These Business Wallet Terms and Conditions contain a limitation of liability clause (Section 7 below) and a mandatory arbitration clause (Section 10.5 below).
BUSINESS WALLET TERMS AND CONDITIONS
These BUSINESS WALLET TERMS AND CONDITIONS (“BW Terms and Conditions”) is made by and between SKRILL USA, INC., a Delaware corporation (“Skrill USA”), and the entity identified on the Application Form (“Merchant”). Each of Skrill USA and Merchant is a “Party” and, collectively, constitute the “Parties”.
A. Skrill USA is a provider of digital wallet, gateway and other online payment solutions and is a licensed money transmitter under the laws of various U.S. states. Please visit https://www.skrill.com/en-us/footer/statelicensing/ for more information regarding the state money transmission licenses maintained by Skrill USA.
B. Merchant has executed, on or around the date hereof, an Application Form and a merchant payment card agreement with, inter alios, Paysafe Payment Processing Solutions LLC (including any assigns or successors, the “ServiceProvider”), an Affiliate of Skrill USA, pursuant to which credit card processing services will be offered to Merchant (collectively, the “Card Processing Agreement”).
C. Merchant desires to receive settlement proceeds under the Card Processing Agreement into the Merchant Account, as defined below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements contained in these BW Terms and Conditions, the receipt and sufficiency of which is hereby acknowledged each of the Parties hereby agrees as follows:
“Affiliate” has the meaning ascribed thereto in the Card Processing Agreement.
“ApplicationForm” means the merchant application form completed by the Merchant for (i) credit card processing services from, inter alios, the Service Provider, and (ii) the Business Wallet Service.
“Bank” has the meaning set forth in Section 2.2 hereof.
“Bank Account” means an account at any bank or other financial institution in the United States designated by Merchant for purposes of accepting any transfer by Skrill USA of the Settlement Amount pursuant to Section 2.3 hereof, which Bank Account may be changed by Merchant upon not less than thirty (30) days written notice to Skrill USA.
“Business Day” means any day other than Saturdays, Sundays or any federal or state holidays in which banks in Texas or Florida are generally closed.
“Business Wallet Service” means a digital wallet service, as detailed herein, provided by Skrill USA under the terms of these BW Terms and Conditions.
“Card Brand” has the meaning set forth in the Card Processing Agreement.
“Card Brand Rules” has the meaning set forth in the Card Processing Agreement.
“Card Processing Agreement” has the meaning set forth in Recital B.
“Confidential Information” means all information, written or oral, furnished by one Party to the other, including financial information, techniques, processes, methodologies, schematics, ideas, analyses, performance information, user documentation, internal documentation, details of planned or current products or services, computer records or software, specifications, models, prototypes, compositions, samples or other information that is or may be either applicable to or related in any way to the business or affairs of such Party; provided, however that Confidential Information shall not include any information that: (i) is already known to the receiving Party free of any restriction at the time it is obtained; (ii) is subsequently learned by the receiving Party from an independent third party free of any restriction and without breach of these BW Terms and Conditions; (iii) becomes publicly available through no wrongful act of the receiving Party; or (iv) is independently developed by the receiving Party without reference to any Confidential Information of the other Party. Confidential Information of Skrill USA includes its Proprietary Information and the contents of these BW Terms and Conditions.
“Effective Date” means the date that the Service Provider or Skrill USA issues a merchant identifier to the Merchant, even if Skrill USA does not sign the Application Form or these BW Terms and Conditions.
“Merchant Account” means an online stored value account registered with Skrill USA in the name of Merchant.
“Person” means any individual, corporation, general or limited partnership, limited liability company, limited liability partnership, joint venture, estate, trust, association, organization, governmental body or other entity or body (including any such Person’s successors or assigns).
“Personal Information” means an individual’s first name or first initial and last name in combination with any one or more of the following data elements: social security number; driver’s license number (or state issued identification card); bank account, or credit or debit card number (in combination with a required security code, access code, or password that would permit access to any individual’s financial account).
“Proprietary Information” has the meaning set forth in Section 3.4 hereof.
“Regulatory Authority” means any national, regional, state or local government or governmental agency or subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions.
“Regulatory Requirements” means any law, statute, regulation, order, judgement, decision, recommendation, rule, policy or guideline passed or issued by any Regulatory Authority, or any Card Rule.
“Settlement Amount” means the amount attributable to the Merchant Account upon a Settlement Transaction, after deduction of applicable fees, costs and other amounts (including any Bank Account fees or charges).
“Service Provider” has the meaning set forth in Recital B above.
“Settlement Date” means, with respect to any given Settlement Amount, the date on which such Settlement Amount is transferred from the Merchant Account to Merchant’s Bank Account pursuant to Section 2.3 hereof.
“Settlement Transaction” has the meaning set forth in Section 2.3 hereof.
“Term” has the meaning set forth in Section 8.1 hereof.
“Transaction” means (i) any transaction between Merchant and a third party, using any Business Wallet Service; or (ii) any transaction between Merchant and Skrill USA, including any Settlement Transaction pursuant to Section 2.3 hereof, or (iii) any receipt of funds in relation to the Card Processing Agreement into the Merchant Account.
2. Business Wallet Services.
2.1 Registration. Upon approval of Merchant’s application by Skrill USA’s compliance and on-boarding teams, Skrill USA shall register Merchant as a participating Merchant in the Business Wallet Services, as evidenced by Skrill USA’s issuance of a merchant identifier to Merchant. Skrill USA retains the right to approve or reject any Merchant application in Skrill USA’s sole discretion.
2.2 Pooled Account. Merchant acknowledges and agrees that the Merchant Account is not an individual deposit account containing funds in Merchant’s name, but instead is a book-keeping entry only maintained by or on behalf of Skrill USA that reflects funds attributed to Merchant that are pooled with funds representing collective balances attributed to all Skrill USA merchants (including Merchant) in an omnibus, custodial or pooled account held by or on behalf of Skrill USA for the benefit of its customers at an institution that is insured by the Federal Deposit Insurance Corporation (“FDIC”) (currently Citizens Bank, N.A., the “Bank”) . The funds held at the Bank are intended to be eligible for pass through insurance. While there, the funds are insured up to $250,000 by the FDIC in the event the Bank fails if specific deposit insurance requirements are met. FDIC insurance does not protect Merchant’s funds in the event of Skrill USA’s failure or from the risk of theft or fraud. Additional information about deposit insurance is available on the FDIC’s website at www.fdic.gov/resources/deposit-insurance. The FDIC insurance maximum applies to the aggregate of all funds that Merchant has on deposit in other accounts with the Bank in a particular FDIC ownership category. The determination of whether Merchant is eligible for insurance coverage will be made by the FDIC at the time that the Bank holding a custodial account fails. Skrill USA will hold these funds as agent and custodian and each merchant is the ultimate beneficial owner of funds attributed to it. Merchant acknowledges that Skrill USA will hold such funds in accordance with and as permitted by applicable laws, and in exchange for the Business Wallet Service provided hereunder, Merchant hereby irrevocably assigns to Skrill USA any interest or other earnings resulting from such deposits, including interest or any other earnings on funds held in custodial accounts at the Bank, and subject to the provisions of these BW Terms and Conditions, acting reasonably, to withdraw and make use of any and all amounts from the funds reflected in the Merchant Account. Merchant’s right to receipt of funds in the Merchant Account is expressly subject to the limitations and restrictions set out in these BW Terms and Conditions, including any offsets.
2.3. Settlement. Settlement Transaction. At any time during the Term of these BW Terms and Conditions in which the Merchant Account maintains a positive balance, Merchant may access its Merchant Account to effect a transfer of the Settlement Amount from the Merchant Account to the Merchant’s Bank Account (each such transfer, a “Settlement Transaction”). Merchant acknowledges and agrees that Skrill USA’s ledger entries to the Merchant Account page will be deemed conclusive and binding for purposes of calculating the Settlement Amount unless Merchant provides written notice to Skrill USA objecting to any such ledger entry within thirty (30) days of the applicable Settlement Date. In the event Merchant so disputes any such ledger entry or the Settlement Amount within thirty (30) days of the applicable Settlement Date, Skrill USA shall endeavor to confirm or correct Skrill USA’s calculation as promptly as possible.
3. Merchant Obligations.
a) Service Fees. Skrill USA shall not charge a fee for the Business Wallet Services until it notifies the Merchant otherwise, When Skrill USA will introduce fees, it will provide the Merchant with thirty (30) days advance written notice, with such pricing to take effect not less than thirty (30) days following the date of such written notice. Merchant’s continued use of the Business Wallet Services following the thirty (30) days of said written notice will constitute Merchant’s acceptance of the fees. All fees and charges under this Section 3.1(a) are quoted exclusive of any applicable taxes.
b) Other. Unless otherwise indicated, all fees are quoted in U.S. Dollars. Any fee that becomes due and payable by Merchant hereunder shall be deducted by Skrill USA from the Merchant Account balance immediately after such fee becomes due.
3.2 Skrill USA Proprietary Information. Skrill USA or its licensors own all right, title and interest, including all copyright, trademark and other intellectual property rights, in and to the Business Wallet Services and all components used in the provision thereof, including all software, business methods, business processes, website designs, graphics, text, content, trade names, trade secrets and know-how, and all documentation in relation to the foregoing, used in the provision of the Business Wallet Services (collectively, “Proprietary Information”). Except as expressly stated herein, these BW Terms and Conditions does not transfer to Merchant any right, title or interest in or to the Business Wallet Services or the Proprietary Information. Merchant is prohibited from any use, reproduction, decompilation, reverse engineering, modification or distribution of any Proprietary Information that is not expressly authorized by these BW Terms and Conditions. Merchant may not sell, resell, assign or otherwise transfer rights to the Business Wallet Services or any Proprietary Information. All Proprietary Information may be used only in connection with the Business Wallet Services and must cease immediately upon termination of these BW Terms and Conditions for any or no reason.
3.3 Compliance; Acceptable Use Policy. Merchant shall perform its duties and obligations hereunder in compliance with all applicable Federal, state and local laws and all other applicable Regulatory Requirements (including all applicable Card Rules).
3.4 Security Requirements and Data Use.
a) Merchant agrees to comply with Skrill USA’s identification and security policies and procedures as updated and supplied to Merchant from time to time. It is Merchant’s responsibility to keep the Merchant Account log-in name, password and merchant key and other account credentials and information specific to the Merchant Account confidential and in a safe and secure place. This includes ensuring the ongoing security of the Merchant Account log-in details on any computer device used to access the Internet. Merchant is responsible for any usage of the Merchant Account whether or not authorized by Merchant.
b) Merchant agrees to comply with all privacy and security requirements under the Payment Card Industry Data Security Standards in the course of Merchant’s performance under these BW Terms and Conditions. Merchant shall be responsible for implementing adequate security policies and procedures as required to protect any confidential, proprietary or Personal Information stored or transmitted by Merchant, whether in tangible or electronic format, concerning any Person. These policies and procedures shall include, but not be limited to using Merchant’s best efforts to protect Merchant's computer systems and databases from unauthorized access or tampering and shall require that Merchant install and regularly update anti-virus, anti-spyware and anti-malware software on all computer systems, servers or networks utilized by Merchant in connection with the performance of its duties and obligations hereunder. Any information sent electronically by Merchant containing any confidential, proprietary or Personal Information must be encrypted (i.e., rendered unusable, unreadable, or indecipherable to an unauthorized Person through security technology or methodology generally accepted in the field of information security) or Merchant shall be responsible for any loss or damage that results from any unauthorized transmission or receipt of such confidential, proprietary or Personal Information.
c) n addition, Merchant agrees to report to Skrill USA any unauthorized access, use or disclosure of any Personal Information of Skrill USA or Merchant, in each such case as soon as possible but in no event later than three (3) Business Days following the date that Merchant becomes aware of such unauthorized access, use, or disclosure. Merchant shall provide to Skrill USA Merchant's assessment of the impact of such breach and the corrective measures proposed by Merchant to remedy such breach.
3.5 Fraud Detection and Assistance. Merchant agrees to cooperate with Skrill USA to investigate any suspected illegal or fraudulent activity.
3.6 Credit Report; Information Obligations.
a) Skrill USA reserves the right to make any inquiries it considers necessary at its sole discretion to verify Merchant’s identity. This may require collecting identity information with respect to Merchant’s ultimate beneficial owners’ (“UBO”), such as name, address, date of birth and social security number, as well as Merchant’s taxpayer identification number and other information that would allow Skrill USA to reasonably verify Merchant and its UBOs (“Merchant’s Information”). In addition, Skrill USA reserves the right to order a credit report or verify Merchant’s Information against third party databases or other sources reasonably selected by Skrill USA at its sole discretion. Merchant acknowledges and agrees that Skrill USA may limit, suspend or close Merchant’s Merchant Account in the event Skrill USA is unable to verify Merchant’s Information. Merchant will promptly notify Service Provider or Skrill USA if any information provided in the Application Form or Merchant’s Information is changed or is no longer accurate or complete.
b) Upon commencement of these BW Terms and Conditions and at any time thereafter:
i) for purposes of complying with Regulatory Requirements, Merchant shall provide Skrill USA with such information about its business, corporate structure and constitution, shareholders, partners, members, directors, key employees or, in the case of a trust, its beneficiaries. In particular, Merchant shall inform Service Provider or Skrill USA in writing of any material changes to its business model or the goods or services it sells or distributes if such change is or can reasonably expected to be relevant with regards to compliance with Regulatory Requirements. Merchant shall indemnify Skrill USA against all losses arising out of Merchant’s failure to notify Service Provider or Skrill USA of any such changes that are relevant for compliance with Regulatory Requirements applicable to Skrill USA or Merchant; and
ii) Merchant agrees to provide Service Provider or Skrill USA, upon request and at Merchant’s expense, with information about its financial and operational status, including Merchant’s most recent financial statements. Merchant also shall undertake, at its own expense, any further action reasonably requested by Skrill USA.
3.7 Website; Audit Rights.
a) Merchant may only add a new Merchant Website upon the written approval of Skrill USA.
b) During the Term of these BW Terms and Conditions and for a period of two (2) years thereafter, Merchant agrees, upon not less than five (5) Business Days’ notice from Skrill USA, to (x) make available to Skrill USA all records containing information relevant to Merchant’s performance of its obligations hereunder; and (y) during normal business hours, allow Skrill USA to inspect Merchant’s place of business to conduct financial, procedural and system audits, make copies of Merchant’s books, accounts, records and files pertaining to Merchant’s performance of its obligations hereunder, and to ensure Merchant’s compliance with its security obligations set forth in Section 3.4 of these BW Terms and Conditions.
4. Merchant Representations and Warranties.
The Merchant hereby represents and warrants to Skrill USA, as of the Effective Date and throughout the Term as follows:
4.1 Standing and Authority. Merchant is a company duly organized, validly existing and in good standing under the laws of the state of its organization or formation. Merchant has full power and authority to execute and deliver these BW Terms and Conditions (and any related documents), and has full legal capacity, power and authority to perform its obligations under these BW Terms and Conditions and to consummate the transactions contemplated herein.
4.2 Conflicts. Neither Merchant nor, if applicable, any of its employees or agents, is under any obligation in favor of any other Person that would interfere or conflict with Merchant’s use or offering of the Business Wallet Services or the performance of its obligations under these BW Terms and Conditions.
4.3 Consents. Merchant is not required to give any notice to, make any filing with, or obtain any waiver, authorization, consent, order or approval of any Person in connection with the execution and delivery of these BW Terms and Conditions. The execution, delivery and performance of these BW Terms and Conditions by Merchant will not: (a) violate any provision of any governing documents of Merchant; (b) conflict with, result in a breach of, or constitute a default (whether with or without the passage of time, the giving of notice, or both) or an event (whether alone or in conjunction with another event) creating rights of acceleration, termination, modification, notice, consent, severance, increase in benefits or cancellation or a loss of rights under, any contract to which Merchant is a beneficiary, party, subject or otherwise bound; or (c) violate any order, rule, regulation or law to which Merchant is subject to.
4.4 Legal Proceedings. There are no legal proceedings of any kind or nature pending or, to Merchant’s knowledge, threatened against Merchant or any of its Affiliates with respect to the subject matter of these BW Terms and Conditions, nor is Merchant a party to, or otherwise bound by, any order or other contract entered into that could reasonably be expected to adversely affect the transactions contemplated by these BW Terms and Conditions.
5.1 Each Party agrees that during the Term of these BW Terms and Conditions and for five (5) years thereafter, it will not, other than in connection with the performance of its obligations under these BW Terms and Conditions, use or disclose any Confidential Information of the other Party, either directly or indirectly, to any Person without the prior written consent of such other Party. In the event that either Party is requested or becomes legally compelled to disclose any Confidential Information, it will provide to the disclosing Party prompt written notice thereof so that such disclosing Party may seek a protective order or other appropriate remedy, and each Party agrees to reasonably cooperate with the other Party in such efforts. Upon termination of these BW Terms and Conditions, for any reason, each Party will promptly return to the other Party or destroy all Confidential Information in its possession, custody or control, without keeping any copies thereof, and upon written request of the disclosing Party, provide to the disclosing Party written certification stating that such Confidential Information has been returned or destroyed in accordance with this Section 5.1.
5.2 If receiving Party breaches, or threatens to breach, Section 5.1 hereof, in addition to any other rights disclosing Party may have, including a claim for damages, disclosing Party shall have the right to have the provisions of Section 5.1 hereof specifically enforced, and receiving Party’s breach or threatened breach enjoined, by any court of competent jurisdiction, without presentment of a bond (such requirement being expressly waived by the Parties), it being agreed that any breach or threatened breach of Section 5.1 hereof would cause irreparable harm to disclosing Party in that money damages would not provide an adequate remedy.
Merchant hereby agrees to defend, indemnify and hold harmless Skrill USA and its Affiliates, and each of the foregoing’s stockholders, officers, directors, partners, employees, agents, insurers, representatives, predecessors, successors and assigns, from and against all liabilities, losses, claims, damages, costs, and expenses (including reasonable attorneys’ fees) whenever arising or incurred that are caused or are alleged to have been caused, directly or indirectly, by or as a result of: (a) any breach of any representation, warranty or covenant of Merchant set forth herein; (b) any act of fraud, willful or intentional misconduct or gross negligence committed by Merchant, or any of its respective employees or agents; and (c) any and all claims, actions, suits, proceedings, investigations, demands, assessments and judgments related or incident to any of the foregoing.
7. LIMITATION OF LIABILITY.
7.1 THESE BW TERMS AND CONDITIONS ARE A SERVICE AGREEMENT AND, EXCEPT AS EXPRESSLY PROVIDED HEREIN, SKRILL USA EXPRESSLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO MERCHANT OR ANY OTHER PERSON, INCLUDING ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THESE BW TERMS AND CONDITIONS.
7.2 NEITHER SKRILL USA NOR ITS AFFILIATES, AGENTS OR SUBCONTRACTORS WILL BE LIABLE FOR ANY CLAIM, LOSS OR DAMAGE, INCLUDING ANY UNAUTHORIZED WITHDRAWALS FROM THE MERCHANT ACCOUNT, CAUSED IN WHOLE OR IN PART BY MERCHANT ERROR OR BY MERCHANT’S FAILURE TO COMPLY WITH ANY PROVISION OF THESE BW TERMS AND CONDITIONS.
7.3 NEITHER SKRILL USA NOR ITS AFFILIATES, AGENTS OR SUBCONTRACTORS SHALL BE LIABLE FOR ANY DELAY OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THESE BW TERMS AND CONDITIONS TO THE EXTENT THAT SUCH DELAY OR FAILURE IS CAUSED BY (A) ANY FAILURE, INTERRUPTION, INFILTRATION OR CORRUPTION OF ANY HARDWARE, SOFTWARE OR OTHER TELECOMMUNICATIONS OR DATA TRANSMISSION SYSTEM; (B) SKRILL USA’S BELIEF THAT THE TRANSACTION IS UNAUTHORIZED OR FRAUDULENT OR POSES A SECURITY RISK; (C) ANY INTERCEPTION OR SEIZURE COMPELLED BY LAW OR REGULATION; OR (D) ANY OTHER CIRCUMSTANCE BEYOND SKRILL USA’S REASONABLE CONTROL.
7.4 SKRILL USA’S CUMULATIVE LIABILITY FOR ANY LOSS OR DAMAGE, DIRECT OR INDIRECT, FOR ANY CAUSE ARISING OUT OF OR RELATED TO THESE BW TERMS AND CONDITIONS WITH RESPECT TO ANY CLAIMS BY MERCHANT SHALL NOT, UNDER ANY CIRCUMSTANCES, EXCEED ONE THOUSAND DOLLARS ($1000.00); EXCEPT SOLELY WITH RESPECT TO CLAIMS FOR RELEASE OF SETTLEMENT AMOUNTS, WHICH CLAIMS SHALL BE LIMITED TO PAYMENT OF THOSE SETTLEMENT AMOUNTS. SKRILL USA SHALL NOT BE LIABLE TO MERCHANT FOR ANY PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF SKRILL USA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Term and Termination.
8.1 Term. The term of these BW Terms and Conditions (the “Term”) shall commence on the Effective Date and shall continue until terminated by either Party. Merchant may terminate these BW Terms and Conditions by completing the “Business Wallet Merchant Account Edit Request Form”, which is available by contacting customer service at (800) 554-4777 or by email at email@example.com. Skrill USA shall provide Merchant with thirty (30) days’ written notice if Skrill USA wants to terminate these BW Terms and Conditions.
8.2 Suspension; Immediate Termination. Notwithstanding Section 8.1 hereof:
a) Skrill USA reserves the right to suspend the Merchant Account (or certain functionalities thereof) at any time if Skrill USA determines, in its sole discretion, that (i) any Transaction made to or from such Merchant Account violates these BW Terms and Conditions; or (ii) such Merchant Account has been used to facilitate improper, fraudulent or unlawful activities. Skrill USA will make reasonable efforts to inform Merchant of any such suspension unless Skrill USA is prohibited from doing so by applicable law or under an order from any court or other authority of competent jurisdiction;
b) Skrill USA may terminate these BW Terms and Conditions immediately upon written notice to Merchant if (i) a change in applicable Card Rules renders, in Skrill USA’s sole discretion, Skrill USA’s continued provision of the Business Wallet Services illegal or impracticable; or (ii) Skrill USA is requested by Bank or Regulatory Authority or by a Merchant’s acquiring bank or payment system operator, governmental department or agency or similar third party to terminate this BW Terms and Conditions or to cease provision of Business Wallet Services to Merchant;
c) Skrill USA may terminate these BW Terms and Conditions immediately upon written notice to Merchant if Merchant has (i) engaged in any improper, fraudulent or unlawful activity or has otherwise engaged in any intentional misconduct; (ii) materially altered its business; (iii) breached any representation of warranty contained herein; (iii) become involved in voluntary or involuntary bankruptcy or insolvency proceedings; (iv) engaged in activity that that creates a risk of harm or loss (including reputational risk) to Skrill USA; or (v) failed to timely make any payment to Skrill USA due hereunder; or
d) Skrill USA shall terminate these BW Terms and Conditions, without notice, if the Card Processing Agreement is terminated.
8.3 Effect of Termination. Upon termination of these BW Terms and Conditions:
a) Skrill USA will: (i) cancel any pending Transactions; and (ii) deduct from the Merchant Account all fees and other amounts owing under these BW Terms and Conditions;
b) Merchant shall withdraw any balance remaining in the Merchant Account as soon as possible. Once the Merchant Account has a zero balance, the Merchant Account will be closed;
c) Merchant shall cease using the Business Wallet Services; and
d) Provided the Card Processing Agreement is still in effect, any settlement proceeds thereunder will be settled and handled as set out in the Card Processing Agreement, as if these BW Terms and Conditions never existed.
8.4 Survival of Terms. The provisions of Sections 1, 3.2, 5, 6, 7, 8.3, 8.4 and 9 shall survive the termination of these BW Terms and Conditions.
9. Consent for Electronic Disclosures
9.1 In order for the Merchant Account to be activated, Skrill USA must have Merchant’s consent to provide access to required disclosures in electronic format. If Merchant does not consent to electronic disclosure of these documents, then Merchant shall not be able to participate in the Business Wallet Services. Merchant’s consent applies to all of the documents Skrill USA provides to Merchant electronically in connection with the Business Wallet Services, including periodic statements and notices.
9.2 Access to electronic disclosures and transactional history will be provided online at the Business Wallet portal page at merchant.paysafe.com/business-wallet/login. In order to view these disclosures, Merchant will need (i) a computer or mobile device with an internet connection; (ii) an up-to-date web browser that includes 128-bit encryption (e.g. Internet Explorer version 6 and above, Chrome version v220.127.116.11 and above, or Safari v3.2.1 and above) with cookies enabled; (iii) Adobe Acrobat Reader version 6.0 and above to open documents in .pdf format; and (iv) a valid email address (that matches the primary email address on file with Skrill USA).
9.3 By accepting these BW Terms and Conditions, Merchant consents to electronic access to documents, and Skrill USA is not required to provide Merchant with paper copies and may assess a charge to provide any such paper copies to Merchant. Merchant may obtain Merchant Account documents in paper form without charge by printing them directly. If Merchant decides to withdraw its consent for electronic disclosures, Merchant must notify Skrill USA at firstname.lastname@example.org. Such notice will constitute notice of termination of these BW Terms and Conditions and Section 8.3 herein shall apply.
10.1 Successors and Assigns. Skrill USA may assign these BW Terms and Conditions without Merchant’s knowledge or consent. Merchant may not assign these BW Terms and Conditions without the prior written consent of Skrill USA, nor shall Merchant assign any right to payments to which it may be entitled under these BW Terms and Conditions. For purposes of these BW Terms and Conditions, it shall be deemed an assignment by Merchant of these BW Terms and Conditions to effectuate any sale or transfer of the equity interests of Merchant’s business such that the equity holders listed in the Application Form collectively hold less than fifty percent (50%) of the equity interests of Merchant after such sale or transfer. These BW Terms and Conditions shall be binding on each Party’s successors and/or permitted assigns.
10.2 Agreements. These BW Terms and Conditions shall be read together with the Application Form and the Card Processing Agreement and shall constitute the entire agreement for the Business Wallet Services.
10.3 Amendment; Waiver. Subject to Section 3.1(a), Skrill USA may amend, revise, change or supplement these BW Terms and Conditions by giving Merchant not less than thirty (30) days’ prior written notice of any such amendment, revision, change or supplementation. Any amendment, revision, change or supplementation attributable to changes to the Card Brand Rules, Regulatory Requirements or requested by Bank, may be made on less than thirty (30) days’ notice. Except for the foregoing, these BW Terms and Conditions may be amended or modified only in a writing signed by Skrill USA and Merchant. No waiver by either Party at any time of any breach by the other Party of, or compliance with, any condition or provision of these BW Terms and Conditions to be performed by the other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at any time.
10.4 Choice of law and venue; time and procedure for assertion of claims
a) All disputes or controversies of any nature whatsoever (whether in contract, tort, or otherwise) arising out of, relating to, or in connection with (i) these BW Terms and Conditions, or (ii) the validity, scope, interpretation or enforceability of the choice of law and venue provisions of these BW Terms and Conditions, shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any jurisdiction’s choice or conflict of laws provisions or rules.
b) Without in any way limiting Section 9.5 below (Mandatory Arbitration), with respect to any action arising out of, relating to, or in connection with these BW Terms and Conditions, the Merchant hereby consents to the exclusive jurisdiction of, and venue in, the state courts of Montgomery County, Texas or the federal courts in the Southern District of Texas (Houston, Texas).
c) Each Party agrees to provide any other Party with prompt written notice of any claim, controversy or dispute arising under or related to these BW Terms and Conditions, and each Party agrees to engage in good faith discussions to resolve such claim, controversy, or dispute. If those discussions fail to resolve the matter promptly, upon any Party’s election, the applicable Parties will participate in non-binding mediation before a mutually agreed mediator. Any claim, controversy or dispute that is not resolved through the procedures set forth in this Section 10.4(c) within sixty (60) days following the initial notice (or such longer period as the Parties may agree upon) will be resolved pursuant to mandatory and binding arbitration pursuant to Section 10.4 of these BW Terms and Conditions.
d) No Party may bring a claim against any other Party more than two (2) years after the underlying cause of action first accrues.
10.5 MANDATORY ARBITRATION
(a) ANY DISPUTE OR CLAIM ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE BW TERMS AND CONDITIONS SHALL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. ARBITRATION DOES NOT PROCEED BEFORE A JURY AND MAY INVOLVE MORE LIMITED DISCOVERY THAN A COURT PROCEEDING. ANY ARBITRATION UNDER THESE BW TERMS AND CONDITIONS WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED and are hereby expressly waived by MERCHANT. Notwithstanding the foregoing, nothing in this Section 9.5(a) shall prohibit a Party from applying to a court of competent jurisdiction (as permitted in Section 10.5(b) above) for a temporary restraining order, preliminary injunction or other equitable relief, or to compel arbitration pursuant to this Section.
(b). Furthermore, this Section 10.5, and the obligation to arbitrate, will not apply to claims for misuse or infringement of a Party’s Proprietary Information or Confidential Information.
(C) MERCHANT ACKNOWLEDGES AND AGREES THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THESE BW TERMS AND CONDITIONS SHALL BE RESOLVED ON AN INDIVIDUAL BASIS ONLY AND SHALL NOT BE CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES. MERCHANT FURTHER AGREES TO WAIVE, AND HEREBY WAIVES, THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR TO LITIGATE OR ARBITRATE ON A CLASS-WIDE BASIS.