THE ECHECK PROCESSING USER AGREEMENT, for purposes of any new Merchant requesting an eCheck Account,is effective on the date the eCheck Account was approved for new Merchant (as per submitted and signed application) by EquiPay.Merchant will be hereinafter referred to asthe”Client”.EquiPay Corp, is a Delaware Corporation, with its principal place of business at 99 Wall Street, Suite 976, New York, NY 10005, (hereinafter, “EQP”)
USER AGREEMENT
By signing this Agreement,the Client hereby agrees to be legally bound by this User Agreement incorporates by reference the Privacy Policy, as amended from time-to-time. If this Agreement is not acceptable and Clientis unwilling to be bound by it, please do not use our Services. This User Agreement is also intended to be used in conjunction with any other agreement between Client and EQP. Any conflict between this agreement and such other agreement shall be resolved in favor of such other agreement, which shall control.
EquiPay Corp (referred to as “we” or “us” or “our”) is the owner and operator of this eCheckPortal(“Service”) and the materials and services provided thereon. By clicking on the “I Agree to the Terms” checkbox / submit button on the eCheck Portal, Client acknowledge that Client have been advised EQP is not a bank or financing institution of any kind and is not in the banking business.
COMMERCIALLY REASONABLE EFFORT AND NO GUARANTEE
Due to circumstances beyond the control of EQP, particularly delays in handling and posting Bill Payments by the Payee or financial institutions, some Bill Payment transactions may take longer to be credited to Client account. We will bear no responsibility for any late payment related charges due to the actions of others or outside of our direct control. Client agrees Services are being offered as a service only. Client acknowledges and agrees EQP will take commercially reasonable steps to ensure the validity of each check Cliententers into/through EQP Portal. We do not guarantee funds and if funds are not available when processed through Client financial institution it is Client sole responsibility to collect said funds. In addition, EQP does not guaranty once funds have been verified the status of Clientcustomer’s bank/financing account will not change prior to the withdrawal or depositing of funds. We do not process ACH transactions under this agreement. By clicking the “I Agree to the Terms” checkbox / submit button on EQP Portal and, thereafter, utilizing the Services, Client acknowledge and agree all checks are processed directly to Clientcustomer’s banking/financing institution by Demand Draft, Check 21, or X9 (Image Cash Letter) or sent to the address Client provided for Client’s customer, as directed by Client.
LICENSE, ACCESS AND INTERFERENCE
The contents of EQP Portal and the materials located thereon are protected by copyright, trademark, trade secret and other laws and are the sole and exclusive property of EQP. We grant Client a limited, non-exclusive, revocable, non-assignable, non-sub-licensable, non-transferable license to access and make use of the EQP Portal and the materials located thereon. This license does not include any resale, redistribution, replication, public display, republication or similar commercial use of this EQP Portal or its contents or the materials located thereon, except as expressly provided herein or any other agreement Client has entered into with us; any collection and use of any materials located on the EQP Portal, descriptions, or prices; any derivative use of this EQP Portal or its contents or the materials located thereon; any downloading or copying of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools. This EQP Portal or any portion of this EQP Portal or the materials located thereon, may not be reproduced, duplicated, copied, sold, resold, visited, modified, disclosed, publicly displayed, reverse engineered, disassembled, decompiled or otherwise exploited for any similar commercial or other purpose without our express written consent or as otherwise permitted in any other agreement with us. Client may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information or materials (including images, text, page layout, or form) of ours or of any third-party on the EQP Portal without our express written consent. Client may not use any meta tags or any other “hidden text” utilizing our name or trademarks without our express written consent. Any unauthorized use of the EQP Portal, materials located thereon, or services terminates the permission and license granted by us. Client are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of the EQP Portal so long as the link does not portray us or any products or services offered on the EQP Portal in a false, misleading, derogatory, or other manner which we deem offensive. Client may not post any material or information on the EQP Portal that is false, misleading, derogatory, defamatory, obscene, harassing, violative of the law or anyone’s rights or which we deem offensive. We have the right, but not the obligation to monitor Client’s use or other users’ postings or other use of the EQP Portal. Client may not use any logo or other proprietary graphic or trademark on the EQP Portal as part of the link without our express written permission. Client will not use any device, software or routine to interfere or attempt to interfere with the proper working of the EQP Portal. Client will not take any action which imposes an unreasonable or disproportionately large load on our infrastructure. We reserve all rights on the EQP Portal, Services and materials located thereon which are not expressly granted under this Agreement and no additional rights or licenses are granted to Client by implication, estoppel, and course of dealing or otherwise.
LINKS TO THIS SITE
Client agrees not to:
1. Create frames around the EQP Portal or use otherwise alter EQP Portal’s visual presentation.
2. Imply that We are endorsing Client or Client’s products and services or Client’s EQP Portal.
3. Imply an affiliation between Client and EQP without our prior written consent.
4. Present false or misleading impressions about our products and services or Client’s products and services.
5. Contain materials that may be interpreted as distasteful or offensive.
In establishing links, Client must not represent in any way, expressly or by implication, that Client have received the endorsement, sponsorship or support of the EQP Portal. Client agrees to remove any links Client have to the EQP Portal immediately upon our request.
LINKS TO THIRD PARTY EQP PORTALS
We are not responsible for the availability of any other site to which the EQP Portal links. We do not endorse or take responsibility for the content, advertising, products or other materials made available through any other site. Under no circumstances will we be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to Client in connection with Client’s use of, or reliance on, any content, goods or services available on any other site. Client should direct any concerns to that site’s administrator or Webmaster.
The EQP Portalis intended for use by people over the age of Seventeen (17). By clicking on the “I agree with the terms of service / agreement” checkbox / submit button on the EQP Portal and thereafter utilizing the Portal, Client represents that client are over the age of seventeen (17).
Information included in Client’s service profile, as identified in the application, including, but not limited to, Client’s user name, password, and payment account data, is used as part of the Service with participating billers that offer their own biller direct sites through the EQP Portal.
EXCLUSIONS OF WARRANTIES
The service and related documentation are provided “as is” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of Client ability and fitness for a particular purpose.
PASSWORD AND SECURITY
Clients agree not to give or make available Client’s password or other means to access Client’s account to any unauthorized individuals. If Client permit Authorized Users or other persons to use the Service or Client’s password or other means to access Client’s account, Client are responsible for any transactions they authorize or process. If Client believe Client’s password or other means to access Client’s account has been lost or stolen or that someone may attempt to use the Service without Client’s consent or has transferred money without Client’s permission, Client must notify us during customer service hours.
ERRORS AND QUESTIONS
In case of errors or questions about Client’s Service transactions, Client should as soon as possible notify us via options available on Support / Contact Us tab of the Portal or as advised from time to time.
If Client tells us verbally, we may require that Client send Client’s complaint in writing within ten (10) Business Days after Client’s verbal notification. We will tell Client the results of our investigation within ten (10) Business Days after we hear from Client and will correct any error promptly. However, if we require more time to confirm the nature of Client’s complaint or question, we reserve the right to take up to ninety (90) days to complete our investigation. If it is determined there was no error, we will mail Client a written explanation within three (3) Business Days after completion of our investigation. Client may ask for copies of documents used in our investigation.
PRIVACY POLICY
The Service’s policy with respect to use of Client’s information will be in accordance with EQP privacy statement which may be viewed on our EQP Portal. Client understands and agrees that Client or Client’s authorized agent or Client’s Customer will enter all data.Clients are responsible for all charges processed using Client’s EQP Portal account. By clicking on the “I Agree to the Terms checkbox / submit button on the EQP Portal, Client is accepting full legal responsibility for collecting and entering accurate checking and/or savings account data from Client’s customers and Client are certifying to EQP that Client has the right to process a check, demand draft or payment from Client’s customers’ account(s). Any invalid, fraudulent or missing data is Client’s responsibility and not EQP’s responsibility. By entering data, client represent, warrant and certify that Client has the legal right to process a check, payment or demand draft from such customer’s checking account.
SERVICE FEES AND ADDITIONAL CHARGES
By clicking on the “I agree with the terms of service” checkbox / submit button on the EQP Portal, Client agrees Client have read this Agreement, have been informed of and agree to the fees and expenses charged to Client for the use of Our EQP Portal. Client agrees EQP may make deposits to any bank account Client designate and that EQP may verify such accounts in advance (or at any time thereafter) as EQP deems necessary. Any fees associated with Client’s existing financial institutions accounts will continue to apply. Clients are responsible for any and all telephone access fees and/or internet service fees that may be assessed by Client’s telephone and/or internet service provider. When applicable, Client agree to pay any other applicable charges and authorize the Service to deduct such charges from Client’s designated bank account, credit card or debit card Client provide to EQP. All fees are charged in United States Currency. By clicking on the “I Agree to the Terms” checkbox / submit button on the EQP Portal, Client agrees that EQP may deduct its fees from Client’s bank/financing account or institution. Client agrees to pay EQP for any of EQP’s expenses in attempting to collect the amount of unpaid fees incurred by EQP. Client acknowledges that EQP may report any facts concerning the return of any items to any credit reporting agency. On Credit Card and Debit Card processing, Client will be charged through the provider we place Client with, unless Client uses EQP as a gateway only. If Client utilize EQP solely as a gateway to process transactions to Client’s current Credit Card Processor, we may charge a setup fee, monthly fee, and per transaction fees. These fees may be deducted from Client’s checking account on file.
EXCLUDED CLIENTS AND ACTIVITIES
It is our corporate policy not to knowingly provide Services for any person or organization whose use of the Services involves or pertains to any activity which is illegal under U.S. law or involves an activity or business with which we decline to accept and conduct business generally (“Excluded Activities”). These Excluded Activities include but are not limited to the following:
Internet Gaming / Gambling, Pornography /Sexually Oriented Business, Psychic or Horoscope Consultation Services
We may make exceptions from time-to-time as long as the Client is not involved in illegal activities. We may publish from time to time a more detailed and comprehensive list of businesses and activities which we include within the scope of Excluded Activities. We reserve the right to reject any proposed Client account, which we deem in our sole discretion could use our Services in conjunction with any Excluded Activity. If we discover after accepting a Client account the Client is utilizing our Services in conjunction with an Excluded Activity, we may immediately terminate or suspend the account without notice, without liability to us or our Resellers.
PLACEMENT
If Client applies for an account with us and does not provide all of the required proper documentation, or are declined due to underwriting qualifications, we have the right to place Client with another provider. Client will still be charged the Setup Fee and Monthly Fee associated with Client’s account type. Client understands the other processor may not process Client’s checks directly to Client’s bank and may mail Client’s processed checks to Client’s address on file. The other processor may also require a Credit or Debit Card in order to process Client’s checks and charges a different rate per check. Should we place Client with another provider Client agree to abide by the Terms and Conditions set forth in their agreement.
PROCESSING SERVICES
Definitions:
The following terms used shall have the meaning identified below:
“Depositor” shall mean the Client who deposits checks using the Services.
“Services“ shall mean the EQP Portal.
“Deposit Services Requirements”: All checks deposited electronically by the Depositor through use of the Services shall be subject to the following requirements:
1. The check will not be deposited through the Services more than once;
2. All checks will conform to the requirements of the Depositor’s deposit agreement with the Depositor’s financial institution;
3. All checks will conform to the requirements of Check 21 laws and regulations; and
4. The Depositor shall review and validate the accuracy and completeness of the check data being captured including but not limited to the amount of the check.
Depositor Liability: Depositors shall be solely liable and responsible for all damages, losses, expenses and claims arising from any of the following, which are not caused by EQP:
I. Duplication of images of deposited checks using the Services.
II. Alteration of images of deposited checks.
III. Inaccurate or incomplete data captured from the deposited checks.
IV. Deposit of checks on accounts with insufficient funds, counterfeit checks, fraudulent checks, or checks bearing unauthorized or forged endorsements.
V. Acts of fraud, negligence or willful misconduct committed by employees, agents or subcontractors of Depositors in depositing checks using the Services.
VI. Depositors shall defend, indemnify and hold harmless EQP from any such damages, losses, expenses and claims, which arise from the foregoing events not caused by EQP.
FINANCIAL COMPLIANCE ASSESSMENT (FCA)
All Client accounts that are required to be a part of our Financial Compliance Assessment, hereinafter referred to as FCA. Client understands and agrees that this is not a Reserve.
If Client is not informed in writing, either by regular mail or email, that client is a part of the FCA then this paragraph does not pertain to client.
We expressly maintain the right, and Client acknowledges, understands and agrees with EQP’s absolute right, to maintain an FCA against Client’s balance. In particular, EQP may charge a percentage of the total daily batch of checks processed by Client, which EQP will hold in the FCA for up to 365 days. We may use the FCA for any purpose, including but not limited to attorney’s fees, bank recovery fees, and losses. Upon release of funds held in the FCA, EQP shall apply the same as a credit towards charges on future transactions. EQP will not credit Client’s bank account.
If Client’s account with us goes dormant (does not process a single Debit / Check for 60-days) without prior written consent from us this FCA is considered forfeit and will not be returned to Client. If Client or EQP closes Client’s account for any reason this FCA is considered forfeit and will not be returned to Client.
ALTERATIONS AND AMENDMENTS
This Agreement, applicable fees and service charges may be altered or amended by the Service from time-to-time. In such event, the Service shall provide notice to Client and all other Users on the EQP Portal. Any use of the Service after the Service provides Client a notice of change will constitute Client’s agreement to such change(s). Further, the Service may, from time-to-time, revise or update the applications, services, and/or related material, which may render all such prior versions obsolete. Consequently, the Service reserves the right to terminate this Agreement as to all such prior versions of the applications, services, and/or related material and limit access to only the Service’s more recent revisions and updates. Client authorizes us to send or provide by electronic communication (including posting a notice to the EQP Portal) any notice, communication, amendment or replacement to the Agreement, or disclosure required to be provided orally or in writing to Client. Client agree to receive any electronic communication provided to Client and will not attempt to avoid receiving any such communication. Client is deemed to have received any electronic communication provided to Client when they are made available to Client.
ADDRESS OR BANKING CHANGES
It is Client’s sole responsibility to ensure the contact information in Client’s user profile is current and accurate. This includes, but is not limited to, name, address, phone number(s) and e-mail address(es). Changes can be made either within the application or by contacting customer service. Any changes in Client’s Account should also be made in accordance with the procedures outlined on the EQP Portal. Most changes made are effective immediately, with exception of banking and or credit / debit card information, which must be reviewed and approved. The Service is not responsible for any payment processing errors or fees incurred if Clientdoes not provide accurate account or contact information.
SERVICE TERMINATION, CANCELLATION, OR SUSPENSION
In the event Client wishes to cancel the Service,Client may do so in writing by sending an emailto Help@equipay.co providing a 30-day Notice.
Any payment(s) the Service has already earned or processed before the requested cancellation date will be completed by the Service. The Service may terminate or suspend Service to Client at any time. Neither termination nor suspension shall affect Client’s liability or obligations under this Agreement.
INFORMATION AUTHORIZATION
Client agrees the information Clientprovides to the Service can go through a verification process. Client agrees that the Service reserves the right to obtain financial information regarding Client’s Payment Account fromClient’s financial institution (for example, to resolve payment posting problems or for verification). In addition, Clientagrees the Service reserves the right to request a review of Client’s credit rating at its own expense through an authorized bureau. Client agree EQP may contact any customer Client enter into the system to verbally verify Client’s right to process a payment from their bank or financial account.
DISPUTES
In the event of a dispute regarding the Service, Client and the Service agree to resolve the dispute by looking to this Agreement. Client agrees that this Agreement is the complete and exclusive statement of the agreement between Client and EQP, which supersedes any proposal or prior agreement, oral or written, and any other communications between Client and EQP relating to the subject matter of this Agreement. If there is a conflict between what an employee of EQP or Customer Service department says and the Terms of this Agreement, the Terms of this Agreement will prevail. All other disputes, to the maximum extent permitted by applicable law, any controversy or claim between Client and EQP or our subsidiaries and affiliates, and our and their respective officers, directors and employees, arising out of or relating to this Agreement or Client’s use of the EQP Portal, shall be settled by binding arbitration, before a single arbitrator, in accordance with the commercial arbitration rules of JAMS, which shall administer the arbitration. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party, nor shall arbitration on a class action basis be permitted. The arbitration award shall be in writing and shall include findings of fact and conclusions of law. Judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either party may seek any interim or preliminary relief from a court of competent jurisdiction necessary to protect the rights or property of either party pending the completion of arbitration. Client agrees that the arbitration shall take place in the United States of America, State of Maryland, Ann Arundel County.
NO WAIVER
The Service shall not be deemed to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Service. No delay or omission on the part of the Service in exercising any rights or remedies shall operate as a waiver of such rights or remedies or any other rights or remedies. A waiver on any one occasion shall not be construed as a bar or waiver of any rights or remedies on future occasions.
ASSIGNMENT
Client may not assign this Agreement to any other party. The Service may assign this Agreement to any future, directly or indirectly, affiliated company. The Service may also assign or delegate certain of its rights and responsibilities under this Agreement to independent contractors or other third parties.
CAPTIONS
The captions of sections hereof are for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Agreement.
TAXES
Client is responsible for paying any taxes may be assessed or otherwise due in connection with any transactions or purchases Client makes through Us or the EQP Portal.
GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without regard to its conflicts of law’s provisions, except that in underlying transactions involving commerce, the enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. The parties further agree this Agreement shall be deemed to have been negotiated, entered into, executed and performed for all purposes within the State of Georgia. Either party’s failure to act with respect to a breach does not waive the non-breaching party’s right to act with respect to subsequent or similar breaches.
INDEMNITY
Client agrees to indemnify, defend and hold us, our subsidiaries and affiliates and each of our and their respective officers, directors, agents, employees, independent contractors and suppliers, harmless from any claim, demand, action, cost and expense, including reasonable legal fees, due to or arising out of the following events: (i) Client’s giving us any information which is inaccurate; (ii) Client’s breach of any warranty, representation or other obligation set forth in this Agreement; (iii) Client’s negligence or willful misconduct; (iv) Client’s violation of any law, regulation or right of any third party; (v) any dispute or action between Client and any third-party, including parties selling goods or services through this EQP Portal; and (vi) Client’s use of this EQP Portalor the products or services of us or any third-party, except for claims resulting solely from our negligence or willful misconduct.
RELEASE AND COVENANT NOT TO SUE
To the maximum extent permitted by applicable law, Client hereby releases, agrees and covenants not to sue us, our subsidiaries and affiliates, and our and their respective officers, directors, agents, employees, suppliers and independent contractors, from or in connection with any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with the EQP Portalor Client’s use of EQP Portal, other than for our willful misconduct or our failure to honor an express commitment posted on the EQP Portal(i.e., if we fail to deliver materials or information to Client, which Client paid for). If Client are a California resident, Client hereby waive California Civil Code Section 1542, which says: “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
SEVERABILITY
The invalidity of any portion of this Agreement will not affect the validity of any other provision and any such finding of invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. In the event that any provision of this Agreement is held to be invalid or unenforceable, the parties agree the remaining provisions will be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. It is expressly understood, however, the parties hereto intend each and every provision of this Agreement to be valid and enforceable and hereby knowingly waive all rights to object to any provision of this Agreement to the full extent permitted by law. Accordingly, if any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision(s) will, rather than be stricken in their entirety, be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
ENTIRE AGREEMENT
Except as otherwise provided, this User Agreement contains the entire agreement of the parties relating to its subject matter and supersedes any prior or contemporaneous agreements, negotiations, correspondence, understandings or communications, whether oral or written. If at any time Clientchooses not to accept the Terms of this User Agreement, Client will not have authorized access or authority to use the EQP Portal. This User Agreement applies to Client’s use of this EQP Portal or other sites that we may own or operate in the future, unless such sites provide otherwise.
CHOICE OF LANGUAGE
The parties hereto confirm it is their wish this Agreement as well as other documents relating hereto including notices, have been and shall be drawn up in the English language only.
Under no circumstances, including but not limited tonegligence, will we or any of our licensors, affiliates, employees be liable for any direct, indirect, special, incidental, consequential, or exemplary damages, including lost profits (even if advised of the possibility thereof) arising in any way out of the installation, use, or maintenance of the equipment, software, and/or the service. I have read and understand the foregoing agreement and agree to be bound by all its terms.
FEES
Client agrees to all eCheck fees as stated in the submitted and signed application. Any changes to fee schedule shall be approved in writing by both parties.
RESERVE
EQP shall have the right to assign and modify areserve Amount at any time upon providing the Client with written notice. EQP reserves the right to debit the Reserve Account for a period of Two Hundred and Ten (210) days after the termination of this agreement for the purpose of reclaiming funds owed to EQP for any fees or returns Incurred by the Client during the period of the Agreement or for losses EQP incurred due to Client transaction. All capitalized terms shall have the meaning set forth in the Agreement.
BILLING ACCOUNT
Billing account usedwill be bank account provided by Client in the submitted and signed application unless stated otherwise in writing.
PAYMENT SCHEDULE
1. Once the Payment is received, all information will be logged online in EQP’s echeck.money portal for Client’s access.
2. The address to mail all instruments including Bill Pay, Physical Checks, Money orders etc. is 8549 Wilshire Blvd PMB 5108, Beverly Hills, CA 90211.
3. EQP will send an Invoice & a Receipt to each customer whose payments are received.
4. Client must provide a customer service phone number to their Customers directly.
5. All returns, bank fees, wire fees and any other costs will be deducted from the deposits sent out.
6. All payments (eChecks) will be deposited in Client’s bank account as per schedule to be sent separately to Client. Any changes to this schedule shall be approved in writing by both parties.