User agreement last updated on August 2, 2020

Welcome to Facepay!

By accepting the contract terms as a part of the online setup process by clicking “EXECUTE CONTRACT” button or by otherwise signing up for an account, accessing or using the Service, you are accepting this contract and liability on behalf of the organization you represent and agree to be bound by the following terms and conditions in this legal agreement (this “Agreement”) between your organization and any organization you represent (collectively, “you” or the “Customer”) and Facepay Inc., (“Facepay” or “we”, or “our”), governing your use of Facepay’s online service and any related software your organization may use on your computer (the “Service”), Facepay’s Privacy Policy, Acceptable Use Policy, Electronic Communications Delivery Policy and any other legal notices, conditions or guidelines provided by Facepay related to the use of the Service, which may be posted and updated from time to time. This service agreement supersedes any and all prior Facepay service agreements that the Customer may have signed. The Privacy Policy, Terms of Use, Public Review and Comments Policy and all other guidelines or notices are hereby incorporated into this Agreement by this reference. In the event of any inconsistency between any term or condition in the comprising documents, these terms and conditions will control. If you are entering into this Agreement, you represent that you are authorized to accept the terms of this Agreement on behalf of the organization you represent. If you do not have such authority, or if you do not agree with the terms and conditions of this Agreement, you must not click on the “EXECUTE CONTRACT” button and must close the electronic contract, and your organization may not use the Service.

Some terms have specific definitions in the ‘Definitions’ section.

We may amend this Agreement at any time by posting a revised version on our website. The revised version will be effective at the time we post it. If the revised version includes changes that reduce your organization’s rights or increase your organization’s responsibilities, we may provide you with notice regarding these changes via email. We reserve the right to amend this agreement at any time without notice, subject to applicable law. By using our services after any changes to this user agreement become effective, your organization agrees to abide and be bound by those changes. If your organization does not agree with any changes to this user agreement, you may close your account.

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Acceptable Use Policy

Your organization is responsible for complying with all applicable laws in all of your actions related to your use of Facepay's services. Your organization and all its employees must strictly adhere to the terms of this Acceptable Use Policy.

Prohibited Activities

Your organization may not use the Facepay service for activities that:

1. violate any law, statute, ordinance or regulation.
2. relate to transactions involving (a) narcotics, steroids, certain controlled substances or other products that present a risk to consumer safety, (b) drug paraphernalia, (c) cigarettes, (d) items that encourage, promote, facilitate or instruct others to engage in illegal activity, (e) stolen goods including digital and virtual goods, (f) money laundering activities or cryptocurrency, (g) the promotion of hate, violence, racial or other forms of intolerance that is discriminatory or the financial exploitation of a crime, (h) items that are considered obscene, (i) items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction, (j) certain sexually oriented materials or services, (k) ammunition, firearms, or certain firearm parts or accessories, or (l) certain weapons or knives regulated under applicable law.
3. relate to transactions that (a) show the personal information of third parties in violation of applicable law, (b) support pyramid or ponzi schemes, matrix programs, other "get rich quick" schemes or certain multi-level marketing programs, (c) are associated with purchases of annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card, (d) are for the sale of certain items before the seller has control or possession of the item, (e) are by payment facilitators to collect payments on behalf of merchants, (f) are associated with the sale of traveler's checks or money orders, (h)involve currency exchanges or check cashing businesses, (i) involve certain credit repair, debt settlement services, credit transactions or insurance activities, or (k) involve offering or receiving payments for the purpose of bribery or corruption.
4. involve the sales of products or services identified by government agencies to have a high likelihood of being fraudulent.

 

Accounts

Facepay accounts are for merchants of the following business types:

• Personal
• Sole Proprietorship
• Limited Liability Company (LLC) or Corporation
• Limited Liability Partnership (LLP) or Partnership
• Trust or Charity

With a Facepay account, you will be able to:

• Eliminate credit card fees by converting your customers to direct debit.
• Receive payments from your customers without any payment processing fees.
• Get paid for your services without having to wait for your customers to do the job.

Opening an Account

To be eligible to create an Account on behalf of your organization, you must be a resident of the United States or one of its territories, be at least 18 years old or the age of majority in your state of residence, be a merchant, create a user login, and use a cellular/wireless telephone number that you own.

For security purposes, we use secure login services from Auth0. You are required to use your login account credentials for your organization’s Facepay sign-up and login.

Keep confidential the login account credentials used to access your Account and Facepay Services. You must also keep your phone number, email address and other contact information current in your organization’s Account profile.

Closing your Account

You may close your organization’s Account and terminate your relationship with us without cost, but your organization will remain liable for all obligations related to your Account even after the Account is closed.

In certain cases, you may not close your organization’s Account, including:

• To evade an investigation.
• If you have an open dispute or claim.
• If you have an unsettled transfer.

 

Connecting a Bank Account to Your Account

In order to receive payments through through your organization’s Account, you must connect to a bank account. We work with our partners Dwolla, as a payment facilitator, and Plaid, for bank account automation.

In order to use the payment functionality of our application, your organization must open a "Dwolla Platform" account provided by Dwolla, Inc. and your organization must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in the Dwolla account are held by Dwolla's financial institution partners as set out in the Dwolla Terms of Service. Your organization authorizes us to collect and share with Dwolla your personal information including full name, date of birth, social security number, physical address, email address and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your organization’s Dwolla account through our application, and Dwolla account notifications will be sent by us not Dwolla. We will provide customer support for your Dwolla account activity, and can be reached at www.facepay.io, [email protected] and/or (408) 204-5197.

You can disconnect a U.S. bank account from your organization’s Account at any time by directly contacting Facepay customer service or your Facepay merchant.

 

Required identifying information

We must verify required identifying information you provide to us as an authorized representative of your organization with Know Your Customer (KYC) procedures to assess and monitor customer risk. These procedures are also a legal requirement to comply with anti-money laundering (AML) laws. The required identifying information is: name, phone number, email, business name, physical address, date of birth, and social security. If you are a sole proprietor, you are required to enter your employer identification number (EIN) and business classification code.

To ensure your success as a merchant, Facepay requires the following materials from you to maximize customer engagement and adoption:

1. Your organization’s logo and your common business name, to confirm and update from what was initially submitted for Know Your Customer verification.
2. A minimum of 1 person on your staff must attend a 1-hour training with our success team.
3. We have standard email and text templates for all new organizations. Either 1) your organization supplies Facepay with a customer list comprised of emails and cell phone numbers to contact on your behalf or 2) your organization sends the promotion to your customers within 7 days of receiving your welcome kit.
4. Your organization’s placement of Facepay signage through your place of business including, but not limited to, counter cards, window decals, and incentive signs. Facepay holds the right to share any examples or illustrations of your organization’s use of Facepay signage and marketing for our social media.
5. While it is not required, we strongly recommend you become part of our mission to eliminate credit card fees for small businesses by signing our petition at change.org and joining our Facebook group.

 

Receiving Payment from Your Customers

In order to charge and automatically receive payments from Your Organization’s Customers through Facepay Services, Your Customers must be connected to your Account. To connect Your Customers to your Account, you need to invite Your Customers to participate in Facepay for your organization by using Customer Invitations, which are solely provided by Facepay, and accessible when you log into your Account. You can send Your Customers a text invitation or have them scan a QR code. Your Customers need to accept your organization’s invitation, verify their identity with their login account, and authorize their preferred payment method.

THE DECISION TO CONNECT TO YOUR ACCOUNT IS AT THE SOLE DISCRETION OF YOUR ORGANIZATION’S CUSTOMERS. WE DO NOT WARRANT THAT EVERY CUSTOMER INVITATION YOU SEND WILL BE ACCEPTED BY YOUR CUSTOMERS. HOWEVER, FOR CUSTOMERS WHOM YOU HAVE SENT INVITES TO, BUT HAVE NOT ACCEPTED YOUR INVITATION, YOU CAN REMIND THEM TO PARTICIPATE WITH OUR INVITATION REMINDER FEATURE FREE OF CHARGE.

Charging Your Customers for your services

When your organization charges Your Customers an amount via your Account, that specified amount will automatically be transferred from their funding source and deposited into the U.S. bank account connected to your organization’s Account by way of a clearing process with our partner Dwolla and may involve an intermediary account to facilitate the transfer. Facepay acts as a payment facilitator and does not hold nor transmit funds. Your Customers will also receive a receipt to review the amount and have the option to open a dispute if they have any issues with the transaction.

YOUR ORGANIZATION’S CUSTOMERS SHOULD CONFIRM THAT THEIR BANK ACCOUNT CONTAINS FUNDS SUFFICIENT TO COVER ANY PAYMENTS, IF FUNDED BY THEIR BANK ACCOUNT, TO AVOID OVERDRAFT OR OTHER FEES THEIR FINANCIAL INSTITUTION MAY CHARGE.

You can cancel a charge before 4PM central time the same day; otherwise the charge will be cancelled on the next business day.

YOUR ORGANIZATION AND YOUR CUSTOMERS ARE SOLELY RESPONSIBLE FOR MAKING SURE YOUR SERVICES ARE COMPLETED BEFORE CHARGES FOR PAYMENT ARE MADE. FACEPAY IS NOT LIABLE FOR ANY DAMAGES, FEES, OR LOSSES THAT MAY BE INCURRED SHOULD YOU CHOOSE TO DO OTHERWISE. YOU SHOULD ALSO MAKE SURE YOU ARE CHARGING THE RIGHT CUSTOMER AND CONFIRM THAT THE AMOUNT YOU ARE CHARGING IS CORRECT.

Disputes regarding payment transactions

In general, your organization accepts responsibility to remediate disputes with your customers directly. This is the liability your organization assumes by taking on the assumption of risk.

In the event Your Customer files a dispute for an automatic payment they made to your organization’s charge for payment, your organization is responsible for resolving any disputes that your organization may have with Your Customer that may arise from the payment transaction. If your organization has exhausted all options for resolving a dispute with Your Customer, you may choose to contact Facepay customer service explaining the situation. We will make reasonable efforts to ensure your problem is processed in a timely manner.

Limits

For your safety and Your Customers’, we may, at our discretion, impose limits on the amount and/or the number of times your organization may charge Your Customers. You can view limits by contacting Facepay.

Additional limits may be imposed from time to time at our sole discretion.

Reviews conducted on charges for payment

When we identify a potentially high-risk charge for payment from a merchant to a customer, we review the transaction more closely before allowing it to proceed. This process may take up to 3-5 Business Days.

 

Term

Unless otherwise agreed by Facepay, this Agreement will be in force for a term of twelve (12) months (“Initial Term”) beginning on the start date of your subscription for the Service. Upon completion of the Initial Term, this Agreement will AUTOMATICALLY RENEW on an annual basis (“Renewal Term”). The 12-month contract will be paid monthly. As part of Facepay’s guarantee, we will not begin billing your organization until you save the same amount in credit card fees. We calculate this as total purchases in the month multiplied by 3.0%. You may cancel at any time under settings. At the end of that notice period, your organization will cease to have access to the Facepay Service. Accounts cannot be reinstated for the privacy and security of you and your customers.

Termination

Any breach of your payment obligations or unauthorized use of the Facepay Technology, Content or Service, or Breach of the Public Review Policy (defined below) will be deemed a material breach of this Agreement. Facepay, in its sole discretion, may terminate your password, account or use of the Service if anyone in your organization breaches or otherwise fails to comply with this Agreement. In addition to any other rights granted to Facepay herein, Facepay reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent, if you violate the Facepay Public Review and Comment Policy, the Facepay Terms of Use, or otherwise engage in fraudulent or unlawful activities. In addition, Facepay may terminate a free account at any time in its sole discretion. Your organization agrees and acknowledges that Facepay has no obligation to retain the Customer Data, and may delete such Customer Data, if anyone in your organization has materially breached this Agreement, and such breach has not been cured within fifteen (15) days of notice of such breach. In addition, failure to pay Service Fees will result in termination of Services as deemed appropriate by Facepay. Facepay may modify, replace, refuse access to, suspend or discontinue the Service, partially or entirely, or add, change and modify prices for all or part of the Service for you or for all users at any time and in Facepay’s sole discretion. Facepay will have no liability for any suspension or termination of your account in accordance with this paragraph.

Billing & Pricing

Facepay charges and collects in advance for use of the Service. No refunds will be available for fees your organization has paid. Facepay will automatically renew and bill your business debit account on file. You expressly agree that Facepay is authorized to store your business debit account and to charge your organization (i) a recurring monthly fee for any applicable Service billed on a monthly basis automatically, (ii) any other fees for the Service you may purchase, and (iii) any applicable taxes in connection with your use of the Service to the payment account you provide and to reimburse us for all collection costs and interest for any overdue amounts. If the payment account you provide expires and your organization does not provide new payment account information or cancel your account, you authorize us to continue billing you for all fees associated with the remaining duration of your service agreement and your organization agrees to remain responsible for any uncollected fees. If your account expires or we cannot collect the fees for any reason, you have 30 days to provide a new valid business debit account for us to charge. If you do not provide new card information within 30 days, Facepay will suspend the Services and will only reinstate them once your organization pays us what you owe plus interest which will accrue at a rate of 1.5% per month.

The renewal charge will be equal to the then-current license fee in effect at the time of renewal. The pricing during any automatic Renewal Term will renew at the then current rate and Facepay will give your organization notice of a pricing increase at least thirty (30) days before the end of that prior Term, in which case the pricing increase will be effective upon Renewal and thereafter in the new Term. Your organization may be allowed space and a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount, Facepay reserves the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the amount until you upgrade to a higher level package, terminate the account or charge you an additional fee for the overages. Unused bandwidth in one month cannot be carried over the next month.

Fees for other services will be charged on an as-quoted basis.

Taxes

Unless otherwise stated, the Facepay fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction, plus interest, penalty and additions thereon (collectively, “Taxes”). Your organization is responsible for paying all Taxes applicable to your purchase or use of Facepay products or services. If Facepay has the legal obligation to pay or collect Taxes (or an amount in respect of Taxes) for which your organization is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by your organization, unless you provide Facepay with a valid tax exemption certificate authorized by the appropriate taxing authority. Facepay is responsible solely for taxes based on its income.

Account Statements

You have the right to receive an account statement showing your Account activity. You may view your Account statement by logging into your Account.

 

Refunds, Reversals and Chargebacks

Payments that are invalidated and reversed

Payments may be invalidated and reversed by us if, among other reasons, we sent the payment to you in error, the funding transaction is declined or reversed, the payment was unauthorized or unfunded, or if the payment was for activities that violated this user agreement or any other agreement with us.

If a payment that is later invalidated for any reason, your organization or Your Customer may be liable to us for the full amount of the payment and we may recover the amount of the payment (plus any fees) from your organization. We may recover the amount of the payment from either your organization or Your Customer of an invalidated payment in our discretion (subject to applicable law). For example, if you charged Your Customers an amount and their payment is funded by a bank account and the bank informs us it cannot cover the payment due to a lack of funds or a dispute, we may hold Your Customers liable for the payment, or if you were the recipient of that payment, we may reverse that payment from your account to cover the liability.

When recovering the amount of an invalidated payment from your organization, we may apply any money sent to you on Facepay, request that you add money to your account for the amount of the payment and apply that money to amounts owed, and/or we may:

• engage in collection efforts to recover such amounts from your organization;
• take any or all action as outlined under Amounts Owed to Us; and
• place a limitation or take other action on your Account as outlined under Restricted Activities and Holds and Limitations.

If we invalidate a payment from Your Customer because the card issuer or originating bank declined or reversed the transaction, then Your Customer may be liable for the payment even if you disagree with the decision of the card issuer or originating bank to decline or reverse the payment. If your organization believes that a payment received with your Account was not previously charged for, then you must notify us immediately, even if you (or someone else) disputes the transaction with the card issuer or originating bank. Please see below under the heading Reporting an Unauthorized Transaction for information about how to notify us. If your organization fails to report the unauthorized activity directly to us, then we may recover the amount of the reversed payment from you, as described above.

If a charge is made by a customer and is cancelled or denied for any reason, Facepay reserves the right to charge back the customer for the full amount of the Dwolla fees that were charged to Facepay for that transaction.

 

Restricted Activities

In connection with your organization’s use of our websites, your Account, the Facepay Services, or in the course of your interactions with us, other customers, or third parties, you must not:

• Breach this user agreement, the Acceptable Use Policy, or any other agreement between you and us;
• Violate any law, statute, ordinance, or regulation (for example, those governing financial services, consumer protections, unfair competition, anti-discrimination or false advertising);
• Infringe our or any third party's copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
• Create or control more than one personal account for yourself without our express authorization, through, among other methods, using a name that is not yours, using a temporary email address or phone number, or providing any other falsified personal information;
• Act in a manner that is defamatory, trade libelous, threatening or harassing;
• Provide false, inaccurate or misleading information;
• Receive what we reasonably believe to be potentially fraudulent money or payments for advertising, marketing, or otherwise on an unsolicited and unauthorized basis;
• Refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to us;
• Attempt to double dip during the course of a dispute by receiving or attempting to receive money from both us and the recipient of a payment, bank or card issuer for the same transaction;
• Control an account that is linked to another Account that has engaged in any of these restricted activities;
• Use the Facepay Services in a manner that results in or may result in:
• complaints;
• disputes; claims, reversals, chargebacks,
• fees, fines, penalties or other liability or losses to Facepay, other customers, third parties or you;
• Use your Account or the Facepay Services in a manner that we, Visa, Mastercard, American Express, Discover, Chase or any other electronic funds transfer network reasonably believes to be an abuse of the card system or a violation of card association or network rules, or for the purpose of earning rewards, perks, miles, points, etc. with your credit card, debit card, or bank account;
• Have any amounts owed to us;
• Provide yourself a cash advance from your credit card (or help others to do so);
• Access the Facepay Services from outside the United States;
• Take any action that imposes an unreasonable or disproportionately large load on our websites, software, systems (including any networks and servers used to provide any of the Facepay Services) operated by us or on our behalf or the Facepay Services;
• Facilitate any viruses, trojan horses, malware, worms or other computer programming routines that attempts to or may damage, disrupt, corrupt, misuse, detrimentally interfere with, surreptitiously intercept or expropriate, or gain unauthorized access to any system, data, information or Facepay Services;
• Use an anonymizing proxy; use any robot, spider, other automatic device, or manual process to monitor or copy our websites without our prior written permission; or use any device, software or routine to bypass our robot exclusion headers;
• Interfere or disrupt or attempt to interfere with or disrupt our websites, software, systems (including any networks and servers used to provide any of the Facepay Services) operated by us or on our behalf, any of the Facepay Services or other users’ use of any of the Facepay Services;
• Take any action that may cause us to lose any of the services from our Internet service providers, payment facilitators, or other suppliers or service providers;
• Use the Facepay Services to test credit card or bank debit behaviors, or make excessive or unexplainable transactions;
• Circumvent any of our policies or determinations about your Account such as temporary or indefinite suspensions or other account holds, limitations or restrictions, including, but not limited to, engaging in the following actions: attempting to open new or additional Account(s) when you have amounts owed to us or when your Account has been restricted, suspended or otherwise limited; opening new or additional Accounts using information that is not your own (e.g. name, address, email address, etc.); or using someone else’s Account; or
• Harass and/or threaten our employees, agents, or other users.

Actions We May Take if You Engage in Any Restricted Activities

If we believe that that your organization has engaged in any of these activities, we may take a number of actions to protect ourselves, our customers and others at any time at our sole discretion. The actions we may take include, but are not limited to, the following:

• Terminate this user agreement, limit your Account, and/or close or suspend your Account, immediately and without penalty to us;
• Refuse to provide the Facepay Services to your organization in the future;
• Limit your organization’s access access to our websites, software, systems (including any networks and servers used to provide any of the Facepay Services) operated by us or on our behalf, your Account or any of the Facepay Services, including limiting your ability to pay or send money with any of the payment methods linked to your Account, restricting your ability to send money or make bank transfers;
• Update inaccurate information you provided us;
• Take legal action against your organization; or
• If you’ve violated our Acceptable Use Policy, then your organization is also responsible for damages to us caused by your violation of this policy.

If we close your Account or terminate your use of the Facepay Services for any reason, we’ll provide you with notice of our actions.

Your organization is responsible for all reversals, chargebacks, claims, fees, fines, penalties and other liability incurred by us, any customer, or a third party caused by or arising out of your breach of this agreement, and/or your use of the Facepay Services. For example, if you receive a payment and the payment is disputed, you may be liable for the payment.

 

Holds and Limitations

What are holds and limitations?

Under certain circumstances, in order to protect Facepay, its partners, and the security and integrity of the network that uses the Facepay Services, Facepay may, in its sole discretion, take account-level or transaction-level actions.

Our decision about holds and limitations may be based on confidential criteria that are essential to our management of risk and the protection of Facepay, our customers and/or service providers. We may use proprietary fraud and risk modeling when assessing the risk associated with your Account. In addition, we may be restricted by regulation or a governmental authority from disclosing certain information to you about such decisions. We have no obligation to disclose the details of our risk management or security procedures to you.

Holds

A hold is an action that Facepay may take under certain circumstances either at the transaction level or the account level. When Facepay places a temporary hold on a transaction, the money is not available to the recipient. Facepay reviews many factors before placing a hold on a transaction, including: account tenure, transaction activity, and past disputes.

Holds based on Facepay’s risk decisions

We may place a hold on transactions involving your Account if, in our sole discretion, we believe that there may be a high level of risk associated with you, your Account or your transactions; or that placing such a hold is necessary to comply with state or federal regulatory requirements. We make decisions about whether to place a hold based on a number of factors, including information available to us from both internal sources and third parties.

Risk-based holds may remain in place for up to 180 days from the date the transaction was made. We may release the hold earlier under certain circumstances, but any earlier release is at our sole discretion.

Account Limitations

PLEASE NOTE THAT FACEPAY DOES NOT HOLD ANY CUSTOMER FUNDS. WE ACT AS A FACILITATOR BETWEEN YOUR CUSTOMERS BANK AND YOUR BANK FOR PAYMENTS. OUR PARTNER VENDOR DWOLLA FACILITATES THESE TRANSACTIONS ON YOUR, AND OUR, BEHALF.

Limitations are implemented to help protect Facepay and Facepay users when we notice restricted activities or activity that appears to us as unusual or suspicious. Limitations also help us collect information necessary for keeping your Account open.

There are several reasons why your Account could be limited, including:

• If we suspect someone could be using your organization’s Account without your knowledge, we’ll limit it for your protection and look into the unusual activity.
• In order to comply with the law.
• If we reasonably believe anyone in your organization has breached this agreement or violated the Acceptable Use Policy.

You will need to resolve any issues with your account before a limitation can be removed. Normally, this is done after you provide us with the information we request. However, if we reasonably believe a risk still exists after you have provided us that information, we may take action to protect us, our partners, our users, a third party, or you from reversals, fees, fines, penalties, legal and/or regulatory risks and any other liability.

 

Court Orders, Regulatory Requirements or Other Legal Process

If we are notified of a court order or other legal process (including garnishment or any equivalent process) affecting you, or if we otherwise believe we are required to do so in order to comply with applicable law or regulatory requirements, we may be required to take certain actions, including holding payments to your Account, placing a hold or limitation on your Account. We will decide, in our sole discretion, which action is required of us. We do not have an obligation to contest or appeal any court order or legal process involving you or your Account. When we implement a hold or limitation as a result of a court order, applicable law, regulatory requirement or other legal process, the hold or limitation may remain in place longer than 180 days.

 

Protection from Unauthorized Transactions

To protect yourself from unauthorized activity in your Account, you should regularly log into your Account and review your transaction history. We will notify you of each transaction by sending an email to your primary email address on file and recording each transaction in our system so that you can review it any time whenever you log into your Account. You should review these transactions to ensure that each transaction was authorized and accurately completed.

We will protect you from unauthorized activity in your Account. The following terms and conditions apply with respect to all Facepay Services. When the below protection applies, we will cover you for the full amount of the unauthorized activity as long as you cooperate with us and follow the procedures described below.

What is an Unauthorized Transaction

An “Unauthorized Transaction” occurs when Your Customer is charged from your Account without your authorization, which did not benefit you nor Your Customer. For example, if someone steals your password, uses the password to access your Account, and charges one of Your Customers a specific amount of money, an Unauthorized Transaction has occurred.

What is not considered an Unauthorized Transaction

The following are NOT considered Unauthorized Transactions:

• If you give someone access to your Account (by giving them your login information) and they use your Account without your knowledge or permission. You are responsible for transactions made in this situation.
• Invalidation and reversal of a payment as a result of the actions described under Refunds, Reversals and Chargebacks.

 

Reporting an Unauthorized Transaction

If you believe your Facepay login information has been lost or stolen, please contact Facepay customer service immediately.

Tell us AT ONCE if you believe that charge has been made without your permission using your login information or by other means, or if your Facepay-activated cell phone has been lost, stolen, or deactivated. You could lose all the transaction history and supplementary information in your Account. All transactions are subject to ACH clearing rules giving certain protections to you and your customers for error in the clearing process.

 

Error Resolution

What is an error

An “error” means the following:

• When an amount debited from Your Customer’s funding source is not identical to the amount you charged them, or when a transaction is incorrectly recorded in your Account.
• A transaction is missing from or not properly identified in your Account statement.
• We make a computational or mathematical error related to your Account.

What is not considered an error

The following are NOT considered errors:

• If you give someone access to your Account (by giving them your login information) and they use your Account without your knowledge or permission. You are responsible for transactions made in this situation.
• Invalidation and reversal of a payment as a result of the actions described under Refunds, Reversals and Chargebacks.
• You request a receipt or periodic statement documents that we are required to provide to you.
• Requests for duplicate documentation or other information for tax or other recordkeeping purposes.

In case of errors or questions about transactions in your account

Contact us through the “Contact” or “Contact Us” link at the bottom of each page of the Facepay website.

Notify us as soon as you can if you or Your Customers think the receipt of a transaction is wrong or if you need more information about a transaction. We must hear from you no later than 60 days after the problem or error has occurred. Filing a chargeback or reversal with your financial institution related to a Facepay payment does not constitute notice of an error to us. You must contact us directly to notify us of errors. When you notify us:

• Tell us your name and account number (if any).
• Describe the error or the charge you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information.
• Tell us the dollar amount of the suspected error.

If you tell us orally, we may require that you send us your complaint or question in writing within 10 Business Days.

We will determine whether an error occurred within 10 Business Days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question.

We will tell you the results within 3 Business Days after completing our investigation.

• If we determine that there was an error, we will promptly credit the full amount of the error into Your Customer’s funding source within 1 Business Day of our determination.
• If we decide that there was no error, we will send you a written explanation, and you may ask for copies of the documents that we used in our investigation.

 

Processing Errors

We will rectify any processing errors that we discover. If the error results in:

• You receiving less than the money amount that you charged Your Customer for, then we will credit the bank account connected to your Account for the difference between what you should have received and what you actually received.
• You receiving more than the money amount that you charged Your Customer for, then we will debit the bank account connected to your Account for the difference between what you actually received and what you should have received.
• If we do not complete a transaction on time or in the correct amount, then we will be responsible to you for your losses or damages directly caused by this failure, unless:
• through no fault of ours, you did not have enough available funds to complete the transaction;
• our system was not working properly and you knew about the breakdown when you started the transaction; or
• the error was due to extraordinary circumstances outside our control (such as fire, flood or loss of Internet connection), despite our reasonable precautions.

Processing errors are not:

• Delays that result from us applying holds or limitations.
• Delays based on reviews conducted on suspicious charges for payment.
• Your errors in making a transaction (for example, mistyping an amount of money that you are charging Your Customer).

You may request documentation or information regarding your Account or transaction to determine whether an unauthorized transaction, other errors, or a remittance transfer error exists by contacting us through the “Contact” or “Contact Us” link at the bottom of each page of the Facepay website.

 

Communications Between You and Us

If you provide us your cell phone number, you agree that we, may contact you at that number using autodialed or prerecorded message calls or text messages to: (i) service your Facepay branded accounts, (ii) investigate or prevent fraud, or (iii) collect a debt. We will not use autodialed or prerecorded message calls or texts to contact you for marketing purposes unless we receive your prior express written consent. We may share your cell phone number with service providers with whom we contract to assist us with the activities listed above, but we will not share your cell phone number with third parties for their own purposes without your consent.

We may communicate with you about your Account and the Facepay Services electronically as described in our Electronic Communications Delivery Policy.

Any electronic Communications will be considered to be received by you within 24 hours after the time we post it to our website or email it to you. Any Communications sent to you by postal mail will be considered to be received by you 3 Business Days after we send it.

You understand and agree that, to the extent permitted by law, we may, without further notice or warning, monitor or record telephone conversations you or anyone acting on your behalf has with us or our agents for quality control and training purposes or for our own protection. You acknowledge and understand that while your communications with us may be overheard, monitored, or recorded not all telephone lines or calls may be recorded by us, and we do not guarantee that recordings of any particular telephone calls will be retained or retrievable.

 

Electronic Communications Delivery Policy

This policy describes how Facepay communicates with you electronically, provides additional detail about the Communications we provide you, and sets out the hardware and software you need to receive these Communications.

Electronic delivery of communications

You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, "Communications") that we provide in connection with your Account ("Account") and your use of our services. Communications include, but are not limited to:

• agreements and policies you agree to (e.g., the Facepay Terms and Conditions and the Facepay Privacy Policy), including updates to these agreements or policies; transaction receipts or confirmations;
• information related to any other Account or transaction.

We will provide these Communications to you by posting them on the Facepay website and/or by emailing them to you at the primary email address listed in your Account Profile.

Email Compliance - Facepay has worked to achieve email compliance. You agree to comply with all elements of CAN-SPAM and safe sender email practices. This includes but is not limited to including unsubscribe links, your full contact information in all correspondence, and not releasing private and/or confidential information. You may only use email services for those customers with whom you have an existing business relationship and which have indicated that they accept correspondence from you. You may not attempt to spoof sender domains, send spam or other offending email practices. Because of carrier technologies or third party service providers, Facepay makes no expressed or implied warranty of individual message receipt. Facepay is not liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered.

Text message compliance - Facepay automates text message communications, but you are responsible for ensuring that the recipients of those communications have provided prior express written consent to receive them. The prior express written consent must identify that you may be sending text messages related to your goods and services using automated technology and that Your Customer affirmatively agrees to receive such messages. The prior express consent must include Your Customers’ written or electronic acceptance. By inputting our customers’ cell number into the Facepay system, you are directing Facepay to automatically send text message communications to such cell phone and certifying that the user of such cell phone consents to the receipt of those messages. Your organization is responsible for all liability for any failure to receive consent or failure to opt users out of the text message feature. Additionally, you may not attempt to spoof sender domains, send spam or other offending text message practices. Facepay makes no expressed or implied warranty of individual message receipt. Standard text message rates apply for all text message services. Facepay shall not be liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered. You shall be solely liable to comply with applicable laws and regulations within your jurisdiction in connection with telecommunication (e.g., email and text) messages that you send to Your Customers.

How to withdraw your consent

You may withdraw your consent to receive Communications electronically by writing to us or by contacting us via the “Contact” or "Contact Us" link at the bottom of each page of the Facepay website. If you fail to provide or if you withdraw your consent to receive Communications electronically, Facepay reserves the right to either deny your application for an Account, restrict or deactivate your Account, close your Account, or charge you additional fees for paper copies.

Requesting paper copies of electronic Communications

If, after you consent to receive Communications electronically, you would like a paper copy of a Communication we previously sent you, you may request a copy within 180 Days after the date we provided the Communication to you by contacting us as described above. We will send your paper copy to you by U.S. mail. In order for us to send you paper copies, you must have a current street address on file as your “Home” address in your Account Profile. If you request paper copies, you understand and agree that Facepay may charge you a Records Request Fee for each Communication. The Records Request Fee will not be charged if you request a Form 1099-K in paper form.

Updating your contact information

It is your responsibility to keep your primary email address up to date so that Facepay can communicate with you electronically. You understand and agree that if Facepay sends you an electronic Communication but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, Facepay will be deemed to have provided the Communication to you.

Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add Facepay to your email address book so that you will be able to receive the Communications we send to you.

You can update your primary email address or street address at any time by logging into the Facepay website. If your email address becomes invalid such that electronic Communications sent to you by Facepay are returned, Facepay may deem your Account to be inactive, and you will not be able to transact any activity using your Account until we receive a valid, working primary email address from you.

 

Our Rights

Our suspension and termination rights

We, in our sole discretion, reserve the right to suspend or terminate this user agreement, access to or use of our websites, software, systems (including any networks and servers used to provide any of the Facepay Services) operated by us or on our behalf or some or all of the Facepay Services for any reason and at any time upon notice to you and, upon termination of this user agreement, the payment to you of any unrestricted money being held for you.

Security interest

As security for the performance of your obligations under this user agreement, you grant to us a lien on, and security interest in and to funds held in our possession.

 

Amounts owed to us

We may debit amounts owed to us, in whole or in part, from your organization’s connected U.S. bank account later, either by you or from payments sent to you. While your organization owes amounts to us, we may:

• reverse payments you have sent;
• engage in collection and other efforts to recover such amounts from you, including, but not limited to, making attempts on your linked U.S. bank account to cover the amounts; and
• place a limitation or take other action on your Account as outlined under Restricted Activities and Holds.

If you have more than one Account, even if you have those accounts without our authorization and in breach of this agreement, we may set off amounts owed to us in one Account against money in or money sent to the U.S. bank connected to your other Account(s). If you continue using your Account when you have amounts owed to us, you authorize us to combine amounts owed to us with any debit or transaction sent from your account.

In addition to the above, if you have a past due amount owed to us, we may debit your bank account connected to your Account to pay any amounts that are past due.

IF YOU HAVE AMOUNTS PAST DUE, YOU SHOULD CONFIRM THAT YOUR U.S. BANK ACCOUNT CONTAINS FUNDS SUFFICIENT TO COVER ANY AMOUNTS PAST DUE. THIS WILL HELP YOU AVOID OVERDRAFT OR OTHER FEES YOUR FINANCIAL INSTITUTION MAY CHARGE.

Insolvency proceedings

If any proceeding by or against your organization is commenced under any provision of the United States Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law, we’ll be entitled to recover all reasonable costs or expenses (including reasonable legal fees and expenses) incurred in connection with the enforcement of this agreement.

Assumption of rights

If we invalidate and reverse a payment that Your Customer made to you (either at your initiative or otherwise), you agree that we assume Your Customers rights against you and third parties related to the payment, and may pursue those rights directly or on Your Customers behalf, in our discretion.

No waiver

Our failure to act with respect to a breach of any of your obligations under this user agreement by you or others does not waive our right to act with respect to subsequent or similar breaches.

 

Indemnification and Limitation of Liability

Indemnification

You must indemnify Facepay for actions related to your Account and your organization’s use of the Facepay Services. You agree to defend, indemnify and hold Facepay harmless from any claim or demand (including reasonable legal fees) made or incurred by any third party due to or arising out of your breach of this user agreement, your improper use of the Facepay Services, your violation of any law or the rights of a third party and/or the actions or inactions of any third party to whom you grant permissions to use your Account or access our websites, software, systems (including any networks and servers used to provide any of the Facepay Services) operated by us or on our behalf, or any of the Facepay Services on your behalf.

Limitation of liability

Facepay’s liability is limited with respect to your Account and your organization’s use of the Facepay Services. In no event shall Facepay be liable for lost profits or any special, incidental or consequential damages (including without limitation damages for loss of data or loss of business) arising out of or in connection with our websites, software, systems (including any networks and servers used to provide any of the Facepay Services) operated by us or on our behalf, any of the Facepay Services, or this user agreement (however arising, including negligence), unless and to the extent prohibited by law.

Our liability to you or any third parties in any circumstance is limited to the actual amount of direct damages. In addition, to the extent permitted by applicable law, Facepay is not liable, and your organization agrees not to hold Facepay responsible, for any damages or losses (including, but not limited to, loss of money, goodwill, or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from: (1) your organization’s use of, or your inability to use, our websites, software, systems (including any networks and servers used to provide any of the Facepay Services) operated by us or on our behalf, or any of the Facepay Services; (2) delays or disruptions in our websites, software, systems (including any networks and servers used to provide any of the Facepay Services) operated by us or on our behalf and any of the Facepay Services; (3) viruses or other malicious software obtained by accessing our websites, software, systems (including any networks and servers used to provide any of the Facepay Services) operated by us or on our behalf or any of the Facepay Services or any website or service linked to our websites, software or any of the Facepay Services; (4) glitches, bugs, errors, or inaccuracies of any kind in our websites, software, systems (including any networks and servers used to provide any of the Facepay Services) operated by us or on our behalf or any of the Facepay Services or in the information and graphics obtained from them; (5) the content, actions, or inactions of third parties; (6) a suspension or other action taken with respect to your Account; or (7) your organization’s need to modify your practices, content, or behavior, or your loss of or inability to do business, as a result of changes to this user agreement or our policies.

 

Disclaimer of Warranty and Release

No warranty

You represent and warrant on behalf of your organization that you have the power and authority to enter into this Agreement and you have not falsely identified yourself or your corporate entity, or provided any false information to gain access to the Service, and that all Bank Card and other billing information that you have provided is correct. THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS EXPLICITLY SET FORTH ABOVE, FACEPAY IS NOT PROVIDING ANY WARRANTIES AND REPRESENTATIONS REGARDING THE SERVICE, CONTENT OR TECHNOLOGY, AND FACEPAY AND ITS PARENT, LICENSORS, DISTRIBUTORS, PARTNERS AND AFFILIATES (COLLECTIVELY, THE “AFFILIATES”) DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SERVICE, CONTENT AND TECHNOLOGY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR FITNESS FOR ANY PARTICULAR PURPOSE.

FURTHER, FACEPAY, ITS PARENT, ANY THIRD PARTIES ACTING ON ITS BEHALF, AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THE SERVICE, OR FOR ANY OTHER PROBLEMS EXPERIENCED BY YOU DUE TO CAUSES BEYOND FACEPAY’S OR ITS PARENT, ANY THIRD PARTIES ACTING ON ITS BEHALF, OR ITS AFFILIATES’ CONTROL.

WE DO NOT HAVE ANY CONTROL OVER THE PRODUCTS OR SERVICES PROVIDED BY SELLERS WHO ACCEPT FACEPAY AS A PAYMENT METHOD. WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO ANY PART OF THE FACEPAY SERVICES, AND OPERATION OF OUR WEBSITES, SOFTWARE, OR SYSTEMS (INCLUDING ANY NETWORKS AND SERVERS USED TO PROVIDE ANY OF THE FACEPAY SERVICES) OPERATED BY US OR ON OUR BEHALF MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. WE WILL MAKE REASONABLE EFFORTS TO ENSURE THAT REQUESTS FOR ELECTRONIC DEBITS AND CREDITS INVOLVING BANK ACCOUNTS, DEBIT CARDS, CREDIT CARDS, AND CHECK ISSUANCES ARE PROCESSED IN A TIMELY MANNER BUT WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE AMOUNT OF TIME NEEDED TO COMPLETE PROCESSING BECAUSE THE FACEPAY SERVICES ARE DEPENDENT UPON MANY FACTORS OUTSIDE OF OUR CONTROL, SUCH AS DELAYS IN THE BANKING SYSTEM. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU.

FURTHER, FACEPAY EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO SEPARATE AGREEMENTS YOUR ORGANIZATION MAY MAKE WITH PATIENTS, CONSUMERS OR SITE USERS, AND YOU WILL LOOK SOLELY TO SUCH PERSONS AND/OR ENTITIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH AGREEMENTS. YOU WILL BE SOLELY RESPONSIBLE FOR THE PROFESSIONAL AND TECHNICAL SERVICES YOU PROVIDE. FACEPAY HAS NO LIABILITY FOR THE CONSEQUENCES TO YOU OR YOUR PATIENTS, CONSUMERS OR SITE USERS OF YOUR USE OF THE SERVICE.

FACEPAY OFFERS NO ASSURANCE THAT YOUR ORGANIZATION’S USE OF THE SERVICE UNDER THE TERMS OF THIS AGREEMENT WILL NOT VIOLATE ANY LAW OR REGULATION APPLICABLE TO YOU. FACEPAY AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTIES THAT THE SERVICE OR THE CONTENT ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU USE THE SERVICE OR THE CONTENT OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES.

IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT ANY DATA, INFORMATION, CONTENT OR MATERIALS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SERVICE IS NOT INTENDED AS A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT, TAX, LEGAL OR OTHER PROFESSIONALS. THE SERVICE DOES NOT PROVIDE TAX OR LEGAL ADVICE. YOU ARE RESPONSIBLE FOR OBTAINING SUCH ADVICE.

Your Release of Us

If you have a dispute with any other Account holder or Your Customer who is connected to your Account, you release us from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise, for example, California Civil Code § 1542) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

 

Agreement to Arbitrate

If a dispute arises between your organization and Facepay regarding the Facepay Services or otherwise, our goal is to learn about and address your concerns. If we are unable to do so to your satisfaction, we aim to provide you with a neutral and cost-effective means of resolving the dispute quickly. Disputes between you and Facepay regarding the Facepay Services may be reported to customer service.

ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THIS USER AGREEMENT MUST BE ASSERTED INDIVIDUALLY IN BINDING ARBITRATION CONDUCTED BY A SINGLE ARBITRATOR WITH EXPERIENCE IN CONSUMER ONLINE PAYMENT SERVICES DISPUTES ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE AAA SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES. The forum for arbitration shall be in the city closest to your organization’s residence having a federal district courthouse. The arbitrator shall not conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. To the extent allowed by applicable law, the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this user agreement including, but not limited to, any claim that all or any part of this user agreement is void or voidable. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

This user agreement and each of its parts evidence a transaction involving interstate commerce, and the United States Arbitration Act shall apply in all cases and govern the interpretation and enforcement of the arbitration rules and arbitration proceedings. There are only two exceptions to this agreement to arbitrate. First, if we reasonably believe that you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any court of competent jurisdiction. Second, any claim of $500 or less may, at the option of the claiming party, be resolved in small claims court, if the claim and the parties are within the jurisdiction of the small claims court. For these two exceptions, your organization agrees to submit to the personal jurisdiction of the courts for the purpose of litigating such claims or disputes.

Waiver of Right to Jury; Class Action Waiver

TO THE EXTENT ALLOWED BY LAW, YOU AGREE ON BEHALF OF YOUR ORGANIZATION TO IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY OR OTHER COURT TRIAL (OTHER THAN SMALL CLAIMS COURT) OR TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST US AND/OR RELATED THIRD PARTIES.

 

Intellectual Property

Our trademarks

"Facepay.io," "Facepay," and all logos related to the Facepay Services are either trademarks or registered trademarks of Facepay. You may not copy, imitate, modify or use them without our prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Facepay. You may not copy, imitate, modify or use them without our prior written consent. You may use HTML logos provided by us for the purpose of directing web traffic to the Facepay Services. You may not alter, modify or change these HTML logos in any way, use them in a manner that mischaracterizes Facepay or the Facepay Services or display them in any manner that implies Facepay’s sponsorship or endorsement. All right, title and interest in and to the Facepay websites, any content thereon, the Facepay Services, the technology related to the Facepay Services, and any and all technology and any content created or derived from any of the foregoing is the exclusive property of Facepay and its licensors.

License grants, generally

If you are using our software such as an API, developer’s toolkit or other software application, which may include software provided by or integrated with software, systems or services of our service providers, that you have downloaded or otherwise accessed through a web or mobile platform, then Facepay grants you a revocable, non-exclusive, non-sublicensable, non-transferable, royalty-free limited license to access and/or use our software in accordance with the documentation accompanying such software. This license grant applies to the software and all updates, upgrades, new versions and replacement software. You may not rent, lease or otherwise transfer your rights in the software to a third party. You must comply with the implementation, access and use requirements contained in all documentation accompanying the Facepay Services. If you do not comply with implementation, access and use requirements you will be liable for all resulting damages suffered by you, us, our partners, and third parties. We may update or discontinue any software upon notice to you. While we may have (1) integrated certain partner or third party materials and technology into any web or other application, including its software, and/or (2) accessed and used certain partner or third party materials and technology to facilitate providing you with the Facepay Services, you have not been granted and do not otherwise retain any rights in or to any such partner or third party materials. You agree not to modify, alter, tamper with, repair, copy, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the software, partner software, or any third party materials or technology, or otherwise create any derivative works from any of the software, our partner software, or third party materials or technology. You acknowledge that all rights, title and interest to our software are owned by Facepay; and integrated materials belonging to our partners or third parties in our software are owned by our partners or third party service providers. Any of our partner or other third party software application you use on the Facepay websites is subject to the license you agreed to with our partners and the third party that provides you with this software. You acknowledge that Facepay does not own, control nor have any responsibility or liability for any such partner or third party software application you elect to use on any of our websites, software and/or in connection with the Facepay Services.

Ownership of intellectual property rights and Customer Data

Your organization acknowledges and agrees that, subject to the license grants contained in this Agreement, Facepay, or its licensors, retains all right, title and interest, including all related intellectual property rights, in and to the Facepay technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations (collectively, “Feedback”) or other information provided by you or any other party relating to the Service. You retain all right, title and interest to any and all patient or customer data, including consumer review data, captured by the Facepay system (“Customer Data”) or provided to Facepay, subject to Facepay’s right to use such Customer Data to provide the Service to you. You grant Facepay the ability to publish your company’s data on Facepay Service, Facepay technology, Facepay content, and Facepay intellectual property including but not limited to your address, hours, and contact information. his Agreement is not a sale and does not convey to you any rights of ownership in or related to the Facepay Service, Facepay technology, Facepay Content, or Facepay intellectual property except for the limited licenses granted to you under this Agreement. Any and all software, algorithms, applications, source codes, structures, sequences, routines, sub-routines and related programming, engineering or technological matter developed or created by Facepay or its licensors (and all copyrights, patents, trademarks and other proprietary rights related thereto) shall remain the sole, exclusive and perpetual property of Facepay or its licensors. Facepay works with third parties to offer its customers additional products and services from time to time. Facepay collects anonymized, aggregate data in order to provide such additional product and services to you and you agree to permit us to use such anonymized, aggregate data.

The trademarks, trade names, service names or logos associated with the Service (collectively, the “Marks”) are trademarks of Facepay or its licensors, and no right or license is granted to use them. You hereby acknowledge Facepay or its licensors’ perpetual and exclusive ownership of and title to the Marks and the goodwill attaching thereto. You agree not to use or attempt to register any Mark that is confusingly or deceptively similar to the Marks.

Customer responsibility and passwords; Third-party software

Your organization is solely responsible for any and all activity occurring under your user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You also will choose a password and a username. You are entirely responsible for maintaining the confidentiality of your password and account. You agree to notify Facepay immediately of any unauthorized use of your account or any breach of security. Facepay will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You warrant and represent that: (i) the content to be transmitted by or on your behalf does not constitute SPAM; (ii) the content to be transmitted by or on your behalf is not illegal, threatening, hateful, vulgar, obscene, libelous or defamatory and does not and will not infringe upon any trademark, patent, copyright, trade secret or other proprietary, publicity or privacy right of any third party; and (iii) you have complied and will comply with all applicable laws and regulations respecting your execution and performance of this Agreement. If you are using any Content featuring a model or property with a subject that would be unflattering or unduly controversial to a reasonable person, you must accompany such use with a statement that indicates that (a) the Content is being used for illustrative purposes only and (b) any person depicted in the Content is a model.

The Facepay Service receives data from third-party software systems, which you will designate in the process of setting up the Facepay Service. If you elect to change, upgrade or materially alter the third-party software system from which Facepay receives data, Facepay does not guarantee that all Customer Data or Service functionality will be preserved. You are responsible for communicating any changes in data structure, management system, or hardware upgrades that may impact Facepay’s ability to receive and process Customer Data. In addition, you are responsible for providing Facepay with accurate instructions and information regarding the third party systems and databases with which the Service will interface, and you bear all responsibility for incomplete, inaccurate or otherwise faulty information regarding third party systems and databases belonging to you as conveyed to Facepay in connection with set up or maintenance of the Service.

License grant from you to Facepay; intellectual property warranties

We do not claim ownership of the content that you provide, upload, submit or send to us. When you provide content to us or post content using Facepay Services, you grant us (and parties that we work with) a non-exclusive, irrevocable, royalty-free, transferable, and worldwide license to use your content and associated intellectual property and publicity rights to help us improve, operate and promote our current services and develop new ones. We will not compensate you for any of your content. You acknowledge that our use of your content will not infringe any intellectual property or publicity rights. Further, you acknowledge and warrant that you own or otherwise control all of the rights of the content you provide, and you agree to waive your moral rights and promise not to assert such rights against us.

 

Miscellaneous

Assignment

You may not transfer or assign any rights or obligations you have under this user agreement without our prior written consent. We may transfer or assign this user agreement or any right or obligation under this user agreement at any time.

Consumer fraud warning

We’re always looking for ways to help keep you and Your Customers even more secure. So stay on the lookout for some of these common scams:

• Spoofing – a scammer sends forged or faked electronic documents or emails falsely claiming to be Facepay or coming from Facepay but asks you to send money outside your Account.
• Seller Scam: a scammer sends you a fraudulent payment for goods or services that you did not use your Account to charge them for.
• Accidental Payment: a scammer sends you a fraudulent payment, claims it was accidental, and asks that you return their money.

Always use common sense when sending money. If something sounds too good to be true, it probably is. Please let us know immediately if you believe someone is trying to scam or defraud you by writing to us or by contacting us via the “Contact” or "Contact Us" link at the bottom of each page of the Facepay website.

Dormant accounts

If no one in your organization logs in to your Account for two or more years, we may close your Account. Any unused Customer Invitations you had purchased from us with your Account will not be refunded. We will provide you with 30 Days' prior notice via email or text communications using the contact information you have in your Account.

Governing law

You agree that, except to the extent inconsistent with or preempted by federal law and except as otherwise stated in this user agreement, the laws of the State of California, without regard to principles of conflict of laws, will govern this user agreement and any claim or dispute that has arisen or may arise between you and Facepay regarding your use of the Facepay Services.

Identity authentication

You authorize us, directly or through third parties, to make any inquiries we consider necessary to verify your identity. This may include:

• asking you for further information, such as your date of birth, a social security or taxpayer identification number, your physical address and other information that will allow us to reasonably identify you;
• requiring you to take steps to confirm ownership of your email address, phone number or financial instruments;
• ordering a credit report from a credit reporting agency, or verifying your information against third party databases or through other sources; or
• requiring you to provide your driver’s license or other identifying documents.

Anti-money laundering and counter-terrorism financing laws may require that we verify the required identifying information if you use certain Facepay Services. We reserve the right to close, suspend, or limit access to your Account and/or the Facepay Services in the event that, after reasonable enquiries, we are unable to obtain information about you required to verify your identity.

Facepay is only a payment service provider

We act as a payment service provider only. We do not:

• Act as an escrow agent with respect to any money sent to you on Facepay that has not been transferred;
• Act as your agent or trustee;
• Enter into a partnership, joint venture, agency or employment relationship with you;
• Guarantee the identity of any user;
• Determine if you are liable for any taxes; or
• Unless otherwise expressly set out in this agreement, collect or pay any taxes that may arise from your use of our services./li>

Privacy

Protecting your privacy is very important to us. Please review our Privacy Policy in order to better understand our commitment to maintaining your privacy, as well as our use and disclosure of your information.

Third party providers

The Facepay product is a Software as a service (SaaS) application so it is available to smart mobile devices that can access the internet. Your use of the Facepay Services may be subject to separate agreements you may enter into with your mobile device operating system provider (e.g., Apple, Google or Microsoft®), your mobile device manufacturer (e.g., Apple, Samsung®), your mobile service carrier (e.g., AT&T® or Verizon®), and other parties involved in providing your mobile device service, which we collectively refer to as “Covered Third Parties.” You agree to comply with all applicable third-party terms of agreement when using the Facepay Services. We are not a party to those agreements and we have no responsibility for the products and services provided by third parties. You acknowledge and agree that this agreement is between you and Facepay, not with any Covered Third Party. You acknowledge and agree that we are solely responsible for the Facepay Services and for providing maintenance and support services for the Facepay Services.

Covered Third Parties have no warranty obligations whatsoever with respect to the Facepay Services and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Facepay Services to conform to any warranty provided by us, if any, will be our sole responsibility.

We, not any Covered Third Parties, are responsible for addressing any claims relating to the Facepay Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Facepay Services fail to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection, privacy, or similar legislation; and (iv) intellectual property claims.

If you are using the Facepay Services on an Apple device, you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that Apple will have the right (and will be deemed to have accepted the right) to enforce this agreement against you as a third party beneficiary. Such rights may also accrue to other handset manufacturers and operating systems which participate in the Facepay Services.

 

Your use of information; Data protection laws

If you receive information about another Facepay user or Customer connected to your Account, you must keep the information confidential and only use it in connection with the Facepay Services. You may not disclose or distribute any information about Facepay users to a third party or use the information for marketing purposes unless you receive that user’s express consent to do so. You may not send unsolicited emails to a Facepay customer or use the Facepay Services to collect payments for sending, or assist in sending, unsolicited emails to third parties.

The privacy and data protection laws that may apply include any associated regulations, regulatory requirements and codes of practice applicable to the provision of the services described in this agreement.

In complying with such laws, you will:

• implement and maintain all appropriate security measures for the processing of personal data; and
• not knowingly do anything or permit anything to be done which might lead to a breach of any privacy data protection laws by us.

 

Definitions

"Agreement" means this user agreement including all subsequent amendments.

"Account" means a Facepay Account.

"Business Day(s)" means Monday through Friday, excluding holidays when Facepay's offices are not considered open for business in the U.S. Holidays, which include New Year's Day (January 1), Martin Luther King, Jr.’s Birthday (the third Monday in January), George Washington’s Birthday (the third Monday in February), Memorial Day (the last Monday in May), Independence Day (July 4), Labor Day (the first Monday in September), Columbus Day (the second Monday in October), Veterans Day (November 11), Thanksgiving Day (the fourth Thursday in November) and Christmas Day (December 25). If a holiday falls on a Saturday, we observe the holiday on the prior Friday. If the holiday falls on a Sunday, we observe the holiday on the following Monday.

"Charge" means price asked for good or services.

"Chargeback" means a request that a buyer files directly with his or her debit or credit card company or debit or credit card issuing bank to invalidate a payment.

"Customer" or "Your Customers" refers to direct customers of your business, not of Facepay.

"Digital or virtual goods" means goods that are delivered and used in an electronic format.

"Days" means calendar days.

"Facepay Services" means all our products and services and any other features, technologies and/or functionalities offered by us on our website or through any other means.

"Merchant" and "Sellers" are used interchangeably and mean a User who is selling goods and/or services and using the Facepay Services to receive payment.

"Us", "we" or "our" refers to Facepay.

"You" or "your" means any person or entity using the Facepay Services on behalf of their organization.