THE SERVICE
1. Our Role. The Viston Global LP service (“Viston Global Payments” or the “Payments Services”)
is a: (i) merchant/payment account boarding; (ii) merchant/payment underwriting; and, (iii)
merchant/payment data transmission service that helps you integrate with a payment processor
(the “Processor”), as described more fully in this Agreement. You hereby appoint us as your
agent to deliver information and instructions on your behalf to the Processor. Under these Terms
Viston Global LP provides you with its payment assistance services, marketing, and other
services (collectively, the “Viston Global Services”). Neither Viston Global LP nor its
subsidiaries shall be considered as a bank, payment institution, or money services business, but
are instead, respectively, a supplier of the Viston Global LP Services supplied under the Viston
Global LP Terms and under this Agreement.
2. The Processor. The Processor is a bank, payment institution, or money services business
Viston Global LP has partnership agreement with, which is a technical services provider and may
offer the services as an agent of one or more financial institutions (each, a “Financial
Services Provider”). The processing and settlement of Transactions (as defined below) (“Payment
Processing”) is carried out by the Processor and any of the Financial Services Providers under a
separate Agreement. By accepting these Terms, you are also accepting and agreeing to be bound by
the Processor Terms, which is the legal agreement between you and the Processor. Viston Global
LP is not a party to the Processor Terms and is not liable to you in respect thereof. By
accepting this Agreement and the Processor Terms you are agreeing to the creation of an account
with the Processor for Payment Processing (the “Processor Account”). We reserve the right to
change the Processor, subject to the terms of our agreement with the Processor. In the event of
any inconsistency between this Agreement and the Processor Terms, this Agreement shall prevail,
except in the event of any inconsistency between this Agreement and the Processor Terms
concerning Payment Processing or the Processor Account, in which case the Processor Terms shall
prevail. The Processor’s role is to accept and process credit card, debit card and other types
of payments (collectively “Cards”) with respect to sales of your products and services through
internet-based transactions (“Card Not Present Transactions” or “CNP Transactions”). If
applicable, POS Equipment permits transmission of data to the Processor from in-person,
point-of-sale transactions (“Card Present Transactions” or “CP Transactions”), as well as
manually entered transactions (“Keyed Transactions”). CNP Transactions, CP Transactions and
Keyed Transactions shall be referred to herein, collectively, as “Transactions”.
3. Your Role. To utilize the Services, you must be a legally incorporated business.
4. Web POS Equipment. If applicable, you may elect to purchase Web POS Equipment from Viston
Global LP that will allow you to accept CP Transactions and Keyed Transactions.
5. Payment Methods. The Payments Services support most Payment Network Cards, including credit,
debit, pre-paid, or gift cards. You assume sole and exclusive responsibility for the use of the
Payments Services. You also assume sole and exclusive responsibility for Transactions under the
Processor Terms. You are solely responsible for verifying the identity of customers and of the
eligibility of a presented Card used to purchase your products and services, and Viston Global
LP does not guarantee or assume any liability for Transactions authorized and completed that may
later be reversed or charged back. You are solely responsible for all reversed or charged back
transactions regardless of the reason for, or timing of the reversal or chargeback. Viston
Global LP or the Processor may add or remove one or more types of Payment Networks or Cards, in
their sole discretion, at any time, without prior notice to you.
6. Customer Service. Viston Global LP will use its commercially reasonable efforts to provide
you with customer support to help resolve issues relating to the Payments Services. The
Processor retains sole and exclusive responsibility for Payment Processing of Transactions,
including the settlement of funds, but Viston Global LP will provide reasonable assistance in
liaising between you and the Processor concerning the Payment Processing services. You assume
sole and exclusive responsibility for providing customer service or support to your customers
for any and all issues related to your products and services, including, but not limited to,
issues arising from the processing of Cards through the Payments Services.
7. Taxes. You have sole and exclusive responsibility to determine what, if any, taxes apply to
the sale of your goods and services and/or the payments you receive in connection with your use
of the Payments Services (“Taxes”). It is solely your responsibility to assess, collect, report,
or remit the correct Taxes to the proper tax authority, whether in customers’ jurisdictions,
your jurisdiction or elsewhere. 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. Viston Global LP and/or Processor retains the right, but not the obligation, at its
sole discretion, to complete and file tax or related reports with tax authorities regarding
Transactions in those jurisdictions where Viston Global LP and/or Processor deems such reporting
necessary. You hereby indemnify and hold Viston Global LP and/or Processor harmless from and
against any and all liability related to Taxes and filings made by Viston Global LP and/or
Processor in respect thereof. You agree that we may send you any tax-related information
electronically.
8. Your Customers. If prohibited by law, you will not impose any fee or surcharge on a customer
that seeks to use an eligible Card. You will provide an informational slip or receipt to your
customer at the conclusion of the Transaction that includes all information required under
Payment Network Rules and applicable law.
9. Security. We maintain commercially reasonable administrative, technical and physical
procedures to protect all the personal information regarding you and your customers that is
stored in our servers from unauthorized access, accidental loss, or modification. Viston Global
LP cannot, however, guarantee that unauthorized third parties will never be able to defeat those
measures or use such personal information for improper purposes.
10. Data Security. You assume full responsibility for the security of data on your website or
otherwise in your possession or control. You agree to comply with all applicable laws and rules
in connection with your collection, security, and dissemination of any personal, financial,
Card, or Transaction information (collectively, “Data”, and as pertains to your customers,
“Cardholder Data”). You agree that at all times you shall be compliant with applicable Payment
Card Industry Data Security Standards (“PCI-DSS”) and, as applicable, the Payment Application
Data Security Standards (“PA-DSS”). You agree to promptly provide Viston Global LP and/or
Processor with documentation evidencing your compliance with PCI-DSS and/or PA-DSS upon request.
You also agree that you will use only PCI-DSS and PA-DSS compliant service providers in
connection with the storage or transmission of Card information, including a cardholder’s
account number, expiration date, and CVV2. You must not store CVV2 data at any time. Information
on PCI-DSS can be found on the PCI Council’s website. It is your responsibility to comply with
these standards and all the Payment Network Rules.
11. Audit Right. If Viston Global LP believes that a security breach, personal data breach, or
other compromise of data may have occurred, Viston Global LP may require you to have a
third-party auditor that is approved by Viston Global LP conduct a security audit of your
systems and facilities and issue a report to be provided to Viston Global LP and, at Viston
Global LP’s discretion, to the Processor, its Financial Services Provider, Payment Networks, and
law enforcement, at your sole cost and expense.
12. Privacy. Your privacy and the protection of your data are very important to us. You
acknowledge that you have received, read in full, and agree with the terms of our Privacy Policy
and the Processor’s Privacy Policy. Our Privacy Policy is hereby incorporated into this
Agreement. Viston Global LP’s Privacy Policy and the Processor’s Privacy Policy contain
important information about the collection, use, retention, and disclosure of personal
information, as well as other important matters, and explains how and for what purposes we and
the Processor collect, use, retain, disclose and safeguard the information you provide to us.
You agree that Viston Global LP’s Privacy Policy and the Processor’s Privacy Policy may be
modified at Viston Global LP’s or the Processor’s option, if necessary, and you will check each
Privacy Policy on a regular basis. Additionally, you agree that Viston Global LP’s collection,
use, retention, and disclosure of personal information is subject to our Privacy Policy. We will
at all times comply with the provisions of applicable data protection law, including the EU
General Data Protection Regulation (“GDPR”), as applicable. If we process any of your personal
data when performing our obligations under this Agreement, we will do so as a “data controller”,
as defined by the GDPR. If we process any Cardholder Data on your behalf, we and you both agree
that it is our intention that you shall be the “data controller” and we shall be the “data
processor” in relation to that data, as those terms are defined in the GDPR. We shall process
the personal data only in accordance with the terms of this Agreement and any lawful
instructions reasonably given by you to us from time to time. Additionally, you acknowledge that
the Processor and a fraud detection service, each independently serve as “data controllers” with
regards to any personal data that they may processes under this Agreement and that we are not
responsible for how they process such data. We will notify you (within a reasonable time frame)
if we receive a request from a person to have access to, or to erase that person’s personal
data, a complaint or request relating to your obligations under applicable data protection
legislation, or any other communication relating directly to the processing of any personal data
in connection with this Agreement. You acknowledge that such requests may be subject to
independent legal retention or confidentiality requirements, as permitted by the GDPR. We will
provide you with reasonable co-operation and assistance in relation to any complaint or request
made in respect of any personal data processed by us on your behalf, including by providing you
with details of the complaint or request, helping you to comply with any data subject access
requests (within the relevant timescales set out in applicable data protection legislation), and
providing you with any personal data we hold in relation to a person making a complaint or
request (again, within a reasonable timescale). You acknowledge that we are relying on you for
direction as to the extent to which we are entitled to use and process the personal data in the
Cardholder Data that you provide us with. Consequently, we will not be liable for any claim
brought by a data subject arising from any action or omission by us, to the extent that such
action or omission resulted from your instruction. You consent to the exchange of your
information between the account you have established at Processor and the Payments Services
established under this Agreement. Viston Global LP will commingle such accounts and refers to
them together in this Agreement as the “Payments Account”. Where a data subject is located in
the European Economic Area, that data subject’s personal data will be processed by Viston Global
LP, in accordance with our Privacy Policy. As part of providing the Payments Services, this
personal data may be transferred to other regions. Additionally, in order to process, use,
record, and disclose your personal information, information related to your business, and Data,
we or our agents may transfer such information to and receive it from the Processor, its
Financial Services Provider, or their respective agents and, in so doing, we may transmit or
possess it outside of your jurisdiction. Additionally, in order to provide the Payments
Services, we use a variety of third party “sub-processors” that fall into many broad categories
– for example, we use sub-processors to help us: (i) protect you and Viston Global LP from
potentially risky transactions, security threats, or fraud; (ii) perform administrative tasks;
(iii) deliver portions of the Payments Services (e.g., third parties that work with us to
actually process credit card payments or conduct any shipping); (iv) develop and improve our
products and the Payments Services; (v) generate analytics or other information relating to the
Payments Services; and, (vi) build our technical infrastructure (e.g., using cloud storage
providers or information security vendors). By using the Payments Services, you consent to our
use of sub-processors, which is described in more detail in our Privacy Policy.
13. Privacy of Others. You represent to us that you are in compliance with all applicable
privacy laws and that you maintain a publicly accessible privacy policy that accurately
discloses how you collect, use, and disclose personal data, including through the Payments
Services. Additionally, you represent to us that you have obtained all necessary rights and
consents under applicable law to allow us and the Processor to collect, use, retain, and
disclose any Cardholder Data that you provide to, or authorise us to collect, including
information that we may collect directly from you of your customers via cookies or other means
and to use that data to provide the Payments Services (e.g., to process Transactions and to
screen for fraud or compliance purposes). Further, you represent that we will not be in breach
of any such laws by collecting, receiving, using, and disclosing such information in connection
with the Payments Services as described in our Privacy Policy. As between the parties to this
Agreement, you are solely responsible for disclosing to your customers that we will collect and
process their Cardholder Data in our supply of the Payments Services to you, and that in so
doing we may transmit or possess it outside of your or their jurisdiction, and that it may be
subject to disclosure as required by applicable law. If you receive information about others,
including cardholders and other customers, through the use of the Payments Services, you must
keep such information confidential and only use it in connection with the Payments Services or
as otherwise permitted by the subject of such information. You may not disclose or distribute
any such information to a third party or use any such information for marketing purposes unless
you receive the express consent of the subject thereof to do so. You may not disclose Cardholder
Data to any third party other than in connection with processing a Transaction requested by your
customer.
14. Restricted Use. You are required to obey all laws, rules, and regulations applicable to your
use of the Payments Services (e.g., including those governing financial services, consumer
protections, unfair competition, anti-discrimination, or false advertising). In addition to any
other requirements or restrictions set forth in this Agreement, you shall not: (i) utilize the
credit available on any Card to provide cash advances to cardholders; (ii) submit any
Transaction for processing that does not arise from your sale of goods or service to a customer;
(iii) act as a payment intermediary or aggregator or otherwise resell the Payments Services on
behalf of any third party; (iv) send what you believe to be potentially fraudulent
authorizations or fraudulent Transactions; or, (v) use the Payments Services or the Payment
Processing services in a manner that a Payment Network reasonably believes to be an abuse of the
Payment Network or a violation of the Payment Network Rules. You further agree not to permit any
third party to do any of the following: (i) access or attempt to access our systems, programs,
or data that are not made available for public use; (ii) copy, reproduce, republish, upload,
post, transmit, resell, or distribute, in any way, material from us; (iii) permit any third
party to use and benefit from the Payments Services via a rental, lease, timesharing, service
bureau, or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v)
work around any of the technical limitations of the Payments Services, use any tool to enable
features or functionalities that are otherwise disabled in the Payments Services, or decompile,
disassemble, or otherwise reverse engineer the Payments Services, except to the extent that such
restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that
would interfere with the proper working of the Payments Services, prevent access to or use of
the Payments Services by our other users, or impose an unreasonable or disproportionately large
load on our infrastructure; or, (vii) otherwise use the Payments Services except as expressly
allowed under this section.
15. Suspicion of Unauthorized or Illegal Use. We reserve the right to not provide the Payments
Services in respect of any Transaction you submit that we believe, in our sole discretion, is in
violation of this Agreement, any other Viston Global LP or Processor agreement, or exposes you,
Viston Global LP, the Processor, or any other third party to actual or potential risk or harm,
including, but not limited to, fraud and other criminal acts. You are hereby granting us
authorization to share information with law enforcement about you, your Transactions, or your
Payments Account.
16. Payment Network Rules. The Payment Networks have established guidelines, bylaws, rules, and
regulations in the form of the Payment Network Rules. You are required to comply with all
applicable Payment Network Rules. The Payment Networks may amend the Payment Network Rules at
any time and without notice to us or to you. Insofar as the terms of this Agreement and/or the
Processor Terms are inconsistent with the Payment Network Rules, the Payment Network Rules shall
prevail. We reserve the right to amend this Agreement at any time, without notice to you, as may
be necessary to comply with the Payment Network Rules.
17. Disclosures and Notices. You agree that Viston Global LP can provide disclosures and
notices, including tax forms, that we deem appropriate regarding the Payments Services to you.
You also agree that electronic disclosures and notices have the same meaning and effect as if we
had provided you with a paper copy. Such disclosures and notices shall be considered to be
received by you within twenty-four (24) hours of the time it is emailed to you, unless we
receive notice that the email was not delivered.
18. Automatic Reminders. We may use automated telephone dialling, text messaging systems, and
email to provide messages to you about your Payments Account. The telephone messages may be
played by a machine automatically when the telephone is answered, whether answered by you or
another party. These messages may also be recorded by your answering machine or voicemail. You
give us permission to call or send a text message to any telephone number that you have given us
and to play pre-recorded messages or send text messages with information about this Agreement or
your account over the phone. You agree that we will not be liable to you for any such calls or
electronic communications even if information is communicated to an unintended recipient. You
understand that when you receive such calls or electronic communications you may incur a charge
from the company that provides you with telecommunications, wireless and/or Internet services.
You agree that we have no liability for such charges. You agree to immediately notify us if you
change telephone numbers or are otherwise no longer the subscriber or customary user of a
telephone number or email address you have previously provided to us.
GETTING A PAYMENTS SERVICES ACCOUNT
19. Registration. The Payments Services are only made available to persons worldwide that
operate a business selling goods and services. You may not use the Payments Services for
non-commercial, personal, family, or household purposes. To use Payments Services for your
business, you are required to register for a Payments Account. When you register for a Payments
Account, we will collect information such as your name (if you are a sole proprietor), your
business or trade name, your address, email, phone number, business identification or
registration number, and certain other information that we require. We may also collect personal
information (including name, birthdate, and government-issued identification number) about your
beneficial owners or principals. You may register as an individual (sole proprietor) or as a
corporation or other legal entity. If you register as a corporation or other legal entity, you
must be authorized to act on behalf of such entity, have the authority to bind the entity to
this Agreement, and you must agree to this Agreement on behalf of such entity. If you have so
agreed, the term “Merchant”, “you” or “your” will mean you, the natural person acting as a
business, if you are a sole proprietor, or if you have registered as a corporation or other
legal entity, it will mean that entity. You understand that by registering for a Payments
Account, you are also registering for a Processor Account under the Processor Terms and that you
are simultaneously providing your information to Viston Global LP for the purpose of opening a
Payments Account, and to the Processor for the purpose of establishing your Processor Account.
20. Company Descriptions and Site URL. As part of your registration, you must provide the name
under which you do business (which may be the business’ legal name or a “doing business name”)
and a billing descriptor. These two fields and your site URL may appear in your customers’
credit or debit card statements. To avoid customer confusion and Transaction disputes it is
important that you enter a description that clearly identifies your business. You hereby agree
to indemnify us from any costs, liabilities, losses, or expenses from disputes due to your
failure to do so.
21. Verification and Underwriting. To verify your identity, we may require additional
information, including your company registration number or business number, your tax number,
and, if applicable, your date of birth. We may also ask for additional information to help
verify your identity and assess your business risk, including, but not limited, to business
invoices, reseller authorization or distributor information, a driver’s license or other
government issued identification, or business license, for you or for any of the owners or
principals of your business. We may ask you for your financial statements. We may request your
permission to do a physical inspection at your place of business and to examine books and
records that pertain to your compliance with this Agreement. Your failure to comply with any of
these requests within five (5) days may result in suspension or termination of your Payments
Account. You authorize us to retrieve additional information about you from third parties and
other identification services. We reserve the right to hold funds in your Payments Account while
awaiting the information requested above. Viston Global LP may use your information to apply for
card merchant acquiring accounts on your behalf with certain Payment Networks. After we have
collected and verified all your information, we will review your account and determine if you
are eligible to use the Payments Services. We will notify you once your Payments Account has
been either approved or deemed ineligible for use of the Payments Services. By accepting the
terms of this Agreement, you are providing us with authorization to retrieve information about
you by using third parties, including credit bureaus and other information providers. You
acknowledge that such information retrieved may include your name, address history, credit
history, and other data about you. We may periodically update this information to determine
whether you continue to meet the eligibility requirements for a Payments Account. You agree that
Viston Global LP is permitted to contact and share information about you and your application
(including whether you are approved or declined), your Payments Account with Processor. This
includes sharing information: (i) about Transactions for regulatory or compliance purposes; (ii)
for use in connection with the management and maintenance of the Payments Services; (iii) to
create and update our and their customer records about you, and to assist us and them in better
serving you; and, (iv) to conduct our and their risk management process.
22. Designated Country. In registering for a Payments Account, you are obliged to identify the
location from where you are operating the business that will use the Payments Services. By
registering for a Payments Account, you are confirming that you are either a legal resident of
the country you are duly established and, if necessary, registered or licensed as a business
entity authorized to conduct business. By accepting this Agreement, you confirm that you will
satisfy these requirements.
PROCESSING CARD TRANSACTIONS AND RECEIVING YOUR FUNDS
23. Viston Global LP Payments Fees. You agree to pay the fees for processing, which are
incorporated herein by reference (the “Processing Fees”). Processing Fees shall be collected
from you by the Processor in accordance with the terms. You are obligated to pay all applicable
taxes, fees and other charges imposed by any governmental authority, including, without
limitation, any value added tax, goods and services tax, harmonized sales tax and/or provincial
or territorial sales tax, on the Payments Services provided under this Agreement. If you are
tax-exempt, you will provide us with an appropriate certificate or other evidence of tax
exemption that is satisfactory to us. We reserve the right to change the Fees at any time. If
you continue to use the Payments Services and the Processor Services, then you are deemed to
have accepted the change in Fees contemplated by such notice. In addition to the Fees, you are
also responsible for any penalties and fines imposed on you or on us by any bank, money services
business, payment network, financial institution, or other financial intermediary resulting from
your use of the Payments Services in a manner not permitted by this Agreement or by such
financial intermediary’s rules and regulations.
24. Security Interest. As security for performance of your obligations under this Agreement, you
grant us a first priority lien and security interest on all funds processed and deposited into
all Accounts (as defined in the Processor Terms), and any other bank accounts associated with
your Payments Account, and in any funds processed using the Payment Processing services. These
security interests and liens will secure payment and performance of all of your obligations
under this Agreement and any other agreements now existing or later entered into between us and
you, including, without limitation, your obligation to pay any amounts due and owing to us. You
will execute, deliver and pay the fees for any documents we request to create, perfect,
maintain, and enforce this security interest.
25. Our Collection Rights. To the extent permitted by law, we may collect any obligations you
owe us under this Agreement by requesting that the Processor deduct the corresponding amounts
from the Reserve Account (as that term is defined below) or from funds payable to you arising
from the settlement of Transactions. Fees will be assessed at the time a Transaction is
processed and will be first deducted from the funds received for such Transaction. If these
amounts are not sufficient to meet your obligations to us, we may charge the payment method
associated with your Payments Account for any amounts owed to us. Your failure to fully pay
amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our
costs associated with collection in addition to the amount owed, including, without limitation,
attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency
fees, and any applicable interest. Additionally, we may require a personal guarantee from a
principal of a business for funds owed under this Agreement. If we require a personal guarantee
we will specifically inform you in advance. In addition to the amount due, delinquent accounts
may be charged with fees that are incidental to the collection of delinquent accounts and
chargebacks, including, but not limited to, collection fees and convenience fees and other
third-party charges. You hereby explicitly agree that all communication in relation to
delinquent accounts will be made by electronic mail or by phone, as provided to Viston Global LP
by you. Such communication may be made by Viston Global LP or by anyone on its behalf,
including, but not limited to, a third-party collection agent.
26. Rolling Reserves. Funds held in reserves are amounts of money held by Processor set aside to
cover chargebacks, refunds, or other payment obligations under this Agreement (the “Reserve
Account”). We, in our discretion, will set the terms of your Reserve Account and notify you of
such terms, which may require that a certain amount (including the full amount) of the funds
received for a Transaction are held for a period of time, or that additional amounts are held in
the Reserve Account. We, in our discretion, may elect to change the terms of the Reserve Account
at any time, for any reason, based on your payment processing history or as requested by our
payment processors. We may require you to fund the Reserve Account by means of: (i) any funds
pay-outs made or due to you for Transactions submitted to the Payments Services; or, (ii)
amounts available in your bank account; or, (iv) other sources of funds associated with your
Payments Account; or, (iv) requesting that you provide funds to Processor for deposit to the
Reserve Account. You agree that: (i) you are not entitled to any interest or other compensation
associated with the funds held in the Reserve Account; (ii) you have no right to direct that
account; (iii) you have no legal interest in those funds or that account; and, (iv) you may not
assign any interest in those funds or that account.
27. Contesting Chargebacks. You or Viston Global LP may elect to contest chargebacks assessed to
your account. Viston Global LP may provide you with assistance, including notifications and
software to help contest your chargebacks. We do not assume any liability for our role or
assistance in contesting chargebacks. You grant us permission to share records or other
information required with the cardholder, the cardholder’s financial institution, and your
financial institution to help resolve any chargeback. You acknowledge that your failure to
provide us with complete and accurate information in a timely manner may result in an
irreversible chargeback being assessed. If the cardholder’s issuing bank or the Payment Network
does not resolve a dispute in your favour, we may recover the chargeback amount and any
associated fees from you as described in this Agreement. We reserve the right, upon notice to
you, to charge a fee for mediating or investigating chargeback disputes.
TERMINATION AND OTHER GENERAL LEGAL TERMS
28. Term. The Agreement is effective upon the date you agree to it (by electronically indicating
acceptance) and continues so long as you use the Payments Services or until terminated by you or
by Viston Global LP and/or Processor.
29. Termination You may terminate this Agreement by closing your Payments Account. We may
terminate this Agreement and close your Payments Account at any time, for any reason, upon
notice to you. We may suspend your Payments Account and your access to the Payments Services and
any rights in respect of your Payments Account, or terminate this Agreement, at any time, for
any reason, including if: (i) we determine that you may be ineligible for the Payments Services
because of the risk associated with your Payments Account, including, without limitation,
significant credit or fraud risk, or for any other reason; (ii) you do not comply with any of
the provisions of this Agreement or the Processor Terms; or, (iii) upon request of the Payment
Network, the Processor, or a Card issuer. Termination of the Processor Terms may, at the
discretion of VISTON GLOBAL LP, result in a termination of this Agreement. Termination of this
Agreement shall entitle Viston Global LP to cause the Processor to terminate the Processor
Terms. If the Processor terminates the Processor Terms or indicates its intention to do so, or
if you elect to cease processing with such Processor, we have the right, but not the obligation,
to offer you a substitute payment processor that is integrated with the Payments Account. Upon
your acceptance of the terms of service of such substitute payment processor, they shall be
deemed to have replaced the Processor contemplated herein, provided that your liabilities to the
Processor herein shall not be diminished on account of accepting the terms of the substitute
payment processor.
30. Effects of Termination. Upon termination and closing of your Payments Account, we will
immediately discontinue your access to the Payments Services. You agree to complete all pending
Transactions, immediately remove all logos for Cards, and stop accepting new Transactions
through the Payments Services. You will not be refunded the remainder of any Fees that you have
paid for the Payments Services if your access to or use of the Payments Services is terminated
or suspended. Any funds in the Financial Services Provider’s custody will be paid out to you
subject to the terms as defined in the Processor Terms. Termination does not relieve you of your
obligations as defined in this Agreement, and the Processor may elect to continue to hold any
funds deemed necessary, pending resolution of any other terms or obligations defined in this
Agreement, including, but not limited to, chargebacks, fees, refunds, or other investigations or
proceedings. Upon termination you agree: (i) to immediately cease your use of the Payments
Services; (ii) to discontinue use of any Viston Global LP or Processor trademarks and to
immediately remove any Viston Global LP or Processor references and logos from your website
and/or physical location, if applicable; (iii) that the license granted under this Agreement
shall end; (iv) that we reserve the right (but have no obligation) to delete all of your
information and account data stored on our servers; (v) that we will not be liable to you for
compensation, reimbursement, or damages in connection with your use of the Payments Services, or
any termination or suspension of the Payments Services, or deletion of your information or
account data; and, (vi) that you will still be liable to us for any fees or fines, or other
financial obligation incurred by you or through your use of the Payments Services prior to
termination.
31. Ownership. The Payments Services are licensed and not sold. We reserve all rights not
expressly granted to you in this Agreement. The Payments Services are protected by copyright,
trade secret, and other intellectual property laws. We own the title, copyright, and other
worldwide Intellectual Property Rights (as defined below) in the Payments Services and all
copies of the Payments Services. This Agreement does not grant you any rights to our trademarks
or service marks. For the purposes of this Agreement, “Intellectual Property Rights” means all
patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark,
trade dress and service mark rights, goodwill, trade secret rights and other intellectual
property rights as may now exist or hereafter come into existence, and all applications
therefore and registrations, renewals and extensions thereof, under the laws of any state,
country, territory or other jurisdiction. You may choose to, or we may invite you to submit
comments or ideas about the Payments Services, including, without limitation, about how to
improve the Payments Services or our products (“Ideas”). By submitting any Idea you agree that
your disclosure is gratuitous, unsolicited and without restriction, and will not place us under
any fiduciary or other obligation, and that we are free to use the Idea without any additional
compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to
anyone. You further acknowledge that, by acceptance of your submission, we do not waive any
rights to use similar or related ideas previously known to us, or developed by our employees, or
obtained from sources other than you.
32. Your Liability and Indemnification Concerning Liabilities. Nothing in this Agreement shall
serve to diminish your liability under the Processor Terms or Viston Global LP Terms. You are
obliged to fulfil your obligations under this Agreement and those under the Processor Terms and
Viston Global LP Terms. Viston Global LP has agreed to indemnify and hold the Processor harmless
for some, and, in some cases, all of your liabilities occurring under the Processor Terms,
including, but not limited to, disputes (including, but not limited to, chargebacks), refunds,
reversals, returns and fines (as such terms are defined in the Processor Terms). Insofar as
Viston Global LP becomes liable to the Processor or any other third party for any penalties,
fines, fees, or other liabilities under or in respect of the Processor Terms, the Payments
Services, the Payment Processing services, or the Payment Network Rules, you agree to indemnify
and hold Viston Global LP harmless from and against any and all such liabilities. Additionally,
we may require a personal guarantee from a principal of a business for funds owed under this
Agreement. You agree to indemnify and defend Viston Global LP, our affiliates, and their
respective employees, agents and service providers (each, a “Viston Global LP Entity”) against
any claim, suit, demand, loss, liability, damage, action, or proceeding (each, a “Claim”)
brought by a third party against a Viston Global LP Entity, and you agree to fully reimburse the
Viston Global LP Entities for any Claims that result from: (i) your breach of any provision of
this Agreement; (ii) any fees, fines, penalties, disputes, reversals, returns, chargebacks (as
such terms are defined in the Processor Terms), or any other liability we incur that results
from your use of the Payments Services; (iii) negligent or wilful misconduct of your owners,
employees, contractors, or agents; (iv) contractual or other relationships between you and your
customers; or, (v) third-party indemnity obligations we incur as a direct or indirect result of
your acts or omissions, including, but not limited to, indemnification of the Processor or any
Payment Network. We will have the final decision-making authority with respect to Claims,
including, without limitation, claims for refunds for purchased items that are filed with us by
you or your customers. You will be required to reimburse us for your liability. Your liability
will include the full purchase price of the item plus the original shipping cost (and in some
cases you may not receive the item back). You will not receive a refund of any Fees paid to us.
If you are liable for any amounts owed to us, we may ask Processor immediately to remove such
amounts from your Rolling Reserve and deduct the amounts owed to us from such Reserve funds. If
you do not have sufficient funds in the Rolling Reserve to cover your liability, you will be
required to immediately add additional funds to your Rolling Reserve to cover funds owed to us.
If you do not do so, we may engage in collections efforts to recover such amounts from you at
your cost and expense.
33. Your Representations, Warranties and Covenants. You represent and warrant to us that: (i) if
you are a sole proprietor, you are at least eighteen (18) years of age or, if you are a
corporation or other entity, that the person entering into this Agreement on your behalf is at
least eighteen (18) years of age, is authorized to act on your behalf, and has the authority to
bind you to this Agreement; (ii) you are eligible to register and use the Payments Services and
have the right, power, and ability to enter into and perform under this Agreement; (iii) the
name identified by you when you registered is your name or business name under which you sell
goods and services and the information that you have provided to us is accurate and complete;
(iv) you are not a member of an organized crime group, a party who has been a member of an
organized crime group in the past five years, a quasi-member of an organized crime group, a
corporate racketeer, or other similar party, nor are any of your officers or employees a member
of the foregoing; and, (v) you will not carry out, nor use a third party to carry out, any of
the following unlawful acts: (a) the act of making violent demands; (b) the act of making
unreasonable demands exceeding legal responsibilities; (c) the act of using threatening
behaviour or violence in relation to a transaction; (d) the act of spreading rumours, using
fraudulent means, or using force to harm the other party’s reputation or obstruct the party’s
business; (e) the act of selling products for the purpose of money laundering; (f) the act of
using a Card held by you for a sale without reasonable grounds or another act similar to those
set forth in (a) through (f). You hereby covenant to us that: (i) any Transactions submitted by
you will represent a bona fide sale by you; (ii) any Transaction submitted by you will
accurately describe the goods and/or services sold and delivered to a customer; (iii) you will
fulfil all of your obligations to each customer for which you submit a Transaction and will
resolve any disputes or complaints directly with your customers; (iv) you and all Transactions
initiated by you will comply with all applicable laws, rules, and regulations applicable to your
business, including, but not limited to, any applicable tax laws and regulations; (v) except in
the ordinary course of business, no Transaction submitted by you through the Payments Services
will represent a sale to any principal, partner, proprietor, or owner of your entity; (vi) you
will not use the Payments Services, directly or indirectly, for any fraudulent undertaking or in
any manner so as to interfere with the use of the Payments Services; and, (vii) any information
you provide to us will be accurate and complete.
34. NO WARRANTIES. THE PAYMENTS SERVICES AND ALL ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN
“AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT. USE OF THE PAYMENTS SERVICES IS AT YOUR OWN RISK. NO
ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE PAYMENTS
SERVICES OR FROM: (I) VISTON GLOBAL LP; (II) THE PROCESSOR, SUPPLIERS OR LICENSORS OF VISTON
GLOBAL LP OR THE PROCESSOR; OR, (III) ANY OF THE RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND
EMPLOYEES OF ANY OF THE ENTITIES LISTED IN (I) OR (II) ABOVE (COLLECTIVELY, THE “DISCLAIMING
ENTITIES” AND INDIVIDUALLY, A “DISCLAIMING ENTITY”), WILL CREATE ANY WARRANTY. YOU SPECIFICALLY
ACKNOWLEDGE THAT WE DO NOT HAVE ANY CONTROL OVER THE PRODUCTS OR SERVICES THAT ARE PAID FOR WITH
THE PAYMENTS SERVICES, AND WE CANNOT ENSURE THAT YOUR CUSTOMERS WILL COMPLETE A TRANSACTION OR
ARE AUTHORIZED TO DO SO. WITHOUT LIMITING THE FOREGOING, THE DISCLAIMING ENTITIES DO NOT WARRANT
THAT: (I) THE INFORMATION THEY PROVIDE OR THAT IS PROVIDED THROUGH THE PAYMENTS SERVICES IS
ACCURATE, RELIABLE OR CORRECT; (II) THE PAYMENTS SERVICES WILL MEET YOUR REQUIREMENTS; (III) THE
PAYMENTS SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (IV) THE PAYMENTS
SERVICES WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; (V) ANY DEFECTS OR ERRORS WILL
BE CORRECTED; OR, (VI) THE PAYMENTS SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY SUBJECT MATTER DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PAYMENTS SERVICES IS
DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY
OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. THE DISCLAIMING ENTITIES MAKE NO
REPRESENTATIONS OR WARRANTIES ABOUT HOW LONG WILL BE NEEDED TO COMPLETE THE PROCESSING OF A
TRANSACTION. THE DISCLAIMING ENTITIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME
RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE
PAYMENTS SERVICES, OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER
ADVERTISING, AND NEITHER VISTON GLOBAL LP, THE PROCESSOR, NOR THE FINANCIAL SERVICES PROVIDER
WILL BE A PARTY TO, OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS
OF PRODUCTS OR SERVICES.
35. Limitation of Liability and Damages. IN NO EVENT SHALL A DISCLAIMING ENTITY (AS DEFINED
ABOVE) BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR ANY INDIRECT, PUNITIVE, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO
THIS AGREEMENT OR THE PAYMENTS SERVICES, INCLUDING, WITHOUT LIMITATION, THE USE OF, INABILITY TO
USE, OR UNAVAILABILITY OF THE PAYMENTS SERVICES. UNDER NO CIRCUMSTANCES WILL ANY OF THE
DISCLAIMING ENTITIES BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING,
TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PAYMENTS SERVICES OR YOUR PAYMENTS ACCOUNT,
OR THE INFORMATION CONTAINED THEREIN. THE DISCLAIMING ENTITIES ASSUME NO LIABILITY OR
RESPONSIBILITY FOR ANY: (I) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER,
RESULTING FROM YOUR ACCESS TO OR USE OF THE PAYMENTS SERVICES; (II) ANY UNAUTHORIZED ACCESS TO
OR USE OF SERVERS USED IN CONNECTION WITH THE PAYMENTS SERVICES AND/OR ANY AND ALL PERSONAL
INFORMATION STORED THEREIN; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE
PAYMENTS SERVICES; (IV) ANY SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE THAT
MAY BE TRANSMITTED TO OR THROUGH THE PAYMENTS SERVICES; (V) ANY ERRORS, INACCURACIES OR
OMISSIONS IN ANY CONTENT OR INFORMATION, FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE
OF ANY CONTENT OR INFORMATION, IN EACH CASE POSTED, EMAILED, STORED, TRANSMITTED, OR OTHERWISE
MADE AVAILABLE THROUGH THE PAYMENTS SERVICES; AND/OR (VI) USER CONTENT OR THE DEFAMATORY,
OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. WITHOUT LIMITING THE FOREGOING PROVISIONS OF
THIS SECTION, THE DISCLAIMING ENTITIES’ CUMULATIVE LIABILITY TO YOU SHALL BE LIMITED TO DIRECT
DAMAGES, AND IN ALL EVENTS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID BY YOU TO
VISTON GLOBAL LP DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE
TO THE CLAIM FOR LIABILITY. THIS LIMITATION OF LIABILITY SECTION APPLIES REGARDLESS OF THE LEGAL
THEORY ON WHICH THE CLAIM IS BASED, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF VISTON GLOBAL
LP OR THE PROCESSOR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PROVISIONS OF THIS
SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. The
Payments Services are controlled and operated from facilities in Ireland. We make no
representations that the Payments Services are appropriate or available for use in other
locations. Those who access or use the Payments Services from other jurisdictions do so at their
own volition and are entirely responsible for compliance with all applicable foreign and local
laws and regulations, including, but not limited to, export and import regulations. You may not
use the Payments Services if you are a resident of a sanctioned country or are a foreign person
or entity blocked or denied.
36. Disputes, Choice of Law, Jurisdiction, Venue and Miscellaneous. This Agreement is governed
by the laws of Ireland. The exclusive venue for any actions or claims arising under or related
to this Agreement shall be a court of Ireland. Viston Global LP may or may direct the Processor
to respond to and comply with any subpoena, warrant, or other legal order (“Legal Process”) that
we believe to be valid. The Processor or any applicable Financial Services Provider may deliver
or hold any funds, or any Data as required under such Legal Process, even if you are receiving
funds or Data on behalf of other parties. Where permitted by law, we will make reasonable
efforts to provide you notice of such Legal Process by sending a copy to the email address we
have on file for you. We are not responsible for any losses, whether direct or indirect, that
you may incur as a result of our response or compliance with a Legal Process. Headings are
included for convenience only and shall not be considered in interpreting this Agreement. The
Agreement does not limit any rights that we may have under trade secret, copyright, patent, or
other laws. Our failure to assert any right or provision under this Agreement shall not
constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be
deemed a further or continuing waiver of such term or any other term.
37. Right to Amend. We have the right to change or add to the terms of this Agreement at any
time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the
Payments Services or software with notice that we in our sole discretion deem to be reasonable
in the circumstances, including notice or any other website maintained or owned by us for the
purposes of providing services in terms of this Agreement. Any use of the Payments Services
after our publication of any such changes shall constitute your acceptance of this Agreement as
modified.
38. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be
transferred or assigned by you without our prior written consent, but may be assigned by us
without consent or other restriction.
39. Change of Business. You agree to give us at least thirty (30) days prior notification of
your intent to change your current product or services types, your business or trade name, or
the manner in which you accept payment. You agree to provide us with prompt notification within
three (3) days if you are the subject of any voluntary or involuntary bankruptcy or insolvency
application, petition or proceeding, receivership, bankruptcy, or similar action or proceeding
initiated by or against you or any of your principals (any of the foregoing, a “Bankruptcy
Proceeding”). You also agree to promptly notify us within three (3) days of any adverse change
in your financial condition, any planned or anticipated liquidation or substantial change in the
basic nature of your business, any transfer or sale of twenty-five percent (25%) or more of your
total assets, or any change in the control or ownership of your or your parent entity. You will
also notify us within three (3) days of any judgment, writ, warrant of attachment or execution,
or levy against twenty-five percent (25%) or more of your total assets. You will include us on
the list and matrix of creditors as filed with any bankruptcy, commercial or civil court in
connection with any Bankruptcy Proceeding, whether or not a claim may exist at the time of
filing. Failure to do so will be cause for immediate termination of this Agreement and shall
allow the pursuit of any other action available to us under the applicable Payment Network Rules
or law.
40. Parties. This Agreement binds you and your respective heirs, representatives, and permitted
and approved successors (including those by merger and acquisition), or any permitted assigns.
41. Third-Party Services and Links to Other Web Sites. You may be offered services, products,
and promotions provided by third parties and not by us. If you decide to use these third-party
services, you will be responsible for reviewing and understanding the terms and conditions
associated with these services. You agree that we are not responsible for the performance of
these services. The Viston Global LP website may contain links to third-party websites as a
convenience to you. The inclusion of any website link does imply an approval, endorsement, or
recommendation by us. You agree that your access to any such website is at your own risk, and
that the site is not governed by the terms and conditions contained in this Agreement. We
expressly disclaim any liability for these websites. Please remember that when you use a link to
go from our website to another website, our Privacy Policy is no longer in effect. Your browsing
and interaction on any other website, including those that have a link on our website, is
subject to that website’s own rules and policies.
42. Force Majeure. Neither party will be liable for any delay or non-performance of its
obligations under this Agreement to the extent that such delay or non-performance is a result of
any condition beyond its reasonable control (Force Majeure), including but not limited to,
governmental action, the war, riots, hurricane, typhoon, acts of terrorism, earthquake, fire,
flood, lightning, explosion strikes, lockouts, emergency state, pandemic or any other diseases
as defined by the World Health Organization (WHO), prolonged shortage of energy supplies, and
acts of state or governmental action prohibiting or impeding any party from performing its
respective obligations under the Agreement or other acts of God, labour conditions, power
failures, and Internet disturbances.
43. Entire Agreement and Remedies. These terms and conditions, and all policies and procedures
that are incorporated herein by reference, constitute the entire agreement between you and
Viston Global LP with respect to the provision of the Payments Services. Except as otherwise set
out herein, in the event of a conflict between this Agreement and any other Viston Global LP or
Processor agreement or policy, this Agreement shall prevail on the subject matter of this
Agreement. Except as expressly provided in this Agreement, these terms describe the entire
liability of Viston Global LP and our vendors and suppliers and sets forth your exclusive
remedies with respect to the Payments Services and your access and use of the Payments Services.
If any provision of this Agreement (or portion thereof) is held to be invalid or unenforceable
under applicable law, then it shall be changed and interpreted to accomplish the objectives of
such provision to the greatest extent possible under applicable law, and the remaining
provisions will continue in full force and effect. This Agreement has been reviewed by you with
the benefit of independent legal counsel to the extent you consider necessary, and any rule of
construction to the effect that ambiguities are to be resolved against the drafting party shall
not apply to the construction or interpretation of this Agreement. The rights conferred upon us
in this Agreement are not intended to be exclusive of each other or of any other rights and
remedies we may have at law or in equity. Rather, each and every right we may have under this
Agreement, at law or in equity, is cumulative and concurrent, and in addition to every other
right. 45. Survival. The Parties understand and agree that all terms and conditions of the
Agreement that require continued performance, compliance, or effect beyond the termination date
of the Agreement shall survive such termination date and shall be enforceable in the event of a
failure to perform or comply.
