- Platform Agreement Structure
- Part I - General Terms and Conditions
- Part II - Service Agreements
Thank you for choosing Moov Financial, Inc. for your financial technology needs. We appreciate this opportunity to serve your business.
This Moov Platform Agreement and its incorporated parts (collectively, this "Platform Agreement" or "Agreement"), as may be amended by Moov from time to time, sets forth the terms and conditions of and governs any and all services you use on the Moov Platform (each a "Service").
By indicating your acceptance of this Agreement electronically, by signing a copy of this Agreement, or by utilizing the services described in this Platform Agreement, you agree to be bound by the terms of this Platform Agreement by and between you, the legal entity or person you have registered to use the Services (the entity or person shall be referred to as "you" or "your" throughout this Platform Agreement), and Moov Financial, Inc. and its wholly-owned subsidiary, Moov Money, Inc. (collectively, "Moov," "we," "our," or "us").
CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE (SEE SECTION 47 OF THE GENERAL TERMS AND CONDITIONS).
Platform Agreement Structure
Part I of this Platform Agreement (the "General Terms and Conditions") contains the general terms and conditions applicable to the entire Moov Platform (including each of the Services offered through the Moov Platform) and your account which is established under this Platform Agreement. Part II of this Platform Agreement contains our "Service Agreements" (each a "Service Agreement"), which explain the Services that are available through the Moov Platform and provide terms and conditions relevant to each Service. To the extent that you utilize a Service on the Moov Platform, you also agree to the terms and conditions provided under the applicable Service Agreement. Some of the Services may be dependent on your use of one or more of the other Services. In such cases, you agree to all such applicable Service Agreements.
The current Service Agreements are organized as follows:
1.1 Moov Transfer Terms of Service: these terms and conditions that apply to your use of the Moov Platform to process ACH payment transfers within the Moov Platform.
1.2 Moov ACH Transfer Agreement: these terms and conditions authorize Moov to debit your Linked Account for amounts that are due to Moov or our Financial Services Providers.
1.3 Sub-Merchant Processing Agreement: these terms and conditions govern your use of Moov’s sub-merchant processing services which allow you to accept Payment Acceptance Methods (as defined in the Sub-Merchant Processing Agreement, including credit cards and debit cards).
In addition to the current set of Services which are described herein, Moov may incorporate and make available to you, new Services offerings ("New Services") under the terms and conditions of this Platform Agreement. In such cases, Moov may, in its sole discretion, either update any part of this Platform Agreement to reflect the addition of the New Service offering or provide you with a separate agreement to govern the New Service offering.
By indicating your acceptance of this Agreement electronically, by signing a copy of this Agreement, or by utilizing the services described in this Platform Agreement, you agree to comply with the terms and conditions of this entire Platform Agreement (including the General Terms and Conditions and each Service Agreement) and any other enrollment request or other enrollment documents that may be required to activate and provide a particular Service hereunder. This Introduction, the General Terms and Conditions, and the Service Agreements contained herein together with any Service Agreement(s) provided in connection with any New Service(s) offered through this Platform Agreement, and any applicable enrollment requests, as each may be amended from time to time, constitute this entire Platform Agreement.
Part I - General Terms and Conditions
1. Authority to Accept this Agreement. You represent and warrant that: (i) you have the authority to accept this Agreement on behalf of the legal entity or person you have registered to use the Services (the entity or person shall be referred to as "you" or "your" throughout this Agreement) and that you have and will provide accurate and complete responses as to any information requested by Moov; (ii) execution of this Agreement by the person representing you is sufficient to render the Agreement binding upon you; (iii) this Agreement will be a valid and binding obligation of you, enforceable against you in accordance with its terms; and (iv) the performance of your obligations under this Agreement does not violate applicable law or beach any other agreement to which you are bound.
2. Updates and Amendments to this Agreement. We may amend this Agreement at any time by providing notice to you. Notice may be provided to you on www.moov.io, through a technology interface, on any other website maintained by Moov, by email, by pop-up, or by any other reasonable means. You agree that we may provide you with notices of changes to this Agreement through any such means and that the amended Agreement is effective when posted or as of the date indicated, and your continued use of the Moov Platform constitutes your acceptance of any amended Agreement. You can find out when this Agreement was last changed by checking the "Last Updated" date at the top of the Platform Agreement.
3. Disclosures and Notices. By indicating your acceptance of this Agreement electronically, by signing a copy of this Agreement, or by utilizing the services described herein, you agree that such registration constitutes your electronic signature, and you consent to electronic provision of all disclosures and notices from Moov ("Notices"), including those required by Applicable Laws (as defined below). You also agree that your electronic consent will have the same legal effect as a physical signature. You agree that Moov can provide Notices regarding the Moov Platform, your account, this Agreement, or any of the Services to you through our technology interface, Moov’s website or mobile app, by email to the e-mail of record with Moov, by pop-up, or by mailing Notices to the physical addresses identified in your Moov Account. Notices may include notifications about your Moov Account, changes to the Moov Platform, or other information we are required to or may otherwise provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within 24 hours of the time a Notice is either posted to our website or mobile app or emailed to you. Notices that appear as a pop-up or through our technology interface will be considered received by you immediately upon your action to acknowledge the Notice. You authorize us to provide Notices to you via text message to allow us to verify your or a legal representative’s control over your Moov Account (such as through two-step verification), and to provide you with other critical information about your Moov Account. Standard text or data charges may apply to such Notices. Where offered, you may disable text message notifications by responding to any such message with "STOP", or by following instructions provided in the message. However, by disabling text messaging, you may be disabling important security features associated with your Moov Account and may increase the risk of loss to your business. You will need a computer or mobile device, internet connectivity, and an updated browser to access and review the Notices provided to you. If you are having problems viewing or accessing any Notices, please contact [email protected] and we may be able to find another means of delivery. Due to the nature of the Moov Platform, you will not be able to begin using the Moov Platform without agreeing to electronic delivery of Notices. However, you may choose to withdraw your consent to receive Notices electronically by terminating your Moov Account. In such cases, we may discontinue your use of the Moov Platform.
4. Service Providers; Third Party Vendors; Affiliates. Moov may, from time to time, contract with one or more service providers, third party vendors, or affiliates to provide the Moov Platform and the Services, which service providers, third party vendors, or affiliate may include Moov’s processor(s), bank(s), or financial institution(s) (collectively, the “"Financial Service Providers"”). You authorize us and our Financial Services Providers—if we choose to utilize Financial Services Providers—to provide the Moov Platform and Services.
5. Using the Moov Platform. Moov offers electronic payment services through various online services and the Moov application programming interfaces, and related technical, business and support services, each as may be modified or updated (collectively, referred to herein as the “"Moov Platform"”). The Moov Platform allows you to perform the following functions, subject to underwriting and approval by Moov and our Financial Services Provider:
- "Funds Disbursements" allows you to debit your external account, known as a "Linked Account," at an eligible financial institution such as a bank or credit union. These funds are brought into Moov via a wire transfer or automated clearing house ("ACH") transfer to your Moov Balance, which is held in an account located at a Financial Services Provider. From here, and upon Moov’s confirmation that the funding transactions have settled, you may send outbound payments to recipients ("Payment Recipients") using the Moov Platform. These payments will be sent via ACH or such other payment systems as we and a Financial Services Provider may enable in the future. For example, in the case of a request for an outbound payment to a recipient in which the recipient maintains an account through the Moov Platform, to the extent that the request is approved by Moov, Moov may, at its sole election, credit the recipient’s account with Moov in the amount of the outbound payment request (and such request may go into effect on the same business day on which Moov receives the request).
- "Consumer Payments" allows you, with respect to a consumer paying your business (a "Consumer Payor"), to debit the consumer’s account at the consumer’s financial institution. This is routed to our Financial Services Provider for the processing of ACH debit transactions to the identified accounts. Moov and its Financial Services Provider will act as your payment processor to collect these amounts from the various consumer accounts. These amounts are then settled to an account located at our Financial Services Provider. Once such funds are received, they may be either directed by you as an outbound Funds Disbursements or transferred to one or more your Linked Accounts.
- "Business Payments" allows you, with respect to a business with whom you have an existing business relationship (a "Business Payor"), to debit the business’s account at a financial institution. This is routed to our Financial Services Provider for the processing of ACH debit transactions to the identified accounts. Moov and its Financial Services Provider will act as your payment processor to collect these amounts from the various commercial accounts. These amounts are then settled to an account located at our Financial Services Provider. Once such funds are received, they may be either directed by you as an outbound Funds Disbursements or transferred to one or more your Linked Accounts.
- "Sub-Merchant Processing" allows you to set up a Sub-Merchant Account which is used to accept payments from Consumer Payors or Business Payors through certain Payment Acceptance Methods (as defined in the Sub-Merchant Processing Agreement, including credit cards and debit cards).
- Funds Disbursements, Consumer Payments, Business Payments, and Sub-Merchant Processing are referred to hereafter, collectively, as "Payment Transactions" or "Transactions." Consumer Payors and Business Payors are referred to hereafter, together, as "Payors."
6. Moov Provides a Software Platform. As set forth more fully in the Agreement, the Moov Platform gives you the ability to send and receive electronic payments. All funds transfer services are provided by our Financial Services Provider, as Moov does not receive, hold, or transmit funds. Moov provides the Moov Platform that allows you to send Transaction instructions to our Financial Services Provider. Any funds recorded as a balance in your Moov Account ("Moov Balance") are held in one or more pooled holding accounts held by our Financial Services Provider ("Holding Account").
The Holding Account is not your deposit account and you cannot establish a depository or financial account with Moov. Your Moov Account is solely a software platform account that allows you to provide Transaction instructions to our Financial Services Provider. THE FUNDS HELD IN A HOLDING ACCOUNT ARE NOT ELIGIBLE FOR INDIVIDUAL INSURANCE AND MAY NOT BE ELIGIBLE FOR SHARE INSURANCE OFFERED BY THE NATIONAL CREDIT UNION SHARE INSURANCE FUND. IN THE EVENT OF A FINANCIAL SERVICES PROVIDER RECEIVERSHIP, YOU MAY LOSE VALUE.
7. Online Services. You understand and acknowledge that the internet is an inherently insecure medium and the reliability of hosting services, internet intermediaries, your internet service provider and other service providers cannot be assured. When you use the Moov Platform, you represent, warrant and covenant that you accept these risks and the responsibility for choosing to use a technology that does not provide perfect security or reliability.
8. Moov Account. In order to use the Moov Platform and open and maintain a Moov user account ("Moov Account") pursuant to this Agreement, you must satisfy Moov’s onboarding criteria as such may be modified from time to time, in Moov’s sole and absolute discretion. Your use of the Moov Platform may be limited if your Moov Account is suspended, closed, or otherwise restricted. You represent, warrant, and covenant that you will not open or use your Moov Account for any personal, family, or household purposes. The Moov Account may only be used for commercial activities relating to your business.
9. Third Party Service Provider. If you are receiving access to the Moov Platform and the Services through a third party service provider that has been approved by Moov (a “"Third-Party Service Provider" or "TPSP")—which can include by means of an application developed or licensed by the TPSP or on the TPSP’s behalf that utilizes or interacts with a Moov Platform application programming interface):
- We will recover fees for use of the Moov Platform directly from the Third-Party Service Provider. The TPSP may bill you directly for separate fees and charges based on your agreement with the TPSP. Moov does not control and is not responsible for the fees that the TPSP charges to you. Moov is not responsible or liable for any matters arising from your agreement with the TPSP.
- Moov will retain the right to deduct or debit from your Moov Account and/or Linked Account (each, a "Payment Account") any fees due to Moov or any other amounts due under this Agreement, including in circumstances where TPSP fails to pay any fees on your behalf or where there is a Reversal or Chargeback.
- If you believe that fees have been incorrectly deducted, or that the TPSP has not properly disclosed its fees to you, please immediately contact Moov.
- If an instruction (or a request for cancellation or amendment of an instructions) received by Moov purports to have been transmitted by a TPSP, it will be deemed effective as TPSP’s instructions (or request) on your behalf, and you shall be obligated to pay Moov and Financial Services Provider the amount of such instruction (or request) even though the instruction (or request) was not transmitted by TPSP or authorized by you, provided Moov and Financial Services Provider acted in compliance with Moov’s security procedures. You agree that the security procedures are a commercially reasonable.
- Moov does not have control over your agreement with the TPSP and such relationship is solely under your control. The TPSP will act as your agent and does not act on behalf of Moov. You agree that any instructions transmitted by TPSP to Moov shall be deemed to have been authorized and initiated by you. If instructions are received from TPSP and processed by Moov and the Financial Services Provider, you will be bound, in all cases to any such instructions. If your TPSP provides you with access to directly manage your Moov Account through the Moov Platform, you are responsible for all actions taken on the Moov Account through the Moov Platform, including the initiation of transactions, transfers, or changing of Linked Account information.
10. Required Information About You. When you register for a Moov Account, you will be asked to provide information about your business and its legal structure which may include, but not be limited to: business name, address, phone number, email address, tax identification number, website address, business model, and any supporting documentation that we deem necessary in our reasonable discretion (such as copies of government-issued identification, proof of licensing, proof of financial condition, business policies, and other business or identification documentation). You will also be asked for information about any owners of the business (directly or indirectly), beneficial owners, parties authorized to act on behalf of the business, and authorized representatives, which may include but not be limited to: name, birthdate, tax identification number or equivalent, and any supporting documentation that we deem necessary in our reasonable discretion. Your ability to use the Moov Platform is subject to our satisfactory review of the information that you provide and our approval. You represent and warrant that any information that you provide to us about your business is accurate and complete and that you will keep this information up to date at all times. Failure to do so may result in termination of this Agreement by Moov or suspension of your right to access the Moov Platform. Your name (or the name used to identify you) and URL may appear on bank or other statements related to your Linked Account, or those of a Payment Recipient or Payor. To minimize confusion and avoid potential disputes, these descriptors must be recognizable to these parties and must accurately describe your business or activities.
11. Routine Business Operations Reviews. Moov reserves the right to reassess your eligibility for the Moov Platform at any time. Moov may immediately suspend provision of any of the Moov Platform in the event that Moov or its Financial Services Provider reasonably determines, based on any of the review processes described in this Agreement, that you have become ineligible for any of the Moov Platform or your continued use of the Moov Platform exposes you, Moov, or our Financial Services Provider to any risk for violation of applicable federal, state, or local law, regulations, regulatory guidance, payment network rules, or reputational risk, compliance risk, or financial risk (collectively, "Legal Risks").
12. Relationship to Third Parties. You may only use the Moov Platform for legitimate Payment Transactions with third parties. You know these third parties better than we do, and you are responsible for your relationship with them. Moov is not responsible for the business or purpose you publicize or sell (including the products or services you publicize or sell), your agreements or relationships with Payment Recipients or Payors, or any third parties. You affirm that you are solely responsible for the nature and quality of the business or purpose you provide (including any products or services you provide), and for delivery, support, refunds, returns, and for any other ancillary offerings or services you provide to these third parties. Moov provides the Moov Platform to you but we have no way of knowing if any particular purchase, sale, Payment Transaction, order, payment, disbursement, or other transaction is accurate or complete, or typical for your business. You are responsible for knowing whether a Payment Transaction is erroneous (such as a Payor purchasing one hundred items when they meant to order just one) or suspicious (such as unusual or large purchases by Payors, or a request for payment to a Payment Recipient at an abnormal location or in an unusual amount). If you are unsure if a Payment Transaction is erroneous or suspicious, you agree to research the Payment Transaction and, if necessary, contact the third party before completing the Payment Transaction. You are solely responsible for any losses you incur due to erroneous or fraudulent Payment Transactions in connection with your use of the Moov Platform.
13. Prohibitions You are prohibited from: (a) using the Moov Platform for any fraudulent, unlawful, deceptive, fraudulent, or abusive purposes or providing false or inaccurate information to Moov or our Financial Services Provider, including identity information; (b) using the Moov Platform in any manner intended to harm a third-party, another Moov user, or Moov; (c) circumventing Moov’s intended limitations for any feature of the Moov Platform as communicated to you by Moov; (d) using the Moov Platform in a manner inconsistent with any developer documentation, integration guidance, or other technical, policy, or other requirements communicated to you by Moov or posted on Moov’s website, each as may be updated from time to time ("Integration Requirements"); (e) using the Moov Platform in violation of any guidance regarding restricted activities communicated to you by Moov; (f) using the Moov Platform to conduct transactions for personal, family, or household purposes; (g) facilitating transactions for a third party that is not your business; (h) replicating and/or reselling the Moov Platform by offering and/or enabling any third party to access the Moov Platform through any integration or API; or (i) attempting any of the foregoing. All underwriting of your business will be done on a case-by-case basis by Moov and our Financial Services Provider. Without limitation, the following business lines are not permitted to use the Moov Platform absent specific written pre-clearance and approval by Moov:
- Online gambling or daily fantasy sports;
- Investment advisory services, securities brokers, or credit services;
- The sale of cannabis, tetrahydrocannabinol (THC) containing products, or marijuana containing products, including paraphernalia for the use of such products;
- The sale of Cannabidiol (CBD) containing products, including hemp and hemp derivatives;
- Adult entertainment, pornography, escort, or online dating services;
- The sale of guns, weapons, or ammunition;
- Cryptocurrency sales, money transmission, currency exchanges, check cashers, or any other activities subject to federal registration as a money services business (MSB) or subject to licensure by a state financial regulator;
- Sale of in-game currency, convertible virtual currency, or other tokens representing value;
- Multi-level marketing (MLM) programs;
- Fireworks sales;
- Pawn shops, title pawn business, or lenders charging Annual Percentage Rates (APRs) higher than 36%;
- Pharmaceutical, nutraceuticals, pseudo pharmaceuticals, supplements, or controlled-substance mimicking product sales;
- Sale of counterfeit, knock-off, or brand-infringement goods;
- Tobacco product sales;
- Debt collections; or
- Debt counseling or debt settlement programs.
14. Compliance You represent, warrant, and covenant that you will only use the Moov Platform for lawful and legitimate purposes and that you will at all times comply and conduct your business in compliance with: (a) all applicable federal, state, and local laws, rules, regulations, and guidance, including, without limitation, those governing payment services, consumer protections, privacy, and data security (collectively, "Applicable Laws"); (b) this Agreement; (c) any applicable Service Agreements; (d) the Integration Requirements, and (e) best practices to avoid Legal Risks.
15. Additional Representations, Warranties, and Covenants. You represent, warrant and covenant that: (a) if you are a natural person, you are at least eighteen (18) years of age; (b) you are eligible to register and use the Moov Platform and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when your registered is your name or business name under which you engage as a business; (d) any transaction submitted by you will represent a bona fide transaction by you (and in the case of a sales transaction, any transaction submitted by you will represent a bona fide sales transaction by you); (e) any transactions submitted by you will accurately describe the business offering delivered (i.e., in the case of a sales transactions submitted by you, you represent, warrant, and covenant that the sales transactions accurately described the goods and/or services sold and delivered to a purchaser); (f) you will fulfill all of your obligations to each Payor or Payment Recipient for which your transaction is submitted and will resolve any Payor or Payment Recipient dispute or complaint directly with the Payor or Payment Recipient; (g) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no sales transaction submitted through the Services will represent a sale to any principal, partner, proprietor, or owner of your entity; (i) you will not use the Moov Platform, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Moov Platform; and (j) you will comply with this Agreement and any other applicable Moov terms or policies that you have accepted.
16. Authorizations. For all Payment Transactions involving a Payor, you will maintain the direct relationship with the Payor and are responsible for: (i) acquiring appropriate consent to submit Payment Transactions to debit their accounts in accordance with Applicable Laws, the Integration Requirements, and to the extent that Moov provides any standard language, standard language provided by Moov; (ii) providing confirmation or receipts to Payors for each Payment Transaction; (iii) verifying Payors’ identities through your own systems and those required by Moov and our Financial Services Provider; and (iv) determining a Payor’s eligibility and authority to complete Payment Transactions. However, even authorized Payment Transactions may be subject to a dispute, chargeback, or return. Neither Moov, nor our Financial Services Provider are responsible for or liable to you for authorized and completed Payment Transactions that are later the subject of a dispute, chargeback, refund, return, or reversal, are submitted without authorization or in error, or violate any Applicable Laws. Please keep in mind that you are liable for all losses you incur when lost or stolen payment account credentials or accounts are used to provide payments to you or provide payments from your account. Moov does not and will not insure you against losses caused by fraud under any circumstances. For example, if someone pretends to be a legitimate buyer but is a fraudster or a hacker, you will be responsible for any resulting costs, including costs of disputes, chargebacks, refunds, returns, or reversals, even if you do not recover the fraudulently provided offering (including the fraudulently purchased product) or obtain compensation from the fraudster or hacker.
17. Payor Disclosures. It is very important to us that your Payors understand the purpose, amount, and conditions of Payment Transactions you submit to us. With that in mind, when using the Moov Platform you agree to: (i) accurately communicate, and not misrepresent, the nature of the Payment Transaction, and the amount of the charges that will be processed against the Payor’s account in the prior to submitting it to the Moov Platform; (ii) provide a receipt that accurately describes each Payment Transaction to Payors; (iii) provide Payors a meaningful way to contact you in the event that the offering (including a product or service) is not provided as described; (iv) not use the Moov Platform to make offerings (including the sale of products or services) in a manner that is unfair or deceptive, exposes Payors to unreasonable risks, or does not disclose material terms of an offering (including a purchase) in advance; and (v) inform Payors that Moov and its affiliates process Payment Transactions for you. You also agree to maintain and make available to your Payors a fair and neutral return, refund, cancellation, or adjustment policy, and clearly explain the process by which Payors can receive a refund. The Moov Platform may include functionality that enables you to receive recurring or subscription payments from your Payors, and to issue invoices to your Payors. If you use the Moov Platform to submit recurring or subscription charges, you agree to comply with Applicable Laws and payment network rules, including clearly informing Payors in advance of submitting the initial Payment Transaction that they will be charged on an ongoing basis and explaining the method for unsubscribing or cancelling their recurring billing or subscription. If you use the Moov Platform to issue invoices to your Payors, you understand and agree that it is your responsibility to ensure that the form and content of the invoices comply with Applicable Laws, and are sufficient to achieve any legal or tax effect that you are trying to achieve. If you engage in Payment Transactions with Consumer Payors, you specifically agree to provide consumers disclosures required by Applicable Law. You also agree to not engage in unfair, deceptive, or abusive acts or practices ("UDAAP").
18. ACH Transactions. The ACH network is controlled and managed by the National Automated Clearinghouse Association ("NACHA") and its member organizations. Where submitting Transactions for processing over the ACH network, you are required to comply with the NACHA Operating Rules. NACHA may amend the NACHA Operating Rules at any time, and we may amend this Agreement or make changes to the Moov Platform as necessary to comply with the NACHA Operating Rules. You understand and accept that you will comply with the obligations of an Originator (as defined in the NACHA Operating Rules), even if Moov or its Financial Services Provider may serve as an Originator within the ACH network with regards to your Transactions. You agree to obtain a Payor’s consent or Payment Recipient’s consent to debit or credit their financial institution account and initiate a Transaction, including a Transaction over the ACH network. Such consent must be in a form and manner that complies with the NACHA Operating Rules and the guidelines and standards provided by Moov for ACH Transactions. As with other payment processing services, you may not, and may not attempt to send or receive funds to or from a person, entity, or state where such Transactions are prohibited by Applicable Laws. You also agree to maintain the security and integrity of all information you collect as part of an ACH Transaction. Disputes, returns, unauthorized Transactions, or returned ACH Transactions using the ACH network may result in you becoming unable to accept ACH payments. Moov and our Financial Services Provider may, at any time, discontinue your ability to process ACH Transactions via the Moov Platform.
19. Transaction Reversal and Your Liability. You are solely responsible for your Payment Transactions initiated using the Moov Platform, including, without limitation, any fraudulent activity. Moov has no obligation to ensure that the funds required to complete a Funds Disbursement will be available. Any payment sent or received by you may: (a) be reversed in accordance with Moov or its Financial Services Providers’ risk management policies, (b) be reversed in accordance with Applicable Laws, including without limitation, by ACH return as defined under the NACHA Rules, (c) fail due to your error or a Payment Recipient’s or Payor’s error, (d) fail due to the provision of inaccurate information by you, a Payment Recipient, or a Payor; or (e) be cancelled or rejected by the counterparty or the counterparty’s financial institution (each, a "Reversal"). Except for any Reversal made in error by Moov, you are liable to Moov and its Financial Services Provider for any and all losses caused by Reversals and any other Payment Transaction activity, whether or not authorized by you or the Payor/Payment Recipient, including unauthorized or erroneous activity initiated by you, your Payment Recipients, or your Payors, whether through misconduct, negligence, error, or otherwise. You authorize Moov and its Financial Services Providers to recover any amounts due to Moov and/or its Financial Services Provider by debiting the available balance in your Moov Account. If the available balance in your Moov Account is insufficient, you authorize Moov and its Financial Services Provider to take any of the following actions to recover the remaining amounts from you: (x) debit your Payment Account(s); (y) request immediate payment from you, and, if payment is not received timely, engage in collection efforts; and (z) pursue any rights or remedies available under any of your agreements with Moov for failure to pay amounts owed to Moov, including, without limitation, termination of access to the Moov Platform for non-payment. Moov may require that you provide a personal guaranty for any amounts owed under this Agreement. In the event that your business has an unacceptable number or rate of Reversals, Moov reserves the right to immediately restrict or suspend your use of the Moov Platform, including by terminating this Agreement.
20. Transaction Instructions. You represent and warrant that (i) you have full authority to authorize all debits and payments requested through the Moov Platform; (ii) you have obtained written authorizations forms which are properly consented to, including written authorization and consent forms by Payors for debits to Payors and by Payment Recipients for credits to Payment Recipients; (iii) you have authorized applicable financial institution(s) to withdraw, debit or charge the necessary funds from the Linked Account(s) from which payments will be made via the Moov Platform; (iv) you will request that Moov make a payment for you only when a sufficient collected balance is or will be available in the respective Payment Account at the anticipated time of withdrawal to cover all requested Payment Transactions if you do not, you may be subject to a penalty; (v) your Payment Transaction Instructions are complete and accurate in all respects and in compliance with Applicable Laws, including any requirements of the Office of Foreign Assets Control ("OFAC"); and (vi) your Instructions, requests or other communications given to Moov through the Moov Platform shall be regarded as legal endorsements and shall be deemed to have the same legal authority as a written authorization signed by an authorized representative of your business. Moov shall have no liability resulting from following your instructions, including payment instructions; the refusal of any payee to accept payment through the Moov Platform (in which case you agree to accept the return of such payment funds); your failure to provide timely or accurate information to Moov (including payment instructions); or your breach of your representations and warranties.
21. Transaction Limits. Moov is not a bank and we do not accept deposits, provide loans or extend credit. If you accept payment for products or services not immediately deliverable to the Payor (a "Preorder"), we and our Financial Services Provider may, in our sole discretion, initiate Reversals or hold the funds received in a reserve or suspense account for all or a portion of the Payment Transactions processed by us for a Preorder. You understand and agree that Moov may, in its sole discretion, impose limits on the transactions that you may submit, including but not limited to, limits on the maximum dollar value of one or more transactions and/or limits on the volume of your transactions over a period of time. Any such limits will be communicated to you in writing by Moov. Nothing in this provision will be deemed to limit Moov’s right to decline any transaction that you submit in accordance with Moov’s other rights under this Agreement. For Funds Disbursement services, you acknowledge that we operate on a “good funds” model and will require that your funding Payment Transactions settle prior to the transmission of funds to your Payment Recipients. We will disclose any hold periods, however, they can be for as long as three business days (not including the date of the Payment Transaction). You acknowledge that the Moov Platform is for the purpose of facilitating business payments in the United States and that Moov does not provide multi-currency functionality or the ability to send funds in a currency other than the U.S. dollar. You agree to defend, indemnify and hold Moov harmless from and against all liability, costs, expenses, losses, fines or damages incurred by Moov arising from payments you authorize outside of the United States or to consumers through your use of the Moov Platform.
22. Moov Account Settlement. All funds resulting from Payment Transactions to you that increase your Moov Balance are held in pooled clearing accounts with our Financial Services Provider. We will settle funds to and from the these accounts in the manner described in this Agreement; however, you have no rights to these pooled accounts or to any funds held in the pooled accounts, you are not entitled to draw funds from the pooled accounts, and you will not receive interest from funds maintained in the pooled accounts. The funds held in the pooled accounts are reflected in your Moov Balance and represent funds in transit on account of your Payment Transactions. In certain circumstances, we or our Financial Services Provider may require you to place or keep funds in reserve or to impose conditions on the release of funds from your Moov Balance to a Payment Recipient or your Linked Account (each a "Reserve"). We or our Financial Services Provider may impose a Reserve on you for any reason if we determine that the risk of loss to Moov, our Financial Services Provider, Payment Recipients, Payors, third parties, or others associated with your Moov Account or your Payment Transactions is higher than normal. For example, we may hold a Reserve if: (i) your activities increase the risk of loss to us or to your customers, (ii) we suspect your activities may increase our Legal Risks, (iii) you have violated or are likely to violate this Agreement, or (iv) your Moov Account reflects an elevated or abnormally high number of disputes, reversals, chargebacks, returns, or other reclamations. If we or our Financial Services Provider impose a Reserve, we will establish the terms of the Reserve and provide you notice of the amount, timing, and conditions upon which the funds in the Reserve will be released to you. In many cases, the Reserve amount will be the entire amount of Payment Transactions processed using the Moov Platform. We may change or condition the terms of the Reserve based on our or our Financial Services Provider’s continuous assessment and understanding of the risks associated with your Moov Account, if required to do so by Applicable Laws, or for any other reason. We may fund the Reserve with funds processed through your use of your Moov Platform, by debiting a Payment Account or another bank account associated with your Moov Account, or by requesting funds directly from you. To the extent possible, we prefer to identify the necessity for a Reserve in advance of establishing one. If you are concerned that we will impose a Reserve on you due to the nature of your business activities, please contact us before using the Moov Platform or submitting a particular Payment Transaction.
23. Termination. This Platform Agreement is effective upon the date you first access or use the Moov Platform and continues until terminated by you or Moov. Either Moov or you may immediately terminate this Agreement for any reason by providing the other party written notice. Moov may, in Moov’s sole discretion, elect to terminate or suspend your use of specific Service(s) or the entire Moov Platform. Upon termination, you will: (a) immediately stop using the Moov Platform to accept or process any new transactions or instructions to Moov and/or its Financial Services Provider, and (b) cooperate with Moov to complete all pending transactions. Without limiting the foregoing, you expressly acknowledge and agree that you will have a continuing obligation after termination of this Agreement to pay any fees, fines, or other amounts related to your use of the Moov Platform or to the Payment Transactions as set out in this Agreement, and to appropriately disburse any funds held in a Moov Balance or otherwise associated with your Moov Account. If an investigation is pending at the time of termination of this Agreement or any portion thereof, funds may be held by Moov or its Financial Services Providers until the investigation is complete. You will also remain responsible for any fees or costs accrued and other amounts owed by you to us as provided in this Agreement.
24. Dispute Resolution. You are responsible for resolving all end user disputes related to your Payment Transactions ("Transaction Disputes"), including any Transaction Dispute communicated by a Payment Recipient or Payor to Moov. Moov has no obligation nor any liability associated with your Transaction Dispute resolution policies and procedures. You agree to provide Moov with any requested information regarding the status and/or resolution of a Transaction Dispute. Moov has the right but no obligation to provide support to a Payment Recipient or Payor that contacts Moov regarding a Transaction Dispute, and in such event, you must provide Moov with any information Moov reasonably requests for the purposes of assisting that third party. Your failure to respond to a Transaction Dispute in a way that preserves Moov brand integrity and does not expose Moov and our Financial Services Provider to Legal Risks may be grounds for suspension of your use of the Moov Platform.
25. Transaction Risk Management. You understand and agree that Moov and our Financial Services Provider may decline, restrict, or otherwise limit any Payment Transaction and/or the ability to access the Moov Platform in accordance with our risk management policies. It is your sole responsibility to verify the identity and legitimacy of your Payment Transactions, your Payment Recipients, your Payors, their activities, and their Payment Transactions using commercially reasonable methods. Moov and our Financial Services Provider reserve the right to restrict, suspend or terminate your access to the Moov Platform at any time if: (a) Moov or our Financial Services Provider determine that your activities violate this Agreement (including any applicable Service Agreement), any other applicable Moov agreement or policy, or any Applicable Laws; (b) we reasonably determine that the risk associated with your Payment Transactions poses unacceptable Legal Risk to Moov, our Financial Services Provider, and/or other users of our services; (c) you do not provide Moov with all Payment Recipient or Payor information as required or requested by Moov; or (d) for any other reason, in Moov’s or our Financial Services Provider’s reasonable discretion. If Moov suspends or restricts access to Payment Transactions, Moov will use reasonable efforts to provide timely notice to you. Such notice may occur after the suspension or restriction has occurred. Moov may also, in its reasonable discretion, contact any Payment Recipient or Payor for Moov’s fraud investigation and/or risk management purposes. If Moov contacts a third party for such purposes, Moov will notify you to the extent permissible under Applicable Laws.
26. Other Required Disclosures. If requested by Moov, you agree to promptly notify your Payor or Payment Recipients of any information requested by Moov or our Financial Services Provider, including minimum disclosure standards, authorization language, privacy disclosures, or other legal disclosures. You agree to provide any other information or disclosures as required by Applicable Laws.
28. Data Integrity. Each party is responsible for the security of all data in its possession or control and for its compliance with Applicable Laws in connection with its data handling and management practices. Each party is responsible for maintaining commercially reasonable Data security controls to protect and secure Data from unauthorized use, access, or disclosure. Additionally, you agree to provide evidence to demonstrate compliance with this Section upon our request. Moov represents and warrants that it will comply with the Payment Card Industry Data Security Standards (“PCI DSS”) when processing card transactions in connection with this Agreement.
29. Privacy & Use of Merchant Information. The Moov Platform may utilize SMS messages delivered through wireless service providers, such as AT&T, Sprint, Verizon, etc. You acknowledge that any SMS message may go through your and the message recipient’s wireless service provider’s systems. The privacy statement of each associated wireless service provider applies as the message passes through those systems. As a requirement to permit usage of SMS systems, some wireless service providers may require that we disclose to them information about users of the Moov Platform and the nature of business to be conducted. In this situation the information may be used to ensure legitimate use of the SMS systems. You acknowledge and agree that we may provide information about you to wireless service providers. You are responsible for securely managing access to your data and to the Moov Platform.
30. Restrictions on Use. You must comply with U.S., foreign, and international laws and regulations, including without limitation the U.S. Export Administration and Treasury Department’s Office of Foreign Assets Control ("OFAC") regulations, and other anti-boycott and import regulations. You agree not to allow access to or use of the Moov Platform to, in, by, or for sanctioned, embargoed, or prohibited countries, persons, or end uses under U.S. or other Applicable Laws, including without limitation, to any person or entity located, organized, or residing in Cuba, Crimea region of Ukraine, Iran, North Korea, Sudan, or Syria, or to any person or any entity otherwise controlled or owned, directly or indirectly, by any person currently included on the List of Specially Designated Nationals and Blocked Persons or the Foreign Sanctions Evaders List maintained by OFAC (collectively, "Prohibited Use"). You are responsible for screening for Prohibited Use and obtaining any required licenses or other authorizations and shall indemnify Moov of any violation by you of any applicable export controls and/or economic sanctions laws and regulations. Moov may terminate the Agreement and your use of the Moov Platform immediately if Moov determines, in its sole discretion, that you have breached, intend to breach, or appear to be imminently breaching any of the provisions in this Section. You agree that the performance of any action by Moov or our Financial Services Provider to debit or credit an account, transfer funds, or otherwise to conduct any Transfer Services are excused from the performance of such action to the extent that the action is inconsistent with Applicable Laws, including the obligations of Moov and our Financial Services Provider pursuant to OFAC or any program administered by the United States Department of the Treasury or the Financial Crimes Enforcement Network ("FinCEN").
31. Audit. Moov and our Financial Services Provider may audit, examine and otherwise monitor your compliance with this Agreement, and you agree to reasonably cooperate with any such audit. Within 30 days of notice from Moov, you will provide to Moov or Moov’s third party auditor (either, a "Moov Auditor") access to and assistance with: documents, records, reports, or other data, information, or materials compiled, maintained, or otherwise available to the extent related to your compliance with this Agreement and not prohibited from disclosure by Applicable Laws. If a Moov Auditor determines that you are not in compliance with this Agreement, you will take appropriate action to remedy the non-compliance and will provide Moov with reasonable evidence of the steps taken to achieve compliance with the time frame agreed upon by the parties.
32. Cooperation. In the event of any damages for which Moov, you, or our Financial Services Provider may be liable to each other or to a third party pursuant to the services provided under this Agreement, you agree that you will undertake reasonable efforts to cooperate with Moov and our Financial Services Provider, as permitted by Applicable Laws, in performing loss recovery efforts and in connection with any actions that the relevant party may be obligated to defend or elects to pursue against a third party.
33. Taxes. You are solely responsible for calculating, collecting, reporting, and paying any applicable taxes, duties, levies, or tariffs imposed with respect to any Payment Transactions, payments made to your business, the sale of any goods or services by your business, or any other transaction related to this Agreement or to the Services. Moov is not responsible for determining whether or not any taxes, duties, levies, or tariffs apply, and Moov is not responsible for calculating, collecting, reporting, or remitting any taxes, duties, levies, or tariffs to any taxing authority from any transaction related to this Agreement or to the Services. You acknowledge that Moov may have informational reporting requirements to the Internal Revenue Service in connection with this Agreement and the Services, including without limitation your name, address, tax identification number (TIN), Social Security Number (SSN), or Employer Identification Number (EIN), the total dollar amount of the payments you receive in a calendar year, the total dollar amount of the payments received for each month in a calendar year, or other payments made related to your business (including payments made for goods or services). You agree to provide us with any information necessary to complete such reporting, including end user information for the purposes of filing Form 1099-K or any other form of other document required or requested by the Internal Revenue Service. In the event Moov incurs a sales tax liability as a result of the transactions related to your business or the sales of your goods or services and/or Moov receives an assessment from a taxing authority directly attributable to transactions related to your business or the sales of your goods or services, you will indemnify Moov for all taxes, interest, and penalties that may be assessed.
34. Confidential Information Definition. "Confidential Information" means all information and material that is confidential or proprietary to a party, whether provided in writing, electronically, orally, or on magnetic disk or tape or by any other means or medium, and whether or not marked as confidential, and includes, but is not limited to: (a) trade secrets, software, object code, source code, file specifications, installation and operating instructions, end-user manuals, end-user agreements, training materials, guides, listings, functional and technical specifications relating to the Moov Platform, systems, procedures, manuals, confidential reports, business plans, and customer lists, (b) this Agreement, (c) all information and material that is clearly marked as “confidential” or “proprietary” at the time of such disclosure, and (d) all information and material that should, by its nature and the circumstances of disclosure, reasonably be understood to be confidential by the receiving party. Notwithstanding the foregoing, Confidential Information does not include information that is in receiving party’s possession at the time of disclosure, as substantiated in writing, or enters the public domain without breach of this Agreement.
35. Confidentiality Obligation; Security. All Confidential Information shared between the parties during the term of this Agreement is received in strict confidence and shall be used by the receiving party only for the purposes of performing the receiving obligations or exercising its rights as set forth in this Agreement. Each party agrees not to disclose the disclosing party’s Confidential Information, except as permitted by this Agreement or as necessary to perform its obligations or exercise its rights under this Agreement.
Each party agrees to take reasonable precautions to prevent the unauthorized disclosure of the Confidential Information to any third party, except as necessary by reason of statute, regulation, order, subpoena or document discovery request, or in response to an inquiry or request of any governmental or regulatory agency or self-regulatory organization, provided that, to the extent not legally prohibited, the party making such disclosure to will notify the other party of such request as soon as practicable in order to afford the other party an opportunity to seek a protective order. The receiving party agrees to treat the disclosing party’s Confidential Information with the same degree of care that it applies to its own Confidential Information, but with at least commercially reasonable care. The receiving party will ensure that any person given access to Confidential Information is only provided such access on a need to know basis and is legally bound to protect the Confidential Information on terms no less strict than those in this Agreement. Receiving party’s obligation to maintain the confidentiality of Confidential Information will survive the termination or expiration of this Agreement for any reason. The receiving party is under no obligation under this Section with respect to Confidential Information that (i) was in the public domain prior to the receipt of the information or subsequently becomes part of the public domain in a way other than disclosure by the receiving party, its officers, directors, employees, agents, or contractors, (ii) was in the rightful possession, as substantiated in writing, of the receiving party without restriction prior to its receipt from the disclosing party, or (iii) was independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party. The receiving party has the burden of proving any disclosure was subject to one of the exceptions.
Upon our request, and upon termination or expiration of this Agreement, you shall return or, only if requested by us, destroy all Confidential Information in your possession or control. You acknowledge that a breach of this Section may cause us irreparable injury and that we may have no adequate remedy at law. Accordingly, we may seek provisional or injunctive relief in addition to any other rights or remedies.
36. Intellectual Property Ownership, License Grant, and Restrictions. Moov is the exclusive owner of and retains all right, title and interest to the Moov Platform the Moov interfaces; Moov trademarks and all modifications, enhancements, upgrades and updates thereto; and all intellectual property rights therein and thereto (collectively, the "Moov IP"). There are no implied licenses under this Agreement. Except as set out in this Agreement, you will not acquire any rights in the foregoing and you will not copy, transmit, transfer, modify or create derivative works, reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Moov IP, nor permit or authorize any third party to do any of the foregoing. Subject to the terms and conditions of this Agreement, we grant you a personal, limited, non-exclusive, non-transferable license, during such time that you satisfy the conditions set forth in this Agreement, to access and use the Services solely for the purpose described herein. You are not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following: (i) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way any components of the Services; (ii) permit any third party to benefit from the use or functionality of the Services via a rental, lease, timesharing, service bureau, or other arrangement; (iii) transfer any of the rights granted to you under this Agreement; (iv) work around any technical limitations in the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer any component of Services; (v) perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or the use of the Services by our other licensees or customers; or (vi) export the Services, directly or indirectly.
37. Feedback. You may voluntarily provide suggestions or ideas for improvements or modifications to the Moov Platform ("Feedback"). Nothing in this Agreement will prohibit Moov from using, profiting from, disclosing, publishing, or otherwise exploiting any Feedback, nor create any obligation to compensate you for the provision of Feedback.
38. Third-Party Claim Indemnification. You agree to defend and indemnify Moov, its officers, directors, agents, employees, and suppliers from any third party claims, actions, proceedings, and suits and related liabilities, damages, settlements, penalties, fines, costs, or expenses (including reasonable attorneys’ fees and other litigation expenses) arising from: (a) your violation or breach of this Agreement; (b) your negligence or misconduct; or (c) your violation of Applicable Laws.
39. Disclaimer of Warranties.
THE MOOV PLATFORM AND THE SERVICES ARE PROVIDED “AS IS” AND "AS AVAILABLE", AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WITHOUT ANY REPRESENTATION OF WARRANTY OR GUARANTEE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. MOOV MAKES NO REPRESENTATION OR WARRANTY THAT THE MOOV PLATFORM WILL MEET YOUR REQUIREMENTS OR BE CONTINUOUS, UNINTERRUPTED, OR ERROR-FREE. MOOV DOES NOT REPRESENT OR WARRANT THAT THE MOOV PLATFORM ARE COMPATIBLE WITH YOUR EQUIPMENT OR THAT THE SITE AND PLATFORM ARE FREE OF VIRUSES, WORMS, BOTS OR ANY OTHER HARMFUL, INVASIVE OR CORRUPTED FILES. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, THE UNIFORM COMMERCIAL CODE AND THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT SHALL NOT APPLY TO THIS AGREEMENT.
40. Limitation of Liability; Your Liability.
IN NO EVENT WILL MOOV OR OUR FINANCIAL SERVICES PROVIDER BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY, DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES INCURRED IN CONNECTION WITH: (a) THIS AGREEMENT, OR (b) YOUR USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE MOOV PLATFORM UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER MOOV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MOOV’S LIABILITY UNDER THIS AGREEMENT EXCEED ONE HUNDRED ($100.00) DOLLARS. THIS LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THE AGREEMENT SHALL SURVIVE EXPIRATION OR TERMINATION OF THE AGREEMENT, WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND FORM AN ESSENTIAL PART OF THE CONSIDERATION FOR THE PARTIES’ PERFORMANCE.
YOU ARE RESPONSIBLE FOR ALL REVERSALS, CHARGEBACKS, CLAIMS, FEES, FINES, PENALTIES, AND OTHER LIABILITY INCURRED BY MOOV, OUR FINANCIAL SERVICES PROVIDER, OTHER MOOV USERS, OR THIRD PARTIES ARISING FROM YOUR BREACH OF THIS AGREEMENT, YOUR VIOLATION OF APPLICABLE LAWS, RULES AND REGULATIONS APPLYING TO THE PAYMENT METHODS (INCLUDING NACHA RULES OR CARD NETWORK RULES), OR USE OF THE MOOV PLATFORM OR ANY OF THE SERVICES BY SOMEONE USING YOUR CREDENTIALS WHICH ARE USED TO ACCESS YOUR MOOV ACCOUNT (INCLUDING ACCOUNT AND IDENTITY CREDENTIALS). YOU AGREE TO BE LIABLE TO MOOV, OUR FINANCIAL SERVICES PROVIDER, OTHER MOOV USERS, OR THIRD PARTIES FOR ANY AND ALL SUCH LIABILITY.
41. Assignment. You may not transfer, assign, or delegate this Agreement or any of your rights, obligations, or duties under this Agreement without the prior written consent of Moov. This Agreement binds you and your respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or assigns. Moov may transfer or assign this Agreement or any of its rights, obligations, or duties under this Agreement at any time.
42. Independent Contractor Relationship. You and Moov are independent entities, and this Agreement does not create any partnership, agency, or joint venture relationship between you and Moov. You may not and may not attempt to represent, warrant, or obligate Moov to any commitment with any third party.
43. Force Majeure. Moov is not responsible for any failure to perform its obligations under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, including, but not limited to, weather, fire, flood, earthquake, war, pandemic, public health crisis, embargo, strike, riot, civil unrest, acts of terrorism, failure or interruption of public or private infrastructure, or the intervention of any government entity. In the event of such a failure, Moov’s obligations will be suspended until Moov is able to perform.
44. Notices. Except in the case where another location is expressly stated in this Agreement, all notices to Moov must be sent in writing by email to [email protected].
45. Third-Party Services. In connection with your use of the Moov Platform, you may be made aware of services, products, offers, and promotions provided by third parties, and not by us ("Third Party Services"). If you decide to use Third Party Services, you are responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing any Third Party Services. You agree that the third party, and not us, is responsible for the performance of the Third Party Services.
46. Governing Law; Waiver of Jury Trial; Covenant Not to Participate in a Class Action. This Agreement will be construed in accordance with, and governed by, the laws of the State of Colorado, without regard to its conflict of laws principles.
SUBJECT TO THE ARBITRATION PROVISIONS PROVIDED IN THIS AGREEMENT, IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT:
(I) YOU AND MOOV HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE IN THE STATE COURTS IN DENVER, COLORADO OR FEDERAL COURT FOR THE STATE OF COLORADO; AND
(II) YOU HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS AGREEMENT OR ANY ACTION, LAWSUIT, CLAIM, COUNTERCLAIM, OR OTHER ACTION RELATING TO, OR ARISING UNDER THIS AGREEMENT, AND/OR ANY TRANSACTION GOVERNED BY THIS AGREEMENT. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY BY YOU, AND IS INTENDED TO ENCOMPASS EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE BE AVAILABLE. MOOV IS HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY YOU. YOU ALSO COVENANT NOT TO PARTICIPATE IN ANY CLASS ACTION AGAINST MOOV BASED UPON ANY CLAIMS RELATING TO OR ARISING FROM THIS AGREEMENT.
47. Arbitration. You and Moov agree that any and all disputes, claims or controversies arising out of or related to this Platform Agreement, the use of the Moov Platform, or the provision of any services under this Agreement, including any claims under any statute or regulation (collectively, "Disputes"), shall be submitted for binding arbitration. Unless the parties agree otherwise, any arbitration shall take place in Denver, Colorado and shall be administered by, and pursuant to the commercial arbitration rules of, the American Arbitration Association, including any expedited procedures. There shall be no right or authority for any Disputes to be arbitrated on a class action basis or in a purported representative capacity on behalf of the general public or other persons or entities similarly situated. The arbitrator’s authority to resolve Disputes and to make awards is limited to Disputes between You and Moov alone. The authority to resolve Disputes is subject to the limitations of liability set forth in your agreements with Moov. Disputes brought by either you or Moov against the other party may not be joined or consolidated in arbitration with Disputes brought by or against any third party, unless agreed to in writing by you and Moov. No arbitration award or decision on any Disputes shall be given preclusive effect as to issues or claims in any dispute with anyone who is not a party to the arbitration. The provisions of this Section labeled “Arbitration” and all arbitration awards duly made in connection therewith may be enforced in a court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses (including attorneys’ fees) incurred in obtaining the enforcement of this provision, to be paid by the party against whom enforcement is ordered. All arbitration awards duly made hereunder shall not be subject to review or appeal except as required by Applicable Laws. Any provision of any agreement between you and Moov to the contrary notwithstanding: (a) you or Moov may seek interim relief from a court located in Denver, Colorado to protect such party’s rights or property while arbitration is pending, and (b) Moov may bypass the aforementioned arbitration process in cases of fraud or other crimes against Moov, interference with Moov’s technical operations, suspected criminal activity, or violations of Moov’s rights or property, including any Moov IP.
48. No Third-Party Beneficiaries. This Agreement is intended for the exclusive benefit of you and Moov and not intended to benefit any third party.
49. Entire Agreement; Conflicts; No Waiver; Construction. This Agreement and any documents incorporated by reference, constitute the entire agreement between the parties. This Agreement supersedes all prior or contemporaneous negotiations, stipulations, or agreements between you and Moov with respect to the Platform Agreement and the matters covered under this Agreement. Except for a formal written modification duly authorized by Moov in accordance with the terms described herein, the suppliers, agents, employees, distributors, and dealers of Moov are not authorized to make modifications to this Agreement or to make any additional representations, commitments, or warranties binding on Moov. Any waiver of the terms herein by Moov must be in a writing signed by an authorized officer of Moov and expressly referencing the applicable provisions of this Agreement. Any failure by Moov to enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. To the extent that the terms of this Agreement conflict with any other Moov agreement or policy governing your use of the Moov Platform, this Agreement will control. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by law, and the remaining provisions will remain in full force and effect. No provision of this Agreement will be construed against a party by reason of that party drafting such provision. Headings are included for convenience only, and shall not be considered in interpreting this Agreement.
50. Survival. All provisions of this Agreement that give rise to a party’s ongoing obligation or that, by their nature extend beyond the term will survive termination of this Agreement by a period of six (6) years. In addition to, and not in limitation of the foregoing, the following Sections shall survive termination of this Agreement or any other agreements between you and Moov:
|1||Authority to Accept this Agreement|
|2||Updates and Amendments to this Agreement|
|3||Disclosures and Notices|
|9||Third Party Service Provider|
|12||Relationship to Third Parties|
|19||Transaction Reversal and Your Liability|
|27||Use of Data|
|30||Restrictions on Use|
|34||Confidential Information Definition|
|35||Confidential Obligation; Security|
|36||Intellectual Property Ownership, License Grant, and Restrictions|
|38||Third-Party Claim Indemnification|
|39||Disclaimer of Warranties|
|40||Limitation of Liability; Your Liability|
|46||Governing Law; Waiver of Jury Trial; Covenant Not to Participate in a Class Action|
|48||No Third-Party Beneficiaries|
|49||Entire Agreement; Conflicts; No Waiver; Construction.|
Part II - Service Agreements
Moov Transfer Terms of Service
The Moov Transfer Terms of Service apply to your use of a Moov Account, the Moov Transfer service, and any related Moov products and services (together the "Transfer Services"). Capitalized terms in these Transfer Terms of Service not otherwise defined shall have the definitions set forth in the Moov General Terms and Conditions. The Transfer Services allow you to transfer funds ("Funds") via Transactions. Funds transfers for the Transfer Services are performed by Moov’s Financial Services Provider based on instructions issued through the Moov software platform. Moov’s actions in connection with funds transfers are done through our Financial Services Provider. Our current Financial Services Provider for the Transfer Services includes Veridian Credit Union, however, Moov retains the sole right to replace or modify the Financial Services Providers at Moov’s sole discretion. Funds will be held by the Financial Services Provider and will not be within the custody or control of Moov. Any provisions in these Transfer Terms of Service related to the Financial Services Provider will control over the General Terms and Conditions as to those topics.
1. Using the Transfer Services.
1.1. Authentication. You may be required to provide additional information or documentation to allow Moov to verify your identity and/or your Linked Account information. Moov may also verify your information against third party databases or other sources and you authorize Moov to make such inquiries.
1.2. USA PATRIOT Act Notice. Important information about procedures for opening a new account under the USA PATRIOT Act of 2001: To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for you: When you register for the Transfer Services, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see a form of identification with your photograph or other identifying documents. This information may be used by Moov and our Financial Services Provider to confirm your eligibility for the Funds Transfer Services.
1.3. Applicable Laws. You represent, warrant, and covenant to Moov and our Financial Services Provider that all actions you take with regards to the Moov Transfer Services, including the preparation, transmittal, and settlement of Transactions, Transfer Services instructions, and payment orders, shall comply with Applicable Laws and NACHA Rules. Moov and our Financial Services Provider will charge you with any fines and penalties imposed by OFAC, FinCEN, NACHA, or any other organization which are incurred as a result of non-compliance by you and you agree to fully reimburse and/or indemnify Moov and our Financial Services Provider for such charges or fines.
1.4. Authorization to debit your linked bank or credit union account. If you link an external financial institution account to your Moov account (a "Linked Account"), the external financial institution must be bank or credit union that is a state or federally chartered institution in the United States. Not all types of bank accounts are eligible for the Transfer Services. We reserve the right to decline the use of any account that we believe may present Legal Risks to us or our Financial Services Provider or present Legal Risks to Moov. When you initiate a Transaction against your Linked Account or initiation a Transaction that is funded by your Linked Account, you authorize Moov and our Financial Services Provider to initiate a wire transfer or electronic transfer from your Linked Account in the amount you specify. You are solely responsible for complying with any terms set by your bank or credit union with respect to your Linked Account, including any fee terms, such as non-sufficient fund or overdraft fee terms. If you are entitled to a Reversal (as defined in Section 2), refund, or other adjustment associated with a payment you made using the Transfer Services, you also authorize Moov and our Financial Services Provider to credit your Linked Account to complete that transaction.
1.5. Automated Clearing House clearing times. If you link a Linked Account to your Moov Account, you may add funds to your Moov Balance, initiate Transactions against your Moov Balance, or send a Transaction using your Linked Account. If you do so, you acknowledge that normal Automated Clearing House clearing times will apply. Moov will periodically provide you with updated clearing times by means of a Notice provided to you in accordance with this Agreement. For Transactions where you will be sending funds to a Payment Recipient, Moov operates on a “goods fund” model. This means that funds must have settled to your Moov Balance prior to Moov initiating outbound Transactions to your Payment Recipients. Because of the time period for settlement of funds Transactions from your Linked Account, this means that the funds should generally be available to you in your Moov Balance and available for transmission to a Payment Recipient within four (4) business days. (As used in these Transfer Terms of Service, a "business day" is a day in which our Financial Services Provider is open and transacting business). We have no control over the actions of other financial institutions or third parties that could delay the Transfer Services. We are not liable for any damages resulting from any additional time needed to effectuate the Transfer Services, including in the event that time is needed to verify identities or required to meet regulatory requirements or satisfy Applicable Laws. There is no warranty or guarantee that the requested Transaction will occur within any given time.
1.6. Pre-Funding. Moov and our Financial Services Provider reserves the right to require you to pre-fund any requested Transactions to third parties prior to our Financial Services Provider sending funds. In general, you must show funds in your Moov Balance before you can instruct our Financial Services Provider to transfer these funds to a third-party. Any restrictions on sending funds from your Moov Balance will be communicated to you through the Moov Platform.
1.7. Provisional Receipt. Moov and our Financial Services Provider may make funds that you receive from third parties, including Payors provisional and delay the posting of these funds to your Moov Balance until Moov can confirm that a final, non-returnable payment has been received from the Payor. If funds are credited to your Moov Balance and such funds are later recalled or must be returned to the Payor, Moov and our Financial Services Provider is entitled to a refund of the amounts credited.
1.8. Access to Moov Balance. Once you provide instructions to Moov for our Financial Services Provider to send funds to a third-party, this amount will be deducted from your Moov Balance. This amount will reduce the funds you have for other Transactions. Even if Moov and our Financial Services Provider are unable to immediately complete the Transaction, you may not have access to those funds until the Transaction is officially canceled by our Financial Services Provider and the funds returned to your Moov Balance.
1.9. Sending Limit. When you enroll in the Moov Transfer Services and obtain your Moov Account, Moov and its Financial Services Provider will provide you with general Transaction limits. These may be changed at any time. In addition, we may set Transaction limits dynamically and these limits will be identified to you when you attempt to input a Transaction instruction into the Moov Platform. If your Transaction Instruction would exceed your limit, you will receive a message indicating that you cannot process the Transaction Instruction. We reserve the right to decrease your Transaction restrictions at any time, for any reason. In addition, Moov or our Financial Services Provider may impose Transaction volume limits (limits that would restrict the number of Transactions, regardless of the dollar value of those transactions), total Transaction limits (limits on the total dollar figure of Transactions you may send each day), or pending Transaction limits (limits that would restrict the value of Transactions that have been input by you but that have not settled).
1.10. Modifying Transaction Instructions. You generally have no right to cancel or amend any Transaction instructions after you have submitted those instructions to Moov and our Financial Services Provider. Should our Financial Services Provider accept a cancellation or amendment of Transaction instructions, you agree that neither Moov nor our Financial Services Provider shall have any liability if the cancellation or amendment is not affected. If Moov or our Financial Services Provider attempts to cancel or amend a Transaction, you agree to indemnify, defend all claims and hold both Moov and our Financial Services Provider harmless from any loss, damages, or expenses, including but not limited to attorney’s fees, incurred as the result of our acceptance of the cancellation or amendment.
1.11. Errors in Instructions You Provide. Neither Moov, nor our Financial Services Provider, has an obligation to discover and shall not be liable you for errors you make using the Transfer Services, including but not limited to errors made in identifying the source or recipient of Transactions or for errors in the amount of a Transaction instruction. Neither Moov, nor our Financial Services Provider, has any duty to discover and shall not be liable for duplicate Transaction instructions issued by you. In the event that you make an error or issue a duplicate set of Transaction instructions, you shall indemnify, defend all claims, and hold the Moov and our Financial Services Provider harmless from any loss, damages, or expenses, including but not limited to attorney’s fees, incurred by as result of the error or issuance of duplicate Transaction instructions.
1.12. Business purpose. You agree that you are only using the Transfer Services for business purposes and are not using the Transfer Services for personal, family, or household purposes. We reserve the right to decline your Transactions if we believe you are using the Transfer Services for personal, family, or household purposes.
1.13. Authorization to Receive Payments. You agree that Moov and our Financial Services Provider may process payments to you from Payors or other businesses or persons participating in the Moov platform. When we collect these payments on your behalf, we will credit the amounts to your Moov Balance. Once Moov and our Financial Services Provider have processed a payment to you, it will be treated as though the Payor has remitted that amount to you, even if you ultimately do not receive those funds. When Moov and our Financial Services Provider process these amounts to your Moov Balance, it will be treated, in all cases, as receipt by you of those funds from the other Payor (subject to any Reversals).
2. Transaction Reversal.
2.1. Reversals. Any payment that you receive may be reversed if: (a) the sender requests a reversal of the payment, (b) the sender’s institution (such as the sender’s bank or credit union) requests a reversal of the payment, or (c) Moov or its Financial Services Provider determines, in their sole discretion, that a Reversal is necessary due risk or security concerns (each a "Reversal"). You are liable to our Financial Services Provider for the full amount of any payment that you receive that is subject to a Reversal. You are liable to Moov for the Reversal Fee, if applied.
2.2. Authorization to recover amounts due. You authorize Moov to recover any Reversal amounts due to our Financial Services Provider by debiting your available Moov Balance. If you have an insufficient Moov Balance, you authorize Moov and our Financial Services Provider to take any of the following actions to recover the remaining amounts from you: debit any Linked Accounts; suspend access to your Moov Balance; suspend your Moov Account and require your immediate payment; engage in collection efforts; or take such other and further actions as are authorized at law or equity.
3. Restricted activities. You agree you will not: conduct any Transactions in currencies other than U.S. dollars or any Transactions with Payment Recipients, Linked Accounts, or Payors located outside the United States; provide white label ATM services; engage in transactions involving illegal goods or services, or that involve any business that are subject to pre-approval by Moov as set forth in the General Terms and Conditions; make tax payments, court ordered payments, or pay fines or other payments to government entities; attempt to receive or actually receive duplicate compensation for a disputed payment from the recipient (such as a seller), Moov, and/or your bank or credit union; or engage in activity that indicates, in the discretion of Moov or our Financial Services Provider, that there may be a high level of Legal Risk associated with you or your Transfer Services activity.
4. Actions we may take. If we determine, in our sole discretion, that you may have breached these Transfer Terms of Service, that you or your Transfer Services activity presents Legal Risk or security concerns, or if we are unable to verify your identity, the actions we may take include, but are not limited to, the following: suspending or closing your access to your Moov Account, the Moov Platform, and/or the Transfer Services; suspending your access to your funds held in the Holding Account for up to 90 days or a longer period when such longer suspension is deemed appropriate by our Financial Services Provider; taking action as set out in Section 2 (Transaction Reversal) to recover amounts that you owe; contacting and discussion with, or warning of your actions to, Moov users, third parties who have transacted with you, Payment Recipients, Payors, your bank or other financial institution, law enforcement, or other impacted third parties; refusing to provide any Moov products or services to you in the future; and taking legal action against you on the basis of a remedy set forth in this Agreement or available under Applicable Laws or equity to Moov or our Financial Services Provider.
5. Review of Transfers. You must regularly review your Moov Balance and Transaction history. Any errors or discrepancies relating to the Transfer Services must be immediately reported to Moov or if you are using the Moov Platform through a Third-Party Service Provider, directly to that Third-Party Service Provider. You understand and agree that if you are using the Moov Platform through a Third-Party Service Provider you must report any errors or discrepancies relating to the Transfer Services to your Third-Party Service Provider and not to Moov. If you fail to notify Moov or your Third Party Service Provider, as applicable, within fourteen (14) calendar days of Moov making this information available to you; you agree that none of Moov, any Third Party Service Provider, or our Financial Services Provider will be liable for any other losses resulting from your failure to give such notice. If you fail to notify Moov or your Third-Party Service Provider, as applicable, within sixty (60) calendar days after this information is made available to you, you may not assert any error or discrepancy.
6.1. By you. You may stop using the Transfer Services at any time and you may also close your Moov Account at any time, as long as you withdraw your Moov Balance, if any, and comply with those obligations in the General Terms and Conditions. Note, however, you are still responsible for any Transfer Services conducted prior to your termination.
6.2. By us. We may close your Moov Account or terminate your access to the Transfer Services without liability, for any reason, upon notice to you. Moov also reserves the right to modify or terminate the Transfer Services at any time, for any reason.
Moov ACH Transfer Authorization
The Moov ACH Transfer Authorization (“"ACH Authorization"”) supplements the Moov General Terms and Conditions and each of the other Service Agreements. Capitalized terms in this ACH Authorization not otherwise defined shall have the definitions set forth in the Moov General Terms and Conditions. This ACH Authorization applies to any amounts that become due to Moov or our Financial Services Provider.
By agreeing to this ACH Authorization, you authorize Moov and our Financial Services Provider to electronically debit and credit your designated Linked Account via and automated clearinghouse transaction ("ACH") and, if ever applicable, to correct erroneous debits and credits as follows:
- Range of Acceptable Debit Amounts: up to $100,000 per Business Day (as defined below)
- Frequency of Debits: multiple times per Business Day (however, debits and credits may not necessarily occur every Business Day)
- You also acknowledge that the amount and frequency of the foregoing debits and credits may vary and that you waive your right to receive prior notice of the amount and date of each debit and credit.
You acknowledge that the electronic authorization contained in this ACH Authorization represents your written authorization for ACH transactions as provided herein and will remain in full force and effect until you notify your Third-Party Service Provider, if applicable, that you wish to revoke authorization. If you do not have a Third-Party Service Provider, you must notify Moov that you wish to revoke this authorization by emailing [email protected]. You must notify your Third-Party Service Provider or Moov, as applicable, at least fourteen (14) Business Days before the scheduled debit date of any ACH transaction from your Linked Account in order to cancel this authorization. Your Third-Party Service Provider may require a longer notice period. If notice is not received at least fourteen (14) Business Days before the scheduled debit date, we or our Financial Services Provider may attempt, in our sole discretion, to cancel the debit transaction. However, neither we, nor our Financial Services Provider, assume any responsibility or liability for our failure to do so.
If you withdraw your electronic authorization contained in this ACH Authorization, we will suspend or close your Moov Account or suspend your access to the Services, and you will no longer be able to use your Moov Account or the Services. Please note that withdrawal of your electronic authorization contained in this ACH Authorization will not apply to transactions performed before the withdrawal of your authorization becomes effective. Your withdrawal of your consent will not impact your liability for any amounts owed to Moov or our Financial Services Provider.
In addition to any of your other representations and warranties in the Agreement, you represent that: (a) your browser is equipped with at least 128-bit security encryption; (b) you are capable of printing, storing, or otherwise saving a copy of this ACH Authorization for your records; and (c) the ACH transactions you hereby authorize comply with applicable law.
Sub-Merchant Processing Agreement
This Sub-Merchant Processing Agreement (this "Sub-Merchant Processing Agreement") governs your use of Moov’s payment processing services to accept Payment Acceptance Methods (as defined below) (the "Sub-Merchant Processing Services") and supplements the Moov General Terms and Conditions. Capitalized terms in this Sub-Merchant Processing Agreement not otherwise defined shall have the definitions set forth in the Moov General Terms and Conditions.
1. Sub-Merchant Processing Services. The Sub-Merchant Processing Services allow you ("Merchant") to accept payment transactions into a merchant Moov account established for Merchant. The Sub-Merchant Processing Services are licensed to Merchant, and Moov owns all copyright, trade secret, intellectual, patent, and other proprietary rights in the Sub-Merchant Processing Services. Moov is not a bank; Moov is a merchant services processor that processes payments Merchant receives from Merchant’s customers. To do this, Moov may enter into agreements with partners, including other processors, card organizations, banks, and/or other financial institutions. Merchant will be required to provide certain information to open an account through Moov, which must be approved by Moov, in Moov’s sole discretion, prior to using the Sub-Merchant Processing Services (the "Sub-Merchant Account"). Merchant must provide accurate and complete information to Moov when opening the Sub-Merchant Account. Moov may forward some or all of this information to its partners, including its processor(s), its bank(s), its financial institution(s), and/or the card organization(s). By entering into this Sub-Merchant Processing Agreement, Merchant authorizes Moov to share this information with its partners, including its processors as well as Merchant’s bank, other financial institution(s), or the card organization(s). If Merchant’s request to open a Sub-Merchant Account is approved, Moov may request additional information from Merchant at any time. If requested by Moov, Merchant shall provide additional information to Moov in a timely manner. Moov may also periodically obtain reports to determine whether Merchant continues to meet the requirements for a Sub-Merchant Account. In addition, Merchant may be required to enter into additional agreements as required by Moov to facilitate the services described herein and to satisfy requirements imposed by Moov’s financial services providers, including its processor(s), bank(s), financial institution(s), or the card organizations or associations, such as MasterCard, Visa, Discover Network, American Express or other similar associations, organizations or networks (collectively, the "Financial Services Organizations"). The Sub-Merchant Processing Services work with some credit cards, debit cards, prepaid cards, or gift cards (collectively, the "Payment Acceptance Methods"), including some of the Payment Acceptance Methods which are offered by or through the Financial Services Organizations. Moov may remove or add Payment Acceptance Methods that it accepts at any time and without prior notice. Financial Services Organizations, including Mastercard, Visa, Discover Network, or American Express as well as some of the Moov’s processors require that Merchant and Moov comply with all of their applicable guidelines, bylaws, rules and regulations (the "Rules"), which may be amended at any time. Without limiting any other rights available to Moov to amend this Sub-Merchant Processing Agreement from time to time, including any rights identified in the General Terms and Condition, Moov may also amend this agreement to comply with the Rules, as amended from to time.
2. Sub-Merchant Account. By establishing a Sub-Merchant Account, Merchant confirms that Merchant is either a legal resident of the United States, a United States citizen, or a business entity authorized to conduct business by the state within the United States in which it operates. The Sub-Merchant Processing Services may only be used within the United States of America. Merchant agrees that Moov is authorized to contact with or utilize third parties to provide the Sub-Merchant Processing Services. Moov may share information about the Merchant and the Sub-Merchant Account with third parties, including the Financial Services Organizations. This includes information related to transaction information associated with the Sub-Merchant Account. Upon approval of the Merchant Sub-Merchant Account, Merchant authorizes the Moov to hold, receive, and disburse funds on Merchant’s behalf. Merchant agrees that in using the Sub-Merchant Processing Services, Merchant will abide by the following:
- Merchant will send receipts to customers. Receipts will be delivered in a manner that complies with applicable laws and regulations and all requirements of the Rules applicable to Merchant;
- Merchant will comply with all applicable laws and regulations and all requirements of the Rules applicable to merchants;
- Merchant must maintain the security of account login information as well as other authentication and security procedures that Merchant receives as part of Merchant’s use of the Sub-Merchant Processing Services;
- Merchant will not accept payments in connection with any illegal activity, activity not compliant with the Rules, or any activity that is inconsistent with Merchant’s type of business;
- Merchant will use the Sub-Merchant Processing Services only for lawful merchant activities as approved by Moov and not in a manner that results in or may result in complaints, disputes, chargebacks, fees, fines or penalties;
- Merchant will not use the Sub-Merchant Processing Services to facilitate for personal, family or household purposes; and
- Merchant will not use the Sub-Merchant Processing Services to process cash advances or on behalf of another merchant.
3. Unauthorized Use. Merchant may only use the Sub-Merchant Processing Services in compliance with all laws, rules, and regulations applicable to the use of the Sub-Merchant Processing Services. Moov may choose not to authorize or settle any transaction submitted to Moov if Moov believes the transaction is in violation of this Sub-Merchant Processing Agreement or may cause harm to Merchant, the Moov, or the Financial Services Organizations. Merchant expressly authorizes Moov to share information about Merchant, the Sub-Merchant Account or Merchant transactions with law enforcement or other governmental or regulatory entity, including in the event that Moov believes the Sub-Merchant Processing Services have been used for an illegal, unauthorized or criminal purpose or in the event that law enforcement or other governmental or regulatory entity requests said information from Moov.
4. Settlement and Deposits. Merchant will establish and maintain with an Automated Clearing House ("ACH") receiving depository institution within the United States acceptable to Moov one or more commercial checking account(s) to facilitate payment for Payment Acceptance Methods transactions. Merchant agrees to pay and accommodate for, and will maintain sufficient funds in the account to pay and accommodate for, all transactions as well as the settlement and posting associated with the transactions, including, but not limited to, Fees, fines, penalties and Chargebacks associated with the transactions. Merchant irrevocably authorizes the debit of the account for Chargebacks, Fees and any other penalties, fees or payments due under this Sub-Merchant Processing Agreement. Once Merchant’s account is validated, Moov or the Financial Services Organization(s) will deposit to the Sub-Merchant Account the amounts actually received by Moov for completed transactions submitted through the Sub-Merchant Processing Services (less any applicable Fees, fines, penalties, Chargebacks and other payments due under this Sub-Merchant Processing Agreement) at the end of every business day of Moov. As of the date Merchant’s Sub-Merchant Processing Agreement, settlement and disbursements will use a for benefit of (FBO) type of account, however, Moov may elect to use a different structure, in Moov’s sole discretion after consideration of automation and other risk, compliance, and business reasons determined solely by Moov. Any funds recorded as a balance may be held in one or more pooled holding accounts held by a Financial Services Organization of Moov’s choice. The holding account is not Merchant’s deposit account and Merchant cannot establish a depository or financial account with Moov. The funds held in a holding account are not eligible for individual insurance and may not be eligible for share insurance offered by the national credit union share insurance fund. In the event of a financial services provider receivership, you may lose value. The amount deposited may be either a gross or a net amount which subtracts portions of the Fees through each settlement and or disbursement. Gross or net settlement is determined in the sole discretion of Moov, with the initial determination of net as the one that is being used for Merchant. Payouts to Merchant’s account will normally register within two (2) to three (3) business days, however, the registration times may vary. The transaction will be considered complete when the Moov has received the funds and when such funds have been accepted by the designated bank or financial institution.
Should Moov decide to conduct an investigation or resolve any dispute related to the Sub-Merchant Account, Moov may defer payout or restrict access to Merchant funds. Moov retains the right to defer Merchant settlement funds or restrict access to Merchant funds to conduct an investigation or resolve any dispute related to the Sub-Merchant Account, including as required by law, regulation or court order, or if otherwise requested by law enforcement or governmental entity.
5. Sub-Merchant Account Activity. Merchant is responsible for monitoring Merchant transactions and ensuring that Moov’s payments are correct. Merchant is responsible for reconciling all transactions with the Sub-Merchant Account and keeping permanent records of such transactions and in accordance with applicable law.
6. Reserve Account/Security Interest; Set Off. For the purpose of providing a source of funds to pay damages which Moov or its processors may potentially suffer under this Sub-Merchant Processing Agreement and to pay Fees, fines, chargebacks or other amounts Merchant may owe Moov under this Sub-Merchant Processing Agreement or assessed by Moov’s processor, a separate reserve account (the "Reserve Account") may be established from time to time by Merchant, Moov, or its processors to secure Merchant’s current and/or future potential obligations as determined by Moov or Moov’s processors, with funding of the Reserve Account to be provided by Merchant. Moov shall have sole control of any Reserve Account and may use it to cover any shortfalls in the transactions of Merchant, Merchant’s use of the Sub-Merchant Processing Services, or any Transaction Losses (as defined below) related to Merchant for any reason, as well as to pay or reimburse Moov for any other unpaid obligations owed by Merchant to Moov. Merchant shall cure any deficiencies in any Reserve Account balance within three (3) days after receipt of notice of such deficiency. The Reserve Account will be in an amount as determined by Moov and its processors to protect their present or future interests and may be raised, reduced or removed at any time by Moov, in its sole discretion. If there are not sufficient funds in the Reserve Account, Moov has the right of recoupment and set-off and may fund the Reserve Account from any funding source associated with the Merchant, including but not limited to the Sub-Merchant Account, any funds due to Merchant under this Sub-Merchant Processing Agreement or any funds available in Merchant’s bank account. Merchant grants Moov a security interest in and lien on any and all funds held in (a) any Reserve Account, (b) all funds at any time in the Sub-Merchant Account, regardless of the source of funds, and (c) any amounts due to Merchant under this Sub-Merchant Processing Agreement. Merchant agrees to provide other security to Moov upon request to secure Merchant’s obligations under this Sub-Merchant Processing Agreement. This security interest may be exercised by Moov without notice or demand of any kind by making an immediate withdrawal, debit or freezing of Merchant assets. Moov may also make reversals of deposits or transfers made to the Sub-Merchant Account. Merchant agrees to execute any additional documentation required for the Moov to validate or perfect the Moov’s security interest.
Merchant hereby authorizes Moov to exercise any rights and remedies of a secured party under applicable law in Moov’s discretion and to set off against amounts that may be owed to Merchant or the balance in the Reserve Account an amount equal to Losses (as defined below) incurred by Moov related to services performed by Moov and all Transaction Losses (as defined below) and Losses associated with Sub-Merchant Processing Services, and any other Losses incurred by Moov in connection with the Merchant’s acts, omissions, or services.
7. Honoring Payment Acceptance Methods.
a. Whenever possible, Merchant will identify the payor using the Payment Acceptance Method and purporting to be a person authorized to use the Payment Acceptance Method and verify the expiration date and any other means including but not limited to CVV codes. Merchant will not honor the Payment Acceptance Method if the Payment Acceptance Method has expired or, if applicable, if Merchant determines that the account number on the Payment Acceptance Method does not match the account number on the Payment Acceptance Method’s magnetic stripe or the account number is listed on a current Electronic Warning Bulletin file.
b. Merchant is responsible for ensuring that the person making payment understands that Merchant is responsible for the transaction, including the goods or services that are the subject of the transaction. In addition, Merchant is solely responsible for all customer service issues relating to Merchant’s transactions and business (including Merchant’s goods or services—including pricing, fulfillment, order cancellation, returns, refunds and adjustments, warranty, and support).
c. Merchant will not add any amount to the posted price of the transactions related to your business (including the posted prices of the goods or services) that Merchant offers as a condition of paying with a Payment Acceptance Method that is not consistent with the Rules.
d. Merchant will properly disclose to the person making payment, at the time of transaction, any limitation Merchant may have on accepting returned merchandise, and Merchant will obtain and maintain the authorization of the person making payment and acknowledgment of Merchant’s refund and return policy in accordance with applicable law. Merchant’s refund and return policy must be in accordance with the Rules. If Merchant’s refund and return policy prohibits returns or is unsatisfactory to the person making payment, Merchant may still receive a Chargeback relating to such transactions.
e. Merchant agrees to make a receipt available to the person making payment for any transaction in accordance with applicable laws and regulations. Merchant may provide the person making payment the option to decline a written receipt in accordance with applicable laws and regulations. Merchant may also offer electronic receipts delivered by SMS or e-mail to the person making payment in accordance with applicable laws and regulations.
f. Merchant may only submit payments through the Sub-Merchant Processing Services that are authorized by Merchant’s customers. To enable Moov to process Payment Acceptance Methods for Merchant, Merchant authorizes and directs Moov, its affiliates, and the Financial Services Organizations to receive and settle any payment processing amounts addressed to Merchant through the Sub-Merchant Processing Services.
Merchant is responsible for: (i) acquiring appropriate consent to submit payments through the Sub-Merchant Processing Services on Merchant’s customers’ behalf; (ii) providing confirmation or receipts to the person making payment for each payment; (iii) verifying identities of those making payments; and (iv) determining Merchant’s customer’s eligibility and authority to complete transactions. However, even authorized transactions may be subject to a dispute. Moov is not responsible for or liable to Merchant for authorized and completed payments that are later the subject of a dispute, refund, or reversal, are submitted without authorization or in error, or violate any laws.
Merchant is immediately responsible to Moov for all disputes, refunds, reversals, returns, or fines. Moov may decline to act upon a refund instruction, or delay execution of the instruction, if: (i) it would cause Merchant’s account balance to become negative; (ii) Merchant is the subject of bankruptcy, insolvency, or other suspension of Merchant’s business operations; or (iii) where Moov otherwise believes that there is a risk that Merchant will not meet Merchant’s liabilities under this Sub-Merchant Processing Agreement (including with respect to the payment that is the subject of the refund instruction). Merchant is liable for all losses Merchant incurs when lost or stolen payment credentials or accounts are used to may payments to Merchant (including when such credentials or accounts are used to purchase products or services from Merchant) as well as when unauthorized transactions are paid to Merchant. Moov does not and will not insure Merchant against losses caused by fraud or unauthorized transactions under any circumstances.
8. Returns. By using the Sub-Merchant Processing Services, Merchant agrees to process returns of, and provide refunds and adjustments for, Merchant’s business, including Merchant’s goods and services, through the Sub-Merchant Account in accordance with this Sub-Merchant Processing Agreement, Moov’s processor rules or the Rules.
9. Chargebacks. The amount of a transaction may be reversed or charged back to the Sub-Merchant Account ("Chargeback") for reasons, including, but not limited to, allegations relating to any one of the following: (a) an invalid Payment Acceptance Method account submitted through Merchant; (b) neither the person making payment nor a person authorized by the person making payment received the goods or services requested; (c) the person making payment disputes the quality of the goods or services received; (d) the person making payment never received a credit for a returned item or a cancelled order; (e) the person making payment was charged incorrectly; (f) the authorization code is invalid; (g) the Payment Acceptance Method was expired or not effective; (h) the transaction is disputed; (i) the transaction is reversed by the Financial Services Organization, Moov’s processor, or a financial institution for any reason, (j) the transaction was not authorized; (k) transaction is made without the account owner’s authorization; (l) a transaction violates the Financial Services Organizations’ Rules; or (m) the transaction is allegedly unlawful, suspicious, or in violation of the terms of this Sub-Merchant Processing Agreement.
For any transaction that results in a Chargeback, Moov may withhold the Chargeback amount from the Reserve Account. Merchant may be subject to a Chargeback on sales for a minimum period of 180 days from the date the sale was entered into the processing system. Moov may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed from the Merchant’s accounts, including without limitation the Sub-Merchant Account, the Reserve Account, if any, any proceeds due to Merchant, or Merchant’s bank account. If Merchant has pending Chargebacks or Moov reasonably believes that a Chargeback is likely, Moov may withhold or delay payments from said accounts of Merchant for the later of 270 days following termination of this Sub-Merchant Processing Agreement or 180 days from Merchant’s last Chargeback. Merchant agrees to respond to all Chargebacks promptly. If Moov is unable to recover funds related to a Chargeback, Merchant will pay Moov the full amount of the Chargeback immediately upon demand. Merchant agrees to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of Moov related to Moov’s efforts to collect any Merchant’s accounts deficit balances unpaid by Merchant. Note, there are strict timelines for Merchant to respond that may be imposed by the card organizations or networks and other Financial Services Organizations. In the event that Moov facilitates a Chargeback representment, Merchant shall adhere to such timelines.
If Moov determines that Merchant is incurring an excessive amount of Chargebacks, Merchant may be subject to a monitoring program, including a monitoring program administered by the Financial Services Organizations. Merchant is responsible for monitoring monthly Chargeback percentage and developing Chargeback reduction programs as required by Moov or its Financial Services Organizations. Moov may also establish controls or conditions governing the Merchant’s account, including but not limited to (a) an increase in processing fees, (b) creating a Reserve Account in an amount determined by Moov to cover anticipated Chargebacks and related fees, (c) delaying payouts, and (d) terminating or suspending the Sub-Merchant Processing Services and this Sub-Merchant Processing Agreement.
10. Processing Errors. Merchant agrees to contact Moov immediately if they discover an error or missing transaction on the Sub-Merchant Account. Merchant must immediately notify Moov in writing of any error in payments made to Merchant or missing transaction if Merchant becomes aware of any error or missing transaction, however, in no event later than thirty (30) days of the asserted error or missing transaction. Merchant failure to timely provide written notice to Moov of any such errors or missing transactions will be considered a waiver of any right or claim to amounts owed to Merchant. For 60 days following Moov’s receipt of Merchant’s timely written notice of an error or missing transaction, Moov will investigate the situation.
Notices required to be provided to Moov under this Section must be given in writing at the address set forth here, and will be deemed to have been delivered and given for all purposes: (a) on the delivery date, if delivered by hand courier to Moov; and (b) two Moov business days after deposit with a commercial overnight carrier. If to Moov, the Moov’s address for notices is as follows: Moov Financial, Inc., 6820 University Ave., Suite 132, Cedar Falls, IA 50613.
12. LIMITATION OF LIABILITY; NO WARRANTY. FOR PURPOSES OF THIS SUB-MERCHANT PROCESSING AGREEMENT:
- "TRANSACTION LOSSES" MEANS, WITH RESPECT TO THE MERCHANT’S USE OF THE SUB-MERCHANT PROCESSING SERVICES, (I) ALL CHARGEBACKS, DISPUTE RESOLUTIONS AND ASSOCIATED SUB-MERCHANT PROCESSING SERVICES INCLUDING FEES OR FINES IN ACCORDANCE WITH APPLICABLE LAW; (II) ALL COMPROMISED ACCOUNTS, FORGERIES, UNAUTHORIZED TRANSACTIONS, "ERRORS" (AS DEFINED BY REGULATION E), FRAUD, FRAUD LOSSES, NETWORK FEES, OR OTHER LIABILITIES THAT MOOV INCURS RELATED TO THE MERCHANT’S USE OF THE SUB-MERCHANT PROCESSING SERVICES; (III) ANY LOSSES ASSOCIATED WITH THE FINANCIAL SERVICES ORGANIZATIONS’ SUB-MERCHANT PROCESSING SERVICES; AND (IV) LOSSES, FINES, PENALTIES, OR ASSESSMENTS BY A REGULATORY AUTHORITY THAT MAY BE INCURRED BY MOOV OR FINANCIAL SERVICES ORGANIZATIONS IN CONNECTION WITH A SUB-MERCHANT PROCESSING SERVICES DISPUTE OR ERROR OR ANY OTHER UNAUTHORIZED TRANSACTION IN CONNECTION WITH THE SUB-MERCHANT PROCESSING SERVICE.
- "LOSSES" SHALL MEAN ALL PENALTIES, LOSSES, COSTS, EXPENSES AND OTHER LIABILITIES AND ALL RELATED COSTS AND EXPENSES (INCLUDING TAXES, REASONABLE LEGAL FEES AND DISBURSEMENTS AND COSTS OF INVESTIGATION, LITIGATION, SETTLEMENT, JUDGMENT, INTEREST AND PENALTIES).
- MERCHANT SHALL BE RESPONSIBLE AND LIABLE TO MOOV FOR ALL EXPENSES ASSOCIATED WITH ANY LOSSES OR TRANSACTION LOSSES RELATING TO THE MERCHANT’S USE OF THE SUB-MERCHANT PROCESSING SERVICES INCLUDING, BUT NOT LIMITED TO, THOSE RESULTING FROM TRANSACTION REVERSALS, FAILED OR RETURNED TRANSACTIONS, FRAUD, CHARGEBACKS, ERRORS (AS THAT TERM IS DEFINED IN REGULATION E (12 CFR PART 1005), INSUFFICIENT FUNDS, DISPUTES, UNAUTHORIZED PROCESSING OF REQUESTS FOR DISBURSEMENT OF FUNDS, EXTERNAL FRAUD AND FRAUD-RELATED THEFT AT MERCHANT, THE TERMINATION OR SUSPENSION OF SUB-MERCHANT PROCESSING SERVICES, OR PARTICIPATION IN THIRD PARTY SERVICES, UNLESS SUCH EVENT WAS CAUSED BY THE MOOV’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT. IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOOV’S CUMULATIVE LIABILITY TO MERCHANT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF $10,000 OR, THE AMOUNT EQUAL TO THE AGGREGATE OF MONTHLY NET FEES PAID BY MERCHANT IN THE THREE MONTH PERIOD PRIOR TO THE MONTH THAT THE INCIDENT GIVING RISE TO LIABILITY OCCURRED.
- MOOV WILL NOT ACCEPT RESPONSIBILITY FOR ERRORS, ACTS, OR FAILURE TO ACT BY OTHERS, INCLUDING BUT NOT LIMITED TO, MERCHANT, MERCHANT’S AGENTS, THIRD PARTY SUPPLIERS OF SOFTWARE, EQUIPMENT OR SERVICES; OR, PATTERNING ORGANIZATIONS, COMMUNICATION COMMON CARRIERS, DATA PROCESSORS OR CLEARINGHOUSES THROUGH WHICH TRANSACTIONS MAY BE PASSED, ORIGINATED AND/OR AUTHORIZED. MOOV WILL NOT BE RESPONSIBLE FOR ANY LOSS, LIABILITY OR DELAY CAUSED BY FIRES, EARTHQUAKES, WAR, CIVIL DISTURBANCES, POWER SURGES OR FAILURES, ACTS OF GOVERNMENTS, ACTS OF TERRORISM, LABOR DISPUTES, FAILURES IN COMMUNICATION NETWORKS, LEGAL CONSTRAINTS OR OTHER EVENTS BEYOND THE CONTROL OF MOOV.
- THE ENTIRE CUMULATIVE LIABILITY OF MOOV, MOOV’S AFFILIATES, ITS SUPPLIERS, ITS FINANCIAL INSTITUTIONS OR PROCESSORS FOR ANY REASON ARISING FROM OR RELATING TO THIS SUB-MERCHANT PROCESSING AGREEMENT SHALL BE LIMITED AS PROVIDED HEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOOV, ITS AFFILIATES, ITS PROCESSORS, ITS FINANCIAL INSTITUTIONS AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, THE LOSS, CORRUPTION OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS, USE OF THE SERVICES, USE OF ANY SOFTWARE ASSOCIATED WITH THE SERVICES WITH HARDWARE OR OTHER SOFTWARE THAT DOES NOT MEET MOOV’S SYSTEMS REQUIREMENTS OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF MOOV, ITS AFFILIATES, ITS SUPPLIERS, ITS PROCESSORS, ITS FINANCIAL INSTITUTIONS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MOOV AND MERCHANT. MOOV WOULD NOT HAVE PROVIDED THE SERVICES WITHOUT SUCH LIMITATIONS.
- IN THE EVENT OF ANY UNAUTHORIZED PROCESSING, FRAUD OR FRAUD-RELATED THEFT, MERCHANT WILL COOPERATE FULLY WITH MOOV AND ENGAGE IN ALL REASONABLE EFFORTS TO LOCATE AND PROSECUTE THE PERPETRATOR OF ANY SUCH UNAUTHORIZED PROCESSING, FRAUD OR FRAUD-RELATED THEFT, IF REQUESTED BY MOOV.
13. INDEMNIFICATION. FOR PURPOSES OF THIS SUB-MERCHANT PROCESSING AGREEMENT:
- MERCHANT AGREES TO INDEMNIFY, DEFEND AND HOLD MOOV, ITS PROCESSORS, FINANCIAL INTUITIONS, SUPPLIERS, CONTRACTORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND ITS THIRD PARTY SUPPLIERS, LICENSORS, AND PARTNERS HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, AND LIABILITIES, COSTS AND EXPENSES, INCLUDING WITHOUT LIMITATION LEGAL FEES AND EXPENSES, ARISING OUT OF OR RELATED TO MERCHANT’S (INCLUDING MERCHANT’S EMPLOYEES’ AND DESIGNATED REPRESENTATIVES’ OR AGENTS’) USE OR MISUSE OF THE SERVICES, ANY VIOLATION BY MERCHANT OF THIS SUB-MERCHANT PROCESSING AGREEMENT, ANY BREACH OF THE REPRESENTATIONS, WARRANTIES, AND COVENANTS MADE BY MERCHANT IN THIS SUB-MERCHANT PROCESSING AGREEMENT, ANY TRANSACTIONS WHICH MERCHANT SUBMITS TO MOOV (INCLUDING CHARGEBACKS), OR MERCHANT’S VIOLATION OF THE RULES OR OF APPLICABLE LAWS OR REGULATIONS. MOOV RESERVES THE RIGHT, AT MERCHANT’S EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH MERCHANT IS REQUIRED TO INDEMNIFY MOOV, INCLUDING RIGHTS TO SETTLE, AND MERCHANT AGREES TO COOPERATE WITH THE DEFENSE AND SETTLEMENT OF THESE CLAIMS. MOOV WILL USE REASONABLE EFFORTS TO NOTIFY MERCHANT OF ANY CLAIM, ACTION, OR PROCEEDING BROUGHT BY A THIRD PARTY THAT IS SUBJECT TO THE FOREGOING INDEMNIFICATION UPON BECOMING AWARE OF IT.
14. Survival. All provisions of this Sub-Merchant Processing Agreement that give rise to a party’s ongoing obligation or rights will survive termination of this Sub-Merchant Processing Agreement, including Sections 12 and 13.