliates.
27. General Provisions
The words “herein,” “hereof,” “hereunder,” and other words of similar import refer to these Payment Terms as a whole and not to any particular section or other subdivision. All variations of the word “include” will be deemed to be followed by the words “without limitation,” unless otherwise specified. The various headings contained herein are for reference purpose only and do not limit or otherwise affect any of the provisions hereof. It is the intention of the parties that no provision be construed more strictly with regard to one party than with regard to the other.
TEZ may at any time amend these Payment Terms, including the Payout and Fee Schedules, upon thirty (30) days’ notice to You. In the event You disagree with any such amendments, Your sole remedy shall be to terminate these Payment Terms as set forth in Section 15 (Termination). Your failure to provide notice of termination prior to the implementation of any amendment shall be considered acceptance of such changes.
Any right, obligation, or provision under these Payment Terms that, by its description or nature, should survive termination of these Payment Terms, will survive the termination of these Payment Terms, including the terms set forth in Sections 7 - 14, and 17 - 19.
Any delay, waiver, or omission by a party to exercise any right or power arising from any breach or default of the other party in any of the terms, provisions or covenants of these Payment Terms shall not be construed to be a waiver of any subsequent breach or default of the same or any other terms, provisions or covenants on the part of the party. Any waiver shall not be deemed to modify any of the terms of these Payment Terms. All remedies afforded by these Payment Terms for a breach hereof shall be cumulative.