MERCHANT TERMS and CONDITIONS
Version Date: 8/11/2021
These merchant terms and conditions ("Merchant Terms and Conditions", or "Terms") set forth the terms and conditions governing the provision of the Merchant Services (defined below) to you and your use of such Merchant Services. These Terms constitute a material and binding agreement between you, the Merchant ("Merchant", "you" or "your"), and Sionic Mobile Corporation ("Sionic Mobile", "Company", "we", "us" or "our"). Merchant and Sionic Mobile are each a "Party", and collectively, are the "Parties". The Terms are effective as of (a) the date of any applicable written agreement ("Agreement") between Merchant and authorized Sionic Mobile third-party service provider (e.g., authorized reseller of Sionic Mobile’s products and services) and/or Sionic Mobile that incorporates these Terms by reference or (b), for any Merchant without an applicable Agreement, the date of the Merchant’s electronic acceptance of these Terms (e.g., Merchant clicking "I Accept" button).
- "ACH" means Automated Clearing House, which is the electronic clearing and settlement system used for financial transactions by financial institutions within the Territory.
- "Content" means information, such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images.
- “Digital Commerce Services” means the purchase transactions of End Users using an application on their mobile device at Merchants point of sale.
- "End User" means a consumer that utilizes Sionic Mobile’s proprietary mobile application, or a third-party’s mobile application that incorporates Sionic Mobile’s SDK or container card to conduct a Transaction with a Merchant.
- "End User Reward or Cashback" means the amount of the Transaction awarded back to the End User, as an option and at the discretion of the Merchant.
- "Governing Authorities" means any government or political subdivision of a government, whether federal, state, or local or supranational, or any agency, authority, official or instrumentality of that government, and further includes as to that government, any court, tribunal, arbitration panel or other similar authority with the power and right to render enforceable and binding decisions concerning these Terms and the respective duties and obligations of the Parties.
- "Merchant Bank Account" means the Merchant-owned bank account designated in writing to Sionic Mobile to which Sionic Mobile and partners settle End User Transactions and applicable charges for Transactions.
- "Merchant Materials" means the Merchant’s data, graphics, information, trademarks, trade dress, trade getups, logos, artwork, graphics, audiovisual works, audio files, text, characters, personalities, and other artistic or literary material and content that the Merchant uploads or provides to Sionic Mobile.
- "Merchant Account" means the account established by Sionic Mobile to enable the Merchant’s access to the Digital Commerce Services.
- "Merchant Services" means the services that allow the Merchant to perform one or more of the following: (a) receive credit, debit, or stored value card payments using a secure website interface or mobile device application from an End User; (b) promote Merchant’s business to End Users and prospective End Users through mobile advertisements displayed in one or more mobile applications; (c) award End User Rewards or Cashback; and (d) accept End User Rewards redeemed by End Users as part of an End User’s Transaction.
- "Payment Device" means any device or method used for the purpose of obtaining credit or debiting a designated account including a credit card, debit card, and any other financial transaction device or method.
- "Payment Network" means any credit card association, electronic funds transfer network or electronic check association, governmental agency or authority and any other entity or association that issues or sponsors a Payment Device or operates a network on which a Payment Device is processed.
- "Payment Network Regulations" means, individually and collectively, as the context may dictate, all operating rules, regulations, guidelines, specifications and related or similar requirements of any Payment Network, including all amendments, changes and revisions made thereto from time to time.
- "Sionic Mobile Brand Features" means Sionic Mobile’s trade names, trademarks, logos, domain names, and other distinctive brand features.
- "SDK" means software development kit.
- "Territory" means the United States of America.
- "Transaction" means any sale of any goods or services provided to End Users by Merchants that is enabled or facilitated through the Merchant Services.
CONSENT TO ELECTRONIC EMAIL, TEXT MESSAGE, AND IN-APP COMMUNICATIONS.
Merchant agrees to electronic delivery via email and confirms your ability to access your Merchant Account information either online or via mobile device. Merchant also agrees that Merchant will promptly provide Sionic Mobile with an updated email address if it changes. Sionic Mobile and any Sionic Mobile third-party service provider may use the email address that Merchant provides to communicate with Merchant about the Merchant Services. Sionic Mobile may also use Merchant’s email to tell Merchant about Sionic Mobile products and services unless Merchant has asked not to receive marketing materials from Sionic Mobile. Sionic Mobile may also notify Merchant through in app communications via the Sionic Mobile merchant mobile application.
ELECTRONIC SIGNATURE DISCLOSURE AND CONSENT NOTICE.
Merchant agrees to the use of electronic documents and records in connection with Merchants registration for the Merchant Services and all future documents and records in connection with Merchant Services, including without limitation, this electronic signature and disclosure notice, and that this use satisfies any requirement that Sionic Mobile provides Merchant these documents and their content in writing. If a Merchant does not agree, do not accept these Terms. Merchant may withdraw, if not in conflict within an Agreement, Merchant’s consent to receive communications or do business electronically, but Sionic Mobile may terminate Merchant’s use of the Merchant Services, and any applicable written agreements, for cause if Merchant withdraws Merchant’s consent. Although this consent allows Merchant and Sionic Mobile to communicate electronically, Sionic Mobile may decide to provide communications to Merchant via paper or to require that certain communications from Merchant be on paper. To change Merchant’s contact information, Merchant should use the procedures specified in the online or mobile Merchant Account interface. Copies of these Terms are available for download and printing by using current web browser software, and Merchant acknowledges that Merchant can access, receive and retain all other electronic communications from Sionic Mobile in the various formats Sionic Mobile uses, and Merchant’s access to this page verifies that Merchant’s system and device meets the above receipt, access, and retention requirements. If Merchant would like paper copies of any electronic communications or documents from Sionic Mobile, Merchant may contact Sionic Mobile, but Sionic Mobile may charge you a fee for such paper copies. Merchant clicking on the "I accept" button indicates Merchant’s signature and Merchant’s acceptance of this disclosure and consent notice, if not already done so through an Agreement that incorporates these Terms by reference.
Unless otherwise agreed in writing with Sionic Mobile, Merchant agreement with Sionic Mobile will always include, at a minimum, these Terms as amended by Sionic Mobile. Merchant’s agreement with Sionic Mobile may also include the legal notices, terms and conditions that are included in the online management system (the "Additional Terms"). Where Additional Terms apply to the Merchant Services, these will be accessible for Merchant to read either within, or through Merchant’s use of the Merchant Services. If there is any conflict between the Additional Terms and the Terms, then the Additional Terms will control in relation to specific Merchant Services to which they apply.
The Terms, together with the Additional Terms which are now incorporated within and material part of the Terms, form a legally binding agreement between Merchant and Sionic Mobile. It is important that the Merchant reads the Terms carefully. In order to use the Merchant Services, Merchant must first accept the Terms. Merchant may not use the Merchant Services or participate in the Digital Commerce Services if Merchant does not accept the Terms.
By either signing an Agreement incorporating these Terms by reference or clicking the "I Accept" button, Merchant agrees to the Terms.
By clicking the "I Accept" button on behalf of the Merchant, you represent that (a) you are at least 18 years old, (b) you are currently employed by or are an authorized agent or representative of the Merchant you indicated in the registration process as the user of the Merchant Services, (c) you have the authority and legal ability to enter into these Terms on behalf of the Merchant in the event an Agreement has not been signed by the Parties or the Merchant and an authorized Sionic Mobile third-party service provider, (d) the Merchant agrees to be bound by all of the Terms, (e) the Merchant is duly authorized to do business in the Territory; and (f) the Merchant’s employees, officers, representatives, and other agents accessing the Merchant Services through your username are duly authorized (i) to access the Merchant Services and to (ii) legally bind Merchant to all Transactions conducted under your username.
THE MERCHANT SERVICES
- Sionic Mobile is not a bank nor a credit/debit card payment processor.
- Sionic Mobile is a data submitter, on behalf of the Merchant, of the Transaction’s information inclusive of the End User’s payment information to the Merchant’s designated financial institution or payment processor.
- Sionic Mobile complies with applicable payment card data security standards (e.g., PCI)
- Sionic Mobile provisions Merchants and End Users participating in the Digital Commerce Services to Sionic Mobile’s proprietary ION Commerce Engine (“ICE”) and Connected Commerce Engine ("CCE").
- Sionic Mobile manages the calculation, earning, and redemption of End User Rewards or Cashback on the ICE platform.
- Transactions are between the Merchant and the End User.
- Merchant and End User are responsible for their (a) obligations of the Transaction (e.g., providing agreed upon goods, services, and payment), (b) compliance with applicable Payment Network Regulations (e.g., Visa, MasterCard, American Express, and Discover), (c) compliance with applicable payment card data security standards and laws (e.g., PCI), and (d) compliance with financial institution real-time payments (RTP Network).
- Digital Commerce Services may appear in third-party mobile applications by way of (a) a third-party mobile application integrating the SDK, in whole or in part, or (b) a third-party self-branding ("white-labeling") Sionic Mobile’s proprietary mobile application.
- End User Rewards or Cashback earned and redeemed through the third-party mobile applications are labeled in accordance with the third-party mobile applications’ nomenclature.
- Sionic Mobile does not endorse or make any warrants or representations regarding any particular third-party mobile application or their respective products, services, or nomenclature.
- Merchant provides to Sionic Mobile, as reasonably requested by Sionic Mobile, sufficient identifying information for Sionic Mobile to (a) comply with anti-money laundering laws (such as the Bank Secrecy Act), government sanctions laws (such as the OFAC SDN List), and other applicable rules, regulations, and financial institution guidelines (including "Know Your Customer" requirements), (b) establish and confirm the Merchant’s true and accurate identity and applicable bank account information, and (c) establish and maintain the Merchant’s Merchant Account.
- Merchant authorizes and allows Sionic Mobile to share Merchant’s information with Payment Networks, Financial Institutions, Governing Authorities, and Sionic Mobile’s third-party vendors and third-party service providers to the extent necessary for Sionic Mobile to fulfill its obligations from (a) the Agreement, (b) these Terms, (c) applicable Federal, State, and local laws, (d) Payment Network Regulations, and (e) financial institution guidelines.
- Charges to Merchant for the Merchant Services are as indicated within the applicable Agreement either between (a) the Parties or (b) the Merchant and an authorized Sionic Mobile third-party service provider (e.g., authorized resellers of Sionic Mobile’s products and services).
- Merchant owes and pays, on a daily basis, the End User Reward or Cashback, which is a percentage amount, as determined by the Merchant.
- Merchant does not own or have rights to the End User Reward or Cashback earned by the End User.
- Merchant provides Sionic Mobile sufficient access to the Merchant Bank Account for the ACH or RTP Network settlement of (a) End User Rewards and (b) fees and other applicable charges due to Sionic Mobile and its third-party service providers pursuant to an Agreement and these Terms.
- Sionic Mobile debits and credits, on a daily basis or as commercially reasonable, the Merchant Bank Account in the amount of the End User Rewards (a) earned by the End User from the Transaction, (b) redeemed by the End User during the Transaction or (c) refunded to the End User Rewards as a result of the End User reversing, voiding, or otherwise cancelling the Transaction (e.g., return of purchased goods, chargeback).
- Sionic Mobile debits, on a daily basis or as commercially reasonable, the Merchant Bank Account in the amount the Merchants owes pursuant to the preceding 4.13.
- Sionic Mobile provides End User access to earned End User Rewards or Cashback upon successful completion of Transactions.
- Sionic Mobile refunds End User Rewards to the Merchant, and deducts from the End User’s Reward Account, for a Transaction as a result of the Merchant issuing a refund to the End User for the same Transaction, the refund was issued within the thirty (30) days of the transaction, and the refund was issued in accordance with the Merchant’s standard refund policy.
- ACH or RTP Network settlements generally occur each day except on bank holidays and any other day a bank may be closed for the entire day.
- ACH or RTP settlements and all other amounts due pursuant to these Terms are in U.S. Dollars.
- Sionic Mobile reserves the right to correct the balance of any Merchant Bank Account, End User Reward Account, or Transaction if Sionic Mobile believes that a clerical, billing, or accounting error has occurred. If Merchant has any questions regarding Merchant’s Transaction history or any correction, or if Merchant disputes any Transaction or correction that has been assessed against any of Merchant’s Accounts or Transactions, Merchant may dispute the change with Sionic Mobile within sixty (60) days of the occurrence of the Transaction or correction. Sionic Mobile reserves the right to ignore any disputes made more than sixty (60) days after the Transaction.
- If the Merchant Bank Account does not have a sufficient balance to pay amounts owed by the Merchant under these Terms, Sionic Mobile may pursue one or more of the following options: (a) demand and receive immediate payment for such amounts from the Merchant; and (b) pursue any remedies Sionic Mobile may have at law or in equity.
- Any amount Merchant fails to timely pay in accordance with these Terms shall be subject to interest that is the lesser of one and one-half percent (1.5%) per month or the highest rate permitted by applicable usury law, in each instance as determined and compounded daily from the date due until the date paid. Merchant shall also reimburse Sionic Mobile for all costs, fees, and expenses (including reasonable attorney fees and costs of actions) incurred by Sionic Mobile to collect any amount that is not paid when due.
- Merchants will not be sent statements of itemized Transactions regarding Merchant Services. An electronic Transaction history showing all Merchant Service Transactions will be available within the user interfaces.
- If Sionic Mobile is holding funds owed to Merchant arising from a Transaction processed through the Merchant Services, and Sionic Mobile is unable to transfer the funds to the Merchant Bank Account and is also not able to contact Merchant, applicable law may require Sionic Mobile to report these funds as unclaimed property. If this occurs, Sionic Mobile will try to contact Merchant using the last known email address shown in Sionic Mobile’s records, but if Sionic Mobile is unable to contact Merchant, Sionic Mobile may be required to deliver any such funds to the applicable state as unclaimed property. Sionic Mobile reserves the right to deduct a dormancy fee or other administrative charges from such unclaimed funds, as permitted by applicable law.
- In the event that Merchant’s Merchant Account is used in an unauthorized manner other than by Sionic Mobile, Sionic Mobile is not responsible for any losses Merchant may incur.
- Merchant may upload a certain amount of Merchant Materials for display as part of the Merchant Services. Subject to the Terms, Merchant hereby grants Sionic Mobile a non-exclusive, revocable, royalty-free license to distribute, transmit, provide access to, publicly perform and display, reproduce, perform, copy, modify, distribute, create derivative works of, install, compile, and prepare, and otherwise use the Merchant Materials in any manner necessary or appropriate to the delivery, performance, and promotion of the Merchant Services in the Territory.
- Sionic Mobile may push mobile application notifications to End Users’ mobile devices that are within a predefined proximity to the Merchant’s location. Merchant shall reasonably cooperate with Sionic Mobile, when such cooperation is requested by Sionic Mobile, in the development of notification content. Sionic Mobile hereby grants Merchant the right to market and promote its brand and goods and services to the End Users’ mobile devices, that are within a predefined proximity to the Merchant’s location, through mobile advertisements and Merchant-branded electronic push notifications. Nothing in these Terms shall prevent or limit the right of Sionic Mobile to authorize third parties to market or promote the Merchant Services.
COMMUNICATIONS AND CHANGES TO THE MERCHANT SERVICES AND THESE TERMS.
- Sionic Mobile is constantly innovating in order to provide the best possible experience for its merchants, users and partners. Sionic Mobile may apply updates from time to time that are designed to improve, enhance, and further develop the Merchant Services and may take the form of bug fixes, enhanced functions, and completely new versions. Merchant agrees to receive such updates and permit Sionic Mobile to deliver these to Merchant as part of Merchant’s use of the Merchant Services.
- Merchant acknowledges and agrees that the form and nature of the Merchant Services that Sionic Mobile provides may change from time to time without prior notice to Merchant.
- As part of Sionic Mobile’s continuing innovation, Merchant acknowledges and agrees that Sionic Mobile may stop, permanently or temporarily, providing the Merchant Services or any features of the Merchant Services to Merchant or to End Users generally at Sionic Mobile’s sole discretion and in accordance with any applicable Agreement, without prior notice to Merchant. In such an event, Sionic Mobile will comply with applicable law and its contractual obligations with respect to settlement of Transactions occurring prior to Sionic Mobile ceasing to provide the Merchant Services.
- Sionic Mobile may make changes to the Terms from time to time. When these changes are made, Sionic Mobile will publish a new or updated version of the Terms on Sionic Mobile’s websites and mobile applications.
- Merchant understands and agrees that if Merchant uses the Merchant Services after the date on which the Terms have been updated that Merchant’s continued use constitutes acceptance of the updated version of the Terms.
- Merchant agrees that Sionic Mobile may provide Merchant with notices, including those regarding changes to the Terms, by email or regular mail. If a Merchant needs to contact Sionic Mobile, email Sionic Mobile at email@example.com.
THIRD PARTY CONTENT AND INTERACTION.
- The Merchant Services may display advertisements and promotions, and Merchant agrees that Sionic Mobile may place such advertising in the Merchant Services. These advertisements may be targeted to the content of information stored as part of the Merchant Services, queries made through the Merchant Services or other information. The manner, mode and extent of advertising by Sionic Mobile through the Merchant Services are subject to change without notice to Merchant.
- The Merchant Services may include or permit Merchant to access Content. You understand that all Content is the sole responsibility of the person from which such Content originated.
- Sionic Mobile does not endorse companies or products to which it links, who advertise with Sionic Mobile, or who provide Content included in the Merchant Services. Merchant acknowledges and agrees that Sionic Mobile is not liable for any loss or damage which may be incurred by Merchant as a result of the availability of those external third-party sites or resources, or as a result of any reliance placed by Merchant on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such websites, advertisements or third parties.
- Any Transactions arising out of Merchant’s use of the Merchant Services shall be between Merchant and your End Users involved in the Transaction pursuant to the terms and conditions agreed upon by Merchant and the applicable End User. Merchant agrees to fulfill Merchant’s obligations with respect to any End User. Sionic Mobile is not a party to any Transaction between Merchant and any End User. Sionic Mobile has no liability for Transactions that Merchant may enter into with any End Users, including, without limitation, the conduct and ability of the End Users to pay or otherwise regarding the performance of the End User. Merchant agrees not to bring a claim against Sionic Mobile or name Sionic Mobile as a party of any kind in any arbitration or court action instituted between Merchant and any End User. If Sionic Mobile is named in such an arbitration or court action, Merchant shall cooperate in the removal of Sionic Mobile from such an arbitration or court action, including, without limitation, through petitioning the arbitrator or applicable court. In the event of any dispute arising between Merchant and an End User, Merchant hereby releases and hold Sionic Mobile harmless from any and all claims, actions, proceedings, damages and costs (including without limitation attorneys’ fees) that may arise in connection with any claims, actions, proceedings, losses, liabilities, and damages of any kind (including, without limitation, for actual, special, indirect, exemplary, incidental and consequential damages), known and unknown, disclosed and undisclosed, arising out of or in any way connected with such dispute regardless of whether Sionic Mobile was advised of the possibility or likelihood of such losses, damages or costs occurring, and whether such liability is based on contract, tort, warranty, negligence, strict liability, products liability or otherwise. Merchant acknowledges that Georgia law will govern this release, and Merchant further agrees to waive, release and relinquish all rights, benefits and protections under the provisions of any state law limiting or prohibiting a general release under Georgia law, or in the event a court does not enforce the applicable section of these terms, under applicable state law, including without limitation California Civil Code § 1542 and any similar statutes.
- Sionic Mobile grants Merchant a personal, non-exclusive, non-transferable, limited and revocable license to access the Merchant Services via a web browser or mobile application for the sole purpose of participating in the Digital Commerce Services. Merchant’s use of the Merchant Services other than for Merchant’s use in conjunction with Merchant’s business is strictly prohibited.
- Merchant acknowledges and agrees that (a) Sionic Mobile (or our licensors) owns all legal right, title and interest in and to the Merchant Services, including any intellectual property rights; (b) Merchant may not (and Merchant may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Merchant Services; (c) Merchant may not assign (or grant a sublicense of) Merchant rights to use Merchant Services, grant a security interest in or over Merchant’s rights to use the Merchant Services, or otherwise transfer any part of Merchant’s rights to use the Merchant Services; and (d) Merchant shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) of Sionic Mobile or of any of Sionic Mobile’s licensors, which may be affixed to or contained within the Merchant Services. The Merchant Services and all associated materials, content and documentation are protected by copyright, trademark, patent, trade secret, and other proprietary rights and may also have components that protect digital information.
- Content presented to Merchant as part of the Merchant Services, including, but not limited to, advertisements and sponsored Content, may be protected by intellectual property rights which are owned by the sponsors or advertisers who provide that Content to Sionic Mobile (or by other persons or companies on their behalf). Merchant may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless Merchant has been specifically told in a separate written agreement that Merchant may do so by Sionic Mobile or by the owners of that Content.
- If Merchant has been given an explicit right to Sionic Mobile Brand Features in a separate written agreement with Sionic Mobile, then Merchant agrees that Merchant’s use of such Sionic Mobile Brand Features shall be compliant with that agreement, any applicable provisions of these Terms, and our use guidelines as updated from time to time. These guidelines are available on our website.
- Except as set forth in the preceding subsection, nothing in the Terms gives Merchant a right to use any of Sionic Mobile trade names, trademarks, logos, domain names, and other distinctive brand features. The same applies to any third-party trademarks or logos, as they are the property of the third parties. Unless Merchant has been expressly authorized to do so in writing by Sionic Mobile, Merchant agrees that in using the Merchant Services, Merchant will not use any trademark, trade name, or logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
- Merchant grants Sionic Mobile a nonexclusive, worldwide license to display, perform, copy, modify, distribute and otherwise use Merchant’s Merchant Materials provided by Merchant to Sionic Mobile in these Terms, and permit any of our third-party service providers to do any of the foregoing on our behalf, as part of the Merchant Services and otherwise perform under these Terms. Sionic Mobile shall be responsible for the conduct of any of Sionic Mobile’s third-party service providers to whom Sionic Mobile provides Merchant’s Merchant Materials.
LIMITATION ON USE OF THE MERCHANT SERVICES.
- Merchant agrees to use the Merchant Services only for purposes that are permitted by (a) the Terms, and (b) any applicable law, rule or regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
- Merchant agrees that Merchant is solely responsible for (and that Sionic Mobile has no responsibility to Merchant or to any third party for) Merchant’s Merchant Materials and for the consequences of your actions (including any loss or damage which Sionic Mobile may suffer), including without limitation for ensuring the accuracy and completeness of Merchant’s Merchant Materials and that Merchant has the right to use and upload Merchant’s Merchant Materials. Merchant agrees not to upload to the Merchant Services or otherwise post, transmit, distribute, or disseminate through the Merchant Services any of Merchant’s Merchant Materials or any other material that: (a) violates any duty toward or rights of any person, including intellectual property rights and rights of publicity or privacy; (b) advertises products or services competitive with Sionic Mobile or Sionic Mobile’s partners’ products and services, as determined by Sionic Mobile at Sionic Mobile’s sole discretion; or (c) in Sionic Mobile’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Merchant Services, or which may expose Sionic Mobile, its affiliates, or users to harm or liability of any nature. In the event that Sionic Mobile determines that any of Merchant’s Merchant Materials or any other material violates (b) above, Merchant consents to Sionic Mobile removing the violating content.
- Merchant agrees that Merchant will not do any of the following through the Merchant Services: (a) defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as, but not limited to, rights of privacy, publicity and intellectual property) of others; (b) publish, distribute or disseminate any harmful, inappropriate, profane, vulgar, infringing, obscene, tortious, indecent, immoral or otherwise objectionable material or information; (c) transmit or upload any viruses, trojan horses, worms, time bombs, cancelbots, spyware, or any other harmful or deleterious programs; (d) interfere with or disrupt the Merchant Services or Sionic Mobile’s software, networks or servers; (e) harvest or otherwise collect information about others, including without limitation email addresses, without proper consent; (f) use the account, login identification, or password of another party to access the Merchant Services; (g) otherwise attempt to gain unauthorized access to the Merchant Services, other accounts, computer systems or networks connected to the Merchant Services, through password mining or any other means; (h) interfere with another’s use or enjoyment of the Merchant Services or any other service provided by Sionic Mobile; or, (i) otherwise violate these Terms or the terms of any third party, including without limitation those of any other merchant.
- Sionic Mobile has no obligation to monitor Merchant’s use of the Merchant Services. However, Sionic Mobile reserves the right at all times to monitor, review, retain and/or disclose Transaction information, Merchant’s Merchant Materials or any Content or other information for any reason, including without limitation as necessary to satisfy any applicable law, rule, regulation, legal process or governmental request. Merchant understands that by using the Merchant Services Merchant may be exposed to content that Merchant may find offensive, indecent or objectionable.
- Unless Merchant has agreed otherwise in writing with Sionic Mobile, Merchant agrees that Merchant is responsible for protecting and enforcing Merchant’s rights in Merchant’s Merchant Materials and that Sionic Mobile has no obligation to do so on Merchant’s behalf
- Merchant shall keep confidential and not disclose Merchant’s Merchant Account username, PIN, or passwords to third parties. Merchant is solely responsible for any and all activities that occur under Merchant’s Merchant Account including the selection and use of any usernames, PINs, or passwords as may be permitted or required to use the Merchant Services.
- Any material downloaded or otherwise obtained through the use of the Merchant Services is done at Merchant’s own discretion and risk, and Merchant is solely responsible for any damage to Merchant’s computer system or other device or loss of data that results from the download of any such material.
- The Merchant Services are operated from third-party facilities (e.g., cloud-based) in the United States, and we make no representation that the Merchant Services are appropriate, available or legal for use in other locations. Merchant accesses the Merchant Services from outside the United States at Merchant’s own risk. Merchant represents Merchant is not prohibited by the laws of the United States or any other country from using the Merchant Services.
PRIVACY AND PERSONAL INFORMATION.
Sionic Mobile may at any time, and without liability, terminate or suspend Merchant’s use of the Merchant Services for any reason or no reason, including, without limitation, in any of the following circumstances:
- Merchant provides inaccurate, untrue, or incomplete information, or has failed to comply with the Merchant Account registration requirements, or the requirements of Exhibit A: Prohibited Businesses, Merchant Categories and Transaction types, or Exhibit B: Merchant Payment Processing Instructions and Guidelines;
- Merchant breaches any provision of the Terms or acts in a manner which clearly shows that Merchant does not intend to, or is unable to comply with, the Terms; or
- Sionic Mobile is required to do so by law (for example, where the provision of the Merchant Services to Merchant is unlawful) or in order to address any fraud or security threats or issues that may affect the Merchant Services;
- The partner with whom Sionic Mobile offers the Merchant Services to Merchant (e.g., Sionic Mobile’s third-party token and payment gateway partner) has terminated its relationship with Sionic Mobile or ceased to offer its service to Merchant;
- Sionic Mobile no longer provides the Merchant Services to merchants in the country in which Merchant is doing business or from which Merchant uses the Merchant Services; or,
- The provision of the Merchant Services to Merchant by Sionic Mobile is, in Sionic Mobile’s sole opinion, no longer commercially viable.
- Merchant may terminate Merchant’s use of the Merchant Services in accordance with these Terms and Agreement.
- Merchant acknowledges and agrees that if Merchant’s use of the Merchant Services or access to Merchant’s Merchant Account is suspended or terminated for any reason, Merchant may be prevented from accessing Merchant’s Merchant Account details or any files, data or other content that is contained in Merchant’s Merchant Account. Upon termination, Merchant may no longer use the Merchant Services. Termination does not relieve Merchant of any obligations Merchant has to fulfill Merchant’s outstanding obligations to End Users, Sionic Mobile or other third parties.
- Upon termination, Sections 2, 5, 6, 7.2, 7.3, 7.4, 7.5, 8, 9, and 11 – 17 will survive in accordance with their terms.
- Merchant shall defend, indemnify and hold harmless Sionic Mobile and its parent, subsidiaries and affiliates, and their officers, directors, employees, licensors, successors and assigns from and against any and all claims, lawsuits, causes of action, damages, costs, liabilities, fines, penalties, expenses and attorney fees that result from or arise out of: (a) Merchant’s use or misuse of the Merchant Services; (b) Merchant’s violation of the Terms; (c) Merchant’s Transactions with any End User or any disputes arising therefrom; (d) any of Merchant’s Merchant Materials, including without limitation that Merchant’s Merchant Materials infringe any third party’s rights or violate any law; or (e) Merchant’s actions or inactions, including without limitation any negligence, willful misconduct or violation of law.
EXCLUSION OF WARRANTIES.
- Merchant expressly understands and agrees that Merchant’s use of the Merchant Services is at Merchant’s sole risk and that the Merchant Services are provided "as is" and "as available." In particular, Sionic Mobile, its subsidiaries and affiliates, and its licensors do not represent or warrant to Merchant that: (a) Merchant’s use of the Merchant Services will meet Merchant’s requirements; (b) Merchant’s use of the Merchant Services will be uninterrupted, timely, secure or free from error; (c) any information obtained by Merchant as a result of Merchant’s use of the Merchant Services will be accurate or reliable; and (d) defects in the operation or functionality of Sionic Mobile’s mobile application provided to either Merchant or End Users as part of the Merchant Services will be corrected.
- No advice or information, whether oral or written, obtained by Merchant from Sionic Mobile or through or from the Merchant Services shall create any warranty not expressly stated in these Terms. Sionic Mobile further expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose, non-infringement, system integration, quiet enjoyment, and data accuracy. Certain jurisdictions may not allow exclusions of implied warranties, and you may have additional rights in certain jurisdictions, so the above disclaimers and exclusions do not apply solely to the extent prohibited by the laws of such jurisdictions.
LIMITATION OF LIABILITY.
Merchant expressly understands and agrees that Sionic Mobile, its subsidiaries and affiliates, and its licensors shall not be liable to Merchant for:
- Any indirect, incidental, special consequential or exemplary damages that may be incurred by Merchant, however caused and under any theory of liability. This shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss; or
- Any loss or damage which may be incurred by Merchant as a result of: (a) any reliance placed by Merchant on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between Merchant and any advertiser, sponsor or End User; (b) any changes which we may make to the Merchant Services, or for any permanent or temporary cessation in the provision of the Merchant Services (or any features within the Merchant Services); (c) the deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through Merchant’s use of the Merchant Services; (d) Merchant’s failure to provide Sionic Mobile with accurate Merchant Account information; and (e) Merchant’s failure to keep Merchant’s password or Merchant Account details secure and confidential.
- Sionic Mobile’s maximum cumulative liability to Merchant with respect to the Merchant Services or these Terms, regardless of the form of action, is limited to the fees owed and paid to Sionic Mobile in the one (1) month period immediately before the date Merchant first made the claim against Sionic Mobile.
- The limitations on Sionic Mobile liability above shall apply whether or not Sionic Mobile was advised of or should have been aware of the possibility of any such losses arising and notwithstanding the failure of essential purpose of any limited remedy. The limitations in this Section 13 do not apply if and only to the extent that applicable law prevents the application of such limitations.
- It is Sionic Mobile’s policy to respect the intellectual property of others. If Merchant believes that Content posted through the Merchant Services constitutes copyright infringement, please contact Sionic Mobile at the below contact information and provide the following: (a) an electronic or physical signature of the person authorized to act on the part of the rights holder; (b) a description of the work that Merchant claims has been infringed; (c) the location within the Merchant Services of the Content that is alleged to infringe; (d) Merchant’s name, address, telephone number and email address; (e) a statement containing Merchant’s good faith belief; and (f) a statement made under penalty of perjury that the information in Merchant’s notice is accurate and that Merchant is the owner or authorized to act upon the owner’s behalf. Sionic Mobile may forward Merchant’s notice on to the alleged infringer.
- Sionic Mobile Corporation, 1230 Peachtree Street NE, Suite 3700, Atlanta, GA 30309
- If Merchant’s Merchant Materials have been removed or disabled, Merchant may send Sionic Mobile a counter notice to the address listed above in accordance with 17 U.S.C. § 512(g)(3). Sionic Mobile may forward this counter-notice to the person claiming the infringement. Sionic Mobile will then take action accordingly.
DISPUTE RESOLUTION AND BINDING ARBITRATION.
- Merchant agrees that Merchant and Sionic Mobile shall settle all disputes, claims and causes of action related to the Merchant Services or these Terms ("Claim") by binding arbitration in Atlanta, Georgia. The American Arbitration Association ("AAA") will conduct the arbitration in accordance with the AAA’s Commercial Arbitration Rules (available at www.adr.org). Merchant agrees that the Federal Arbitration Act applies, and all disputes as to the enforceability of this provision will be decided in accordance with that Act. Each party is responsible for its own attorney’s fees and other costs with respect to any arbitration unless an arbitrator awards otherwise. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction.
- Merchant agrees that Merchant may only bring a claim in your individual capacity and not as a class member or on behalf of any purported class, representative or private attorney general proceeding. Class actions, class arbitrations, private attorney general proceedings and consolidation with other arbitrations are not permitted, and Merchant hereby waives Merchant’s right to have any claim decided by any of those methods or to participate in any class action or class arbitration regarding a claim.
- If any provision of this Section 15 is found to be unenforceable, it will be severed and the other arbitration provisions will be enforced (but in no case will there be class action or class arbitration).
- The Terms, Merchant’s relationship with Sionic Mobile under these Terms, and any related disputes are governed by the laws of the State of Georgia without regard to its conflict of laws provisions. If, for whatever reason, any Claim is not resolved pursuant to Section 15, then Merchant and Sionic Mobile agree to submit to the exclusive jurisdiction and venue of the federal or state courts located within Fulton County, Georgia.
Merchant may not assign, novate, delegate, or otherwise transfer these Terms or Merchant’s rights or obligations without Sionic Mobile’s prior written consent. The Terms constitute the entire legal agreement between you and Sionic Mobile regarding the subject matter of these Terms and supersede all prior or contemporaneous agreements, negotiations, representations and proposals with respect to the subject matter of these Terms. No failure or delay by Sionic Mobile to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy. Sionic Mobile’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. Merchant and Sionic Mobile are independent contractors, and nothing in these Terms constitutes a partnership between the parties or designates one party as the agent of the other. If any provision of these Terms is declared invalid, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of these Terms will continue in full force and effect. If any provision of these Terms requires interpretation, these Terms are not to be more strictly construed against one party than the other. Merchant’s signature or agreement via electronic process or method shall have the same force and effect as an original signature hereto.
Prohibited Businesses, Merchant Categories and Transaction Types.
Prohibited Businesses and Business Activities
- Adult-oriented products or services (of any media type, including Internet, telephone, printed material, etc.)
- Buyers clubs / Membership clubs
- Collection agencies engaged in the collection of Uncollectible Debt (as defined by the Payment Brands)
- Bankruptcy attorneys
- Credit repair agencies
- Sports forecasting or odds making
- Credit counseling or credit repair services
- Credit protection / Identity theft protection
- Direct marketing—subscription merchants
- Infomercial merchants
- Internet/MOTO pharmacies
- Internet/MOTO pharmacy referral sites
- Internet/MOTO Firearm or Weapon Sales
- Internet/MOTO Tobacco Sales
- Drug Paraphernalia
- Occult Materials
- Multi-level marketing businesses
- Inbound telemarketers
- Outbound telemarketers
- Prepaid phone cards
- Prepaid phone services
- Rebate-based businesses
- "Up-Sell" merchants
- Bill payments
- Escort services
- Gambling or betting, including lottery tickets, raffles, casino gaming chips, off-track betting, and wagers at race tracks
- Financial Institutions — Manual Cash Disbursements
- Financial Institutions — Automated Cash Disbursements
- Financial Institutions — Merchandise and Services
- Non-Financial Institutions — Money Orders, Foreign Currency, etc.
- Wire Transfer Money Orders
- High-Risk Merchants
- High-Risk Telemarketing Merchants
- Any business model heavily reliant upon or solely or primarily based on any guaranteed "rebate", "refund", or "prize" associated with the sale of products or services
Prohibited Merchant Categories
- Merchants domiciled, residing, or having a principal place of business outside of the U.S.
- Merchants engaged in any illegal activity, or any activity reasonably likely to create notoriety, cause harm or damage to the reputation of Sionic Mobile, Member or any Payment Brands
- Merchants listed on the VISA Terminated Merchant File, MasterCard MATCH, or any similar Payment Brand list
Prohibited Transaction Types
- Account Funding Transactions
- Dynamic Currency Conversion
- Quasi-Cash Transactions
- Purchase of a Scrip
Merchant Payment Processing Instructions and Guidelines
When Merchant’s End Users pay Merchant through Sionic Mobile’s Digital Commerce Services, Merchant may be the recipient of a Card funded payment or bank account funded payment. The organizations that operate these Card systems (such as Visa and MasterCard; collectively, the "Payment Brands") and bank-to-bank transfer systems (such a The Clearing House) require that Merchant (a) enter into a direct contractual relationship with an entity that is a member of the Payment Brand, and (b) agree to comply with all applicable Payment Brand Rules and Security Standards as they pertain to Transactions Merchant submits through payment processing service providers.
Sionic Mobile is not a payment processor. Sionic Mobile is a data submitter, on behalf of the Merchant, of the Transaction’s information inclusive of the End User’s payment information to the appropriate designated payment processor. Merchant is required to have a direct contractual relationship with a payment processor.
By agreeing to the Terms, which includes these Merchant Payment Processing Instructions and Guidelines, Merchant agrees to comply with all applicable Payment Brand Rules and Security Standards, as they pertain to Transactions Merchant submits for processing through Sionic Mobile.
Card Acceptance Policies and Prohibitions.
- Accept all categories of Visa, MasterCard, American Express, and Discover Cards, unless Merchant has (a) implemented acceptance restrictions that are permissible under Payment Brands’ rules and applicable Federal, State, and local law and (b) notified Sionic Mobile and Merchant’s payment processor of such acceptance restrictions that Merchant has implemented;
- Publicly display appropriate signage to indicate all Cards accepted by Merchant, including any acceptance restrictions;
- Have appropriate procedures in place to ensure that each Transaction is made only by the true owner of the Card used to make payment; and
- Provide the End User with a Transaction Receipt for each Transaction. All Transaction Receipts must conform to applicable law and Payment Brand Rules.
Except to the extent permitted by law or the Payment Brand Rules, Merchant must not:
- Engage in any practice that unfavorably discriminates against or provides unequal treatment of any Payment Brand relative to any other Payment Brand;
- Set a dollar amount above or below which Merchant refuses to honor otherwise valid Cards;
- Issue a refund in cash or a cash equivalent (e.g., checks) for any Transaction originally conducted using a Card;
- Request or use a Card account number for any purpose other than to process a payment for goods or services sold; or
- Add any tax or surcharge to a Transaction; if any tax or surcharge amount is permitted, such amount shall be included in the Transaction amount and shall not be collected separately.
Merchant shall not:
- Require an End User to complete a postcard or similar device that includes Card Information in plain view when mailed;
- Require the End User to pay the processing fees payable by Merchant to your payment processor;
- Split a single Transaction into two or more Transactions to avoid or circumvent authorization limits or monitoring programs;
- Submit any Transaction that Merchant knows or should know to be either fraudulent, illegal, damaging to the Payment Brand(s) or Sionic Mobile, not authorized by the End User, or otherwise in violation of any provision of these Terms, applicable law, or Payment Brand Rules; and
- Accept Cards for the purchase of scrip.
Merchant represents, warrants, and covenants that, to the best of Merchant’s knowledge, each Transaction:
- Represents payment for or Refund of a bona fide sale or lease of the goods, services, or both, which Merchant has the legal right to sell and which is provided by Merchant in the ordinary course of your business;
- Is not submitted on behalf of a third party;
- Represents a current obligation of the End User to Merchant solely for the amount of the Transaction;
- Does not represent the collection of a dishonored check or the collection or refinancing of an existing debt;
- Represents goods that have been provided or shipped, or services that have actually been rendered, to the End User;
- Is free from any material alteration not authorized by the End User;
- Or the amount thereof, is not subject to any dispute, setoff, or counterclaim; and
- If such Transaction represents a credit to an End User’s Card, is a Refund for a Transaction previously submitted to Merchant’s payment processor.
- Merchant is liable for all Chargebacks.
Some of the most common reasons for Chargebacks include:
- Merchant fails to issue a Refund to an End User after the End User returns or does not receive goods or services;
- Merchant does not obtain an authorization/approval code;
- The Transaction was prepared incorrectly or fraudulently;
- The End User disputes the Transaction or the authenticity of the signature on the Transaction Receipt, or claims that the Transaction is subject to a set-off, defense, or counterclaim;
- The End User refuses to make payment for a Transaction because, in the End User’s opinion, a claim or complaint has not been resolved or has been resolved in an unsatisfactory manner; and
- The End User disputes making the Transaction and the Card was not physically presented at the time of the Transaction. In this case Merchant acknowledges that if Merchant does not have an electronic record or physical imprint of the Card, the Payment Brand Rules may not allow Merchant to challenge the Chargeback.
Card Settlement and Funding.
- Sionic Mobile will submit Merchant’s Transactions to Merchant’s payment processor. Merchant’s payment processor settles the funds from the Payment Brands with Merchant; Sionic Mobile does not receive funds from the Payment Brands or Merchant’s payment processor.
- Sionic Mobile is not liable for any delays in receipt of funds or errors in settlement of funds by Merchant’s payment processor or Merchant’s bank.
Transactions; Card Information.
- By accepting Cards from Merchant’s End Users, Merchant acknowledges and understands the importance of protecting Transactions and Card Information and complying with the Payment Brand Rules, Security Standards, and applicable law. Merchant also acknowledges the heightened risk associated with access to Transactions and Card Information, and, to the extent Merchant does have access to Transactions and Card Information, Merchant must establish policies and procedures to protect such information in conformity with the Payment Brand Rules, Security Standards, and applicable law, including the storage and disclosure of such information. Merchant shall exercise reasonable care to prevent use or disclosure of Transactions, Card Information, other than to (a) Merchant’s agents and contractors for the purpose of assisting Merchant in completing a Transaction; (b) to the applicable Payment Brand; or (c) as specifically required by law. Merchant is permitted by the Payment Brand Rules to store only certain Transaction data and Card Information (currently limited to the Customer’s name, Card account number, and expiration date) and are prohibited from storing additional Transaction data and Card Information, including, without limitation, any security code data, such as CVV2, CVC2, and PIN data, and any magnetic stripe track data. Merchants shall store all media containing Transactions and Card Information in an unreadable format wherever it is stored and in an area limited to selected personnel on a "need to know" basis only. Prior to discarding any material containing Transactions or Card Information, Merchant must render all Card account numbers unreadable. If at any time Merchant determines or suspects that Transactions or Card Information have been compromised, Merchant must notify Sionic Mobile and Merchant’s payment processor immediately and assist in providing notification to such parties as may be required by law or Payment Brand Rules, or as Sionic Mobile or Merchant’s payment processor otherwise reasonably deems necessary. Merchant further agrees to provide Sionic Mobile, upon its request, with such tests, scans, and assessments of Merchant’s compliance with the Payment Brand Rules and Security Standards as may from time to time be required by the Payment Brands.
- Merchant acknowledges that Merchant’s failure to comply with the Payment Brand Rules, including the Security Standards, or the compromise of any Transaction or Card Information, may result in assessments, fines and/or penalties by the Payment Brands. In the event Sionic Mobile incurs any damage, liability, fee, fine, assessment or penalty ("Loss") as a result of Merchant’s breach or violation of the Payment Brand Rules or Security Standards, Merchant shall reimburse Sionic Mobile, as applicable, immediately for all such Losses. Furthermore, if any Payment Brand requires a forensic examination of Merchant or any of Merchant’s agents, business partners, contractors, or subcontractors due to a Data Compromise Event, Merchant agrees to cooperate with such forensic examination until it is completed, including, without limitation, the engagement of an examiner acceptable to the relevant Payment Brand. Notwithstanding the foregoing, the Payment Brands may directly, or demand that Sionic Mobile, engage an examiner on Merchant’s behalf in order to expedite the investigation of the Data Compromise Event.
- "Card" is an account, or evidence of an account, authorized and established between an End User and a Payment Brand, or representatives or members of a Payment Brand that Merchant accepts from End Users as payment for a good or service. Cards include, but are not limited to, credit and debit cards, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates and credit accounts.
- "Card Information" is information related to an End User or the End User’s Card, that is obtained by the Merchant in connection with his or her use of a Card. Without limiting the foregoing, such information may include the Card account number and expiration date, the End User’s name or date of birth, PIN data, security code data (such as CVV2 and CVC2) and any data read, scanned, imprinted, or otherwise obtained from the Card, whether printed thereon, or magnetically, electronically or otherwise stored thereon.
- "Chargeback" is a reversal of a Transaction Merchant previously presented to payment processors pursuant to Payment Brand Rules.
- "Data Compromise Event" means an occurrence that results, or could result, directly or indirectly, in the unauthorized access to or disclosure of Transactions and/or Card Information.
- "Payment Brand" is any payment method provider whose payment method is accepted by Merchant from your End User and which is accepted by Sionic Mobile for processing, including, but not limited to, Visa, Inc., MasterCard International, Inc., Discover Financial Services, LLC and other credit and debit card providers, debit network providers, gift card and other stored value and loyalty program providers. Payment Brand also includes the Payment Card Industry Security Standards Council.
- "Payment Brand Rules" are the standards, bylaws, rules, and regulations, as they exist from time to time, of the Payment Brands.
- "Refund" means any refund or credit issued for any reason, including, without limitation, for a return of merchandise or cancellation of services, and any adjustment of a Transaction.
- "Security Standards" are all rules, regulations, standards or guidelines adopted or required by the Payment Brands or the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Card Information, including but not limited to the Payment Card Industry Data Security Standards ("PCI DSS"), Visa’s Cardholder Information Security Program ("CISP"), Discover’s Information Security & Compliance Program, American Express’s Data Security Operating Policy, MasterCard’s Site Data Protection Program ("SDP"), Visa’s Payment Application Best Practices ("PABP"), the Payment Card Industry’s Payment Application Data Security Standard ("PA DSS"), MasterCard’s POS Terminal Security program and the Payment Card Industry PIN Entry Device Standard, in each case as they may be amended from time to time.
- "Transaction" is a transaction conducted between an End User and Merchant utilizing a Card in which consideration is exchanged between the End User and Merchant, either directly or through Sionic Mobile. Transaction also means the written or electronic record of a Transaction, including, without limitation, an authorization code or settlement record, which is submitted to the Merchant's payment processor.
- "Transaction Receipt" means an electronic or paper record of a Transaction generated upon completion of a sale or Refund, a copy of which is presented to the End User.