RoadSync Checkout Service Terms of Use

ROADSYNC CHECKOUT SERVICE TERMS OF USE

YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS OF USE BEFORE ACCESSING OR USING THE ROADSYNC CHECKOUT SERVICES AVAILABLE THROUGH HTTPS://WWW.ROADSYNC.APP (“PAYMENT SERVICES”) PROVIDED BY ROADSYNC, INC. (“ROADSYNC” OR “WE/US”). BY PROCEEDING TO USE THE SERVICE and clicking the [accept] button or signing an order (defined below), YOU ACKNOWLEDGE YOUR ACCEPTANCE OF THE TERMS OF USE BELOW AND AS UPDATED BY ROADSYNC FROM TIME TO TIME (“TERMS OF USE”). THE “AGREEMENT” MEANS THE FOLLOWING TERMS OF USE AND any WRITTEN ORDER YOU AND ROADSYNC EXECUTE THAT INCORPORATES THESE TERMS OF USE (“ORDER”). clicking the [accept] button or EXECUTING THE ORDER FOR THE SERVICE CREATES A BINDING CONTRACT AND CONSTITUTES YOUR AGREEMENT TO THESE TERMS OF USE (in addition to the terms in the order). ALL REFERENCES TO “YOU” OR “CUSTOMER” IN THIS AGREEMENT MEAN THE ENTITY THAT HAS ENTERED INTO THE ORDER AND IS BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.

IF YOU DO NOT AGREE TO THESE TERMS OF USE, THEN DO NOT ACCESS OR USE THE PAYMENT SERVICES.

THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES ON THE SUBJECT MATTER OF THIS AGREEMENT AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, NEGOTIATIONS, REPRESENTATIONS AND PROPOSALS WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. IF THERE IS A CONFLICT BETWEEN THE TERMS IN ANY ORDER AND THESE TERM OF USE, THEN THE TERMS IN THE ORDER CONTROL. ANY PURCHASE ORDER ISSUED BY CUSTOMER IS FOR CUSTOMER’S CONVENIENCE ONLY AND ANY TERMS AND CONDITIONS IN SUCH PURCHASE ORDER DO NOT SUPPLEMENT OR AMEND THIS AGREEMENT AND ARE OF NO EFFECT.

NOTICE OF BINDING ARBITRATION

ANY CLAIM, DISPUTE OR CONTROVERSY OF WHATEVER NATURE ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE PROCESS DESCRIBED IN THE SECTION TITLED “ARBITRATION” BELOW. PLEASE READ THE SECTION TITLED “ARBITRATION” CAREFULLY.

 

1.        SERVICES.

1.1.           Generally. Pursuant to the applicable Order, RoadSync shall provide Payment Services which Customer’s Authorized Users may use to complete payment transactions between Customer’s business and its Payors (“Transactions”). “Authorized Users” means Customer’s employees, contractors, or agents whom Customer authorizes to use the Payment Services and act on Customer’s behalf to accept the payment from Payors. Transactions use payment processing services provided as part of the Payment Services through or with the assistance of certain third party financial services providers (“Financial Services Providers”) and

1.2.           Account Set Up. To utilize the Payment Services, Customer will open an account with RoadSync (the “Account”). To create the Account, Customer shall designate a Company Admin and submit an application that provides RoadSync with complete and accurate information about Customer’s organization as reasonably required, including but not limited to the following: (a) Customer legal name; (b) other business or trade name; (c) mailing address; (d) telephone; (e) website; (f) tax identification number; (g) nature of Customer’s business activities; and (h) bank account information. “Company Admin” means an Authorized User who is your contact for purposes of controlling your Account. 

1.3.           Additional Information. RoadSync may require personal information about the beneficial owners or principals of Customer, and administrators of Customer’s Account as necessary to open and maintain Customer’s Account, including with respect to processing of Transactions through Financial Services Providers, including but not limited to: (a) legal names; (b) birthdates; (c) social security numbers and/or individual taxpayer identification numbers; (d) residential addresses; and (e) government-issued identification.

1.4.           Underwriting. RoadSync may request additional information in connection with your Account to verify the beneficial ownership or control of the business, validate information provided by you, verify the identity of the business owners or principals, and generally assess the risk associated with your business. This additional information may include business invoices, copies of government-issued identification, business licenses, or other information related to your business, or your beneficial owners or principals. If you use Payment Services, we may also request that you provide copies of financial statements or records pertaining to your compliance with this Agreement, or require a personal or company guarantee from you. You shall promptly comply with all RoadSync’s reasonable requests for additional information, and you acknowledge and agree that your failure to do so may result in suspension or termination of your Account.

1.5.           Credit Verification. By entering into this Agreement, you expressly authorize us to retrieve information about your owners or principals from third party service providers that we use as part of our business. Such information may include related names, addresses, credit scores, and credit histories. You acknowledge and agree that we may use your information to verify any other information you provide to us, and that any information we collect may affect our assessment of your overall risk to our business. You acknowledge that in some cases, such information may lead to suspension or termination of the Payment Services. We may periodically update this information as part of our underwriting criteria and risk analysis procedures.

1.6.           Changes to Account Information. You agree to keep the information in your Account current. You must promptly update your Account with any changes affecting you, the nature of your business activities, your Authorized Users, beneficial owners, principals, or any other pertinent information.  Failure to keep your Account information current may affect your ability to receive Payment Services.

1.7.           Use of Payment Services. Payment Services include processing of Transactions via Automated Clearing House (“ACH”) and/or processing of Transactions via credit cards, debit cards, and/or other bank cards that use a payment system to settle financial transactions (“Payment Cards”). The Payment Services available to you depend on the specific services selected by you on the Order. Customer shall only utilize the Payment Services for legitimate and lawful Transactions.  Subject to the terms and conditions of this Agreement, RoadSync grants Customer a nonexclusive, nontransferable, nonsublicensable license for Customer’s Authorized Users to use the Payment Services for Customer’s internal business use in conducting Transactions. RoadSync may provide online or other documentation related to the use of the Payment Services (“Documentation”). Authorized Users may access and use any Documentation solely in connection with their permitted use of the Payment Services. 

1.8.           Account Management. The Company Admin will manage your Authorized User access.  Your and your Authorized Users’ protection of their IDs and passwords is an integral part of maintaining the privacy and integrity of data in the Service. You shall keep confidential and not disclose, nor permit any Authorized User to disclose, any ID or password to third parties.  You shall notify RoadSync immediately of any unauthorized use of any ID or password or any other known or suspected breach of security with respect to your use of the Payment Services.  You are responsible for ensuring that all Authorized Users comply with the terms of this Agreement and for all activities of Authorized Users and others that occur through your Account.

1.9.           Limitations on Use. The Documentation contains requirements for and limitations on the use of the Payment Services.  Customer’s use is subject to the requirements and limitations in the Documentation and any other limitations on the Payment Services in the Order. Customer shall not use the Payment Services in a manner that violates any laws, infringes the rights of anyone, or damages any person or property.  In addition, Customer may not use the Payment Services for purposes of monitoring the performance or functionality of the Payment Services or for any other benchmarking or competitive purposes. Customer represents and warrants that (a) Customer has the right to use and provide to RoadSync for use as described in this Agreement any information and materials that Customer and its Authorized Users provide, and (b) all Authorized Users have the right and authority to bind Customer with respect to any Transactions.

1.10.        Support. RoadSync will provide 24/7 email support for the Payment Services.  Additional provisions regarding support may be set forth in the applicable Order.

1.11.        Reservation of Rights. Except for the limited rights expressly granted in this Agreement, RoadSync reserves all rights, title and interest in and to the Payment Services and the technology used to provide the Payment Services, including all related intellectual property rights. No rights are granted to Customer other than as expressly set forth in this Agreement. Without limiting the generality of the foregoing, Customer may not (a) distribute, sublicense, copy, or modify the Payment Services or its underlying technology, (b) use on behalf of any third party, or permit any third party to use, the Payment Services, (c) decompile or reverse engineer any software used to provide Payment Services; (d) remove any proprietary rights notices on the Documentation or any displays of any portions of Payment Services (e.g., screen shots), or (e) attempt to gain unauthorized access to the Payment Services or circumvent any security measures within the Payment Services.

2.        FEES AND PAYMENT.

2.1.           Payment Service Fees. The fee schedule for Payment Services will be set forth in the applicable Orders (the “Payment Service Fees”) and are based upon the number and value of Transactions initiated or received by Customer or its Authorized Users. RoadSync may change the fee schedule set forth on the Order from time to time, in its sole discretion by notifying you at least 15 days before a change in the Payment Service Fees takes effect. All Payment Service Fees are calculated based upon the number of Transactions processed by us on your behalf. All Payment Service Fees are fully due and payable upon the completion of each Transaction from or via your Account, and you agree that RoadSync is entitled to collect this fee immediately. By providing RoadSync a payment method such as a bank account, you expressly authorize RoadSync to charge the applicable Fees on said payment method or deduct the applicable Payment Service Fees from the payment method at reasonable intervals as dictated by RoadSync’s normal procedures, which are further defined in the Payment Processing Addendum.

2.2.           Currency; Taxes. All fees and other amounts payable to RoadSync shall be paid in U.S. dollars. Fees and other amounts charged are exclusive of taxes unless otherwise expressly indicated. Customer shall pay all applicable sales, excise, service, use or other taxes now or hereafter imposed upon or required to be collected by RoadSync or by any authority in connection with or arising from the use of the Services, excluding taxes based upon RoadSync’s net income. All fees are nonrefundable.

3.        CONFIDENTIALITY; DATA.

3.1.           Confidentiality. “Confidential Information” means any trade secrets and other information that is of value to its owner and is treated as confidential. Confidential Information of RoadSync includes any RoadSync proprietary methods and technology, including those relating to its Payment Services. Confidential Information does not include information which (a) was in the public domain at the time it was disclosed or becomes in the public domain through no fault of the receiver; (b) can be shown by written documentation to have been known to the receiver, without restriction, at the time of disclosure; (c) was independently developed by the receiver without any use of the discloser’s Confidential Information; or (d) becomes known to the receiver, without restriction, from a source other than the discloser without breach of any confidentiality agreement and otherwise not in violation of the discloser’s rights. Each party shall treat the Confidential Information of the other party in a confidential manner with the same degree of care as it treats its own proprietary information of like importance, but with no less than a reasonable degree of care. The receiving party shall not use or disclose the Confidential Information for any purpose other than as expressly provided by this Agreement. A party may disclose Confidential Information pursuant to the order or requirement of a court or other government body, but that party shall notify the other party in advance to enable the other party to take protective measures.

3.2.           Feedback. If Customer or Customer’s Authorized Users submit to RoadSync suggestions or other feedback related to the Payment Services or other RoadSync products or services (“Feedback”), then RoadSync will own all rights to the Feedback and any resulting modifications or works and may use the Feedback for any purpose without compensation to Customer or any other person and without any obligation of confidentiality to Customer.

3.3.           Data.

                  (a)             Account Information. “Account Information” means the personal and other nonpublic information that RoadSync requests from and receives from you and your Authorized Users in order to open and maintain your Account as described in Sections 1.3-1.7. RoadSync will use commercially reasonable efforts to maintain as confidential Customer’s Account Information. RoadSync may use the Account Information as necessary to provide the Payment Services to Customer, to contact Customer or an Authorized User regarding RoadSync products and services, and for any other purpose permitted under law. 

                  (b)             Transaction Data. “Transaction Data” means the Transaction-related data your Authorized Users submit to the Payment Services, including payment amounts, purchase order information, and load/delivery information. Transaction Data does not include Usage Data (as defined below) or Payor Data (defined below). You grant RoadSync the worldwide, nonexclusive right to copy, display, modify, store, process and otherwise use Transaction Data, and permit RoadSync’s service providers (including Financial Service Providers) to do so, during and after the term of this Agreement in order to do the following: (a) provide the Services and complete Transactions, (b) improve the Services and RoadSync’s other products and services, and (c) create Aggregate Data (defined below). You own and retain all rights in the Transaction Data other than the license granted to RoadSync above.

                  (c)             Usage Data; Payor Data. As a part of the Payment Services, RoadSync and its service providers may collect, process, store, modify, aggregate and otherwise use statistics and other data regarding the Payment Services and how you and your Authorized Users use and interact with the Payment Services, such as the timing, number and frequency of Transactions (“Usage Data”). RoadSync owns and retains all rights in the Usage Data, but nothing in this Agreement transfers ownership to RoadSync of your Transaction Data. “Payor Data” means the data provided by Payors in order for them to participate in the Payment Services and to conduct Transactions. As between the parties, RoadSync owns and retains all right in the Payor Data. Any such Payor Data and Usage Data provided by RoadSync to Customer may be used by Customer as part of the Payment Services only and is the Confidential Information of RoadSync.

                  (d)             Aggregate Data. “Aggregate Data” means de-identified, anonymous data in the form of summary level information that may be based on data resulting from any aggregation, combination or analysis of Transaction Data, Usage Data, Payor Data, data from other sources, or nay of all of them.  RoadSync and/or its affiliates may use Aggregate Data in connection with research and development, creation of data and analytics tools and products and for any other purpose permitted by applicable law. RoadSync or its affiliates will own all right, title or interest in or to Aggregate Data and any information, products, or services based on Aggregate Data. Aggregate Data disclosed by RoadSync (other than to its service providers) will not disclose Confidential Information of or the identity of Customer or its Authorized Users.

                  (e)             Transfers. RoadSync may transfer the data under this Agreement to a third party in connection with a delegation of hosting, transmission or other duties, as long as the third party provider agrees to abide by confidentiality obligations similar to the ones contained in this Agreement or in connection with a permitted assignment of this Agreement. In addition, RoadSync may disclose data if required by law or to any government body upon its audit or other inspection of the records or facilities of RoadSync or its providers.  Additional collection and uses of data by Financial Service Providers are set forth in the Payment Processing Addendum.

4.        SECURITY AND BUSINESS CONTINUITY.

4.1.           Data Security Obligations.  RoadSync has implemented comprehensive IT and data security policies and practices (“Data Security Policies”) and agrees to maintain and update them periodically to maintain an appropriate level of security. Upon Customer’s reasonable request, RoadSync will provide Customer with a summary of its current Data Security Policies.  The parties acknowledge that risks and data security regulations and best practices change over time and consequently. RoadSync reviews its Data Security Policies and program on a regular basis and modifies them as necessary. RoadSync agrees to notify Customer of any material changes in its Data Security Policies.  

4.2.           Business Continuity Plans. RoadSync will maintain during the term of this Agreement disaster recovery and business continuity plans (collectively, “Business Continuity Plans”) designed to maintain the continuity of RoadSync’s operations and the ability to recover from the effects of a Force Majeure event or other disaster affecting RoadSync’s operations.  RoadSync shall provide Customer with summaries of its Business Continuity Plans upon Customer’s request.  If a disaster affects RoadSync’s operations, then RoadSync shall implement the steps in its Business Continuity Plans and shall update Customer periodically regarding its progress until resumption of the Payment Services.

5.        WARRANTIES; DISCLAIMERS.

5.1.           General.  Each party represents and warrants to the other party that: (a)  it is duly organized and in good standing under the laws of the state of its organization; and (b) it is duly authorized to enter into this Agreement and to perform its obligations hereunder.

5.2.           Transaction Accuracy. RoadSync solely facilitates payments on your behalf, and RoadSync will not be responsible for any of the products or services you provide to your Payors, customers, or anyone else. You acknowledge and agree that you are solely responsible for instructing RoadSync which parties to solicit payment from and for authorizing the payment amounts. RoadSync is not a party to any agreement between you and your Payors, and, as such RoadSync has no responsibility for any actions or omissions of Payors. RoadSync is unable to determine if any particular payment or Transaction is accurate or correct. You are responsible for knowing whether a Transaction involving you or an Authorized User is proper or erroneous, and RoadSync is not responsible for any losses you incur due to erroneous or fraudulent Transactions in connection with your Account or your use of the PaymentServices.

5.3.           General. Except as expressly set forth in this Agreement, the Services are provided without warranty of any kind, either express or implied, and to the fullest extent permitted by applicable law, RoadSync disclaims, on behalf of itself and its Financial Services Providers, any and all warranties and conditions including (i) that the Services will meet Customer’s requirements; (ii) the availability, accuracy, security, usefulness, timeliness, or informational content of the Services; (iii) warranties of non-infringement, merchantability, satisfactory quality, and fitness for a particular purpose; or (iv) that the Services will be secure, uninterrupted, virus-free or error-free.

5.4.           Third Party Warranty Disclaimer. Any representation or warranty of or concerning any third party materials or services is strictly between customer and the third party provider of the third party materials, and RoadSync makes no representation or warranty regarding any third party materials or services.

7.        LIMITATION OF LIABILITY.

RoadSync, its affiliates, and its and their officers, directors, employees and agents, will not be liable for any of the following in any way connected with the Services: (a) any indirect, incidental, special, consequential or exemplary damages, including damages for loss of profits, use, or data even if RoadSync has been advised of the possibilities of those damages, or (b) any amount exceeding the greater of fees Customer has paid to RoadSync for the Services in the 12 months immediately preceding the claim or cause of action.

8.        TERM AND TERMINATION.

8.1.           Term.  This Agreement will continue for the period set forth in the Order, unless the Agreement is earlier terminated as set forth in this Agreement.

8.2.           Termination.  A party may terminate this Agreement if the other party commits any material breach of this Agreement and does not remedy the material breach within 30 days after the date that it receives notice of the breach. The Agreement may be terminated by either party immediately upon written notice, in the event that: (A) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (B) a receiver, trustee, or similar officer is appointed for the business or property of such party; or (C) the other party adopts a resolution for discontinuance of its business or for dissolution.

8.3.           Suspension of Access. RoadSync may suspend Customer’s or any Authorized User’s access to the Payment Services for any violation of this Agreement or if RoadSync reasonably believes that Customer’s or Customer’s Authorized Users’ activity is harming the Payment Services or the rights or property of any person. RoadSync may exercise these suspension rights prior to exercising its rights under the termination provisions of this Agreement and without prior written notice to Customer. Unless the Agreement is terminated, RoadSync will remove the suspension upon resolution of the cause of the suspension.

8.4.           Effect of Termination. Upon termination of Customer’s Payment Services for any reason, Customer will no longer be able to use the Payment Services.  No fees will be refunded upon any termination. Within 15 business days following termination of Payment Services, RoadSync will either (a) permit Customer to access the Payment Services in order to download a report with the current Transaction Data or (b) provide to Customer a report containing the current Transaction Data. The report will be in the format generally available from the Payment Services or in a format mutually agreed by the parties. Upon termination of this Agreement Customer will return or destroy all Confidential Information of RoadSync in Customer’s possession. The following sections of this Agreement survive termination in full force and effect: 1.11, 3, 5, 7, 8.4, 12, 13, 14, and 18.

9.                 PUBLICITY.

RoadSync may include Customer’s name in a list of its clients and customers on its website and as provided by RoadSync to potential clients and customers. In such case, RoadSync will follow Customer’s branding, guidelines including, but not limited to logo, font and brand colors. Any other use of Customer’s name or logo by RoadSync requires Customer’s written consent, to which Customer will provide a timely response either allowing or denying the request.

16.10.           FORCE MAJEURE. 

Other than payment obligations, neither party will be responsible, nor incur any liability to the other for any failure to comply with the terms of this Agreement due to causes beyond its control, including, without limitation, fire, storm, flood, acts of war, accident, insurrection, sabotage, labor disputes, acts of God, acts of third parties, acts of federal, state or local government or judicial action.

16.11.            ASSIGNMENT. 

You may not assign, sublicense, or transfer this Agreement without the prior written consent of RoadSync. Any attempt by you to sublicense, assign or transfer any rights, duties, or obligations hereunder is null and void. RoadSync may assign this Agreement in whole or in part without notice to you. RoadSync may subcontract portions of the Services and will be responsible for such subcontractors in their performance of any Services. Financial Service Providers and Contractors are not RoadSync’s subcontractors.  

12.            GOVERNING LAW.

This Agreement is governed by the laws of the state of Georgia, USA, without regard to conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The official language of this Agreement is English.  All contract interpretations, notices and dispute resolutions shall be in English.  Translations of any of these documents are not to be construed as official or original versions of the documents.

13.            ARBITRATION.

Arbitration shall be conducted by and submitted to a single arbitrator selected from and administered by the Atlanta, Georgia, USA office of JAMS, in accordance with the then-existing expedited procedures of the JAMS Comprehensive Arbitration Rules & Procedures. The arbitration shall be conducted by a licensed attorney with experience in technology law. The arbitrator is authorized to award damages only as permitted by this Agreement. Each party shall bear its own attorneys’ fees and costs arising out of the arbitration and shall pay an equal share of the fees and costs of the arbitrator and JAMS. The arbitrator may award to the prevailing party reimbursement of its reasonable attorneys’ fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the arbitrator. The arbitrator shall issue a written award and a written statement of decision describing the material factual findings and conclusions on which the award is based, including the calculation of any damages awarded. Judgment on the award may be entered by any court of competent jurisdiction. BY AGREEING TO THIS BINDING ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU ARE WAIVING CERTAIN RIGHTS AND PROTECTIONS WHICH MAY OTHERWISE BE AVAILABLE IF A CLAIM OR DISPUTE WERE DETERMINED BY LITIGATION IN COURT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO SEEK OR OBTAIN CERTAIN TYPES OF DAMAGES, THE RIGHT TO A JURY TRIAL, CERTAIN RIGHTS OF APPEAL, THE RIGHT TO BRING A CLAIM AS A CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND THE RIGHT TO INVOKE FORMAL RULES OF PROCEDURE AND EVIDENCE. YOUR USE OF THE SERVICE IS PREDICATED UPON YOUR WAIVER OF ANY RIGHT TO SUE ROADSYNC DIRECTLY OR TO PARTICIPATE IN A CLASS ACTION SUIT FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF THE SERVICE or related to this agreement.

14.            LIMITATION OF ACTIONS.

No action arising out of this Agreement, regardless of form, may be brought by you more than one year after the date the cause of action has accrued.

15.            U.S. GOVERNMENT END USE PROVISIONS.

The following applies to all acquisitions of the Services and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government.  The Services and Documentation and services utilizing the Services and Documentation provided under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Services and its associated services and Documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Services and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

16.            COMMUNICATIONS.

Any notices to RoadSync regarding this Agreement should be sent to sales@roadsync.com. RoadSync may contact and notify you at the email address for your contact set forth in the Order.

17.            AMENDMENTS.

RoadSync reserves the right to change these Terms of Use from time to time without advance notice by posting the changes at https://www.roadsync.com/checkout_tos. We encourage you to periodically visit that page to check for any changes. You acknowledge and agree that you will be bound by the amended Terms of Use if you continue to access or use the Service after the change is posted and that it is not necessary for you to accept the updated Terms of Use in order for them to be valid and effective. If, within 30 days of us posting the updated Terms of Use, you do not agree to the updated terms, you may terminate the Agreement by provide us notice pursuant to Section 16 (Communications) above.

18.            MISCELLANEOUS.

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. No waiver, amendment or modification of any provision of this Agreement will be effective unless it is in writing, refers to this Agreement, and is signed by authorized representatives of the parties.  No failure or delay by either party to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy.  A party’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. If any provision of this Agreement requires judicial interpretation, this Agreement is not to be more strictly construed against one party than the other. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect.

 

 

Exhibit A

PAYMENT PROCESSING ADDENDUM

A glossary of defined terms is provided at the end of this Payment Processing Addendum, but other l capitalized terms that are not defined in this Payment Processing Addendum are defined in the Agreement. This Payment Processing Addendum sets forth the terms, limitations, and prohibitions that will apply to you throughout your use of the Payment Services. To use the Payment Services, you may also be required to accept separate agreements or terms with respect to the particular Financial Service Provider, as applicable.

1. Registration and Approval; ACH and Payment Cards Generally; Electronic Consent.

a) When you register for an Account and request that we provide you with Payment Services, you may be asked for financial information, or information we use to identify you, your Authorized Users, principals, beneficial owners, and other individuals associated with your Account. Throughout the term of this Agreement, we may share information about you and your Account with Financial Service Providers in order to verify your eligibility to use the Payment Services, establish any necessary accounts or credit with Financial Service Providers, monitor charges made by you and other activity, and conduct risk management and compliance reviews. We will review and may conduct further intermittent reviews of your Account information to determine that you are eligible to use the Payment Services.

b) You acknowledge and agree that we are not a banking institution and we do not provide loans and nor do we typically extend credit. We may however, at our sole discretion, offer Credit Terms to you as it pertains to our fees. Any such Credit Terms shall be for an amount and for the length of time we deem appropriate.

c) In order to use the ACH payment functionality of the Payment Services, you must open an account provided by Dwolla, Inc. (“Dwolla”). You must accept the then current Dwolla Terms of Service and Privacy Policy, currently available at https://www.dwolla.com/legal/tos/. Any funds held in the Dwolla account are held by Financial Service Providers who are associated with Dwolla, as set out in the Dwolla Terms of Service. You expressly authorize us to share your identity, information, and Account data with Dwolla for the purposes of opening, supporting, and maintaining your Dwolla account. You shall be solely and exclusively responsible for the accuracy and completeness of that data. You understand that we will access and manage your Dwolla account, and complete Transactions through the Account and the Payment Services, and Dwolla account notifications will be sent by RoadSync, not Dwolla. RoadSync will provide customer support for your Dwolla account activity, and we can be reached at info@RoadSync.com.

d) For Payment Card Transactions, RoadSync acts as a payment service provider and has an arrangement with Financial Services Providers for the processing of Payment Card Transactions by the applicable Financial Services Provider who is the acquiring bank and its processors and the Networks. You authorize RoadSync to act as your agent for the purposes of holding, receiving, and disbursing funds on your behalf as described in this Payment Processing Addendum. The WEX Card Sale Procedures Addendum is found at the end of this Payment Processing Addendum and is part of this Payment Processing Addendum.

e) . You agree to the electronic consents that RoadSync provides regarding the Payment Services, including an E-sign consent. We may provide disclosures and notices required by law and other information about your Account to you electronically, by posting it on our website, pushing notifications through the Payment Services, or by emailing it to your email address listed in your Account. Electronic disclosures and notices have the same meaning and effect as paper copies. Such disclosures and notices are considered received by you within 24 hours of the time posted to our website, or within 24 hours of the time the email is sent unless we receive notice that the email was not delivered. If you wish to withdraw your consent to receiving electronic communications, you shall notify RoadSync as provided in this Agreement. If RoadSync is not able to support your request, the parties may terminate the applicable Payment Service.

2. Processing Transactions, Disputes and Chargebacks.

a) In utilizing the Payment Services, Customer may only submit Charges through the Payment Services that are authorized by your Payors. To enable us to process Transactions for you, you authorize and direct RoadSync and Financial Service Providers to receive and pay any funds owed to you through the Payment Services, and you will identify RoadSync as your agent for purpose of providing the Payment Services to you.

b) Customer shall maintain a direct relationship with Payors, and Customer shall be responsible for: (i) acquiring appropriate consent to submit Charges through the Payment Services on their behalf; (ii) providing confirmation or receipts to Payors for each Charge; (iii) verifying Payors’ identities; and (iv) determining a Payors’ eligibility and authority to complete Transactions.

c) Customer acknowledges and agrees that even authorized Transactions may be subject to a Dispute. A Transaction may be reversed or charged back to you (a “Chargeback”) if (a) there is a Dispute, (b) the Transaction reversed for any reason by the Financial Services Provider or their Networks or processor, or by the Payor or its financial institution, (c) was not authorized or we have any reason to believe that the Transaction was not authorized, or (d) the Transaction is allegedly unlawful, suspicious, or in violation of the this Agreement or any Network Rules. You agree to comply with the Chargeback process and to the liability associated with such Chargebacks.

d) RoadSync may hold Chargeback amounts in a separate account. RoadSync may delay payouts to you if there are pending Chargebacks as described in the Transfers and Timing section below. If you lose a Dispute, you agree to pay us the full amount plus any fees and agree that we may debit your Payout Account to recover money you owe. For any Transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve (as described below). You grant us authorization to recover the amount of any Chargeback and any associated fees, fines, or penalties assessed by a Financial Service Provider, Network or processor. This authorization includes all authorizations regarding the actions above without prior notice to you, whether or not we have made demand or the obligation is contingent, matured or unmatured. Further, if we reasonably believe that a Chargeback is likely with respect to any Transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you until such time that (a) a Dispute is assessed due to a customer complaint, in which case we will retain the funds, (b) the period of time under applicable law or regulation by which the Payor may dispute that the Transaction has expired, or (c) we determine that a Chargeback will not occur.

e) You will assist us when requested, at your expense, to investigate any of your Transactions processed through the Payment Services. Your failure to assist us in a timely manner when investigating a Transaction or Dispute, including providing necessary documentation, may result in an irreversible Chargeback. We may request additional information to provide to the Financial Service Provider to assist you in contesting Disputes relating to the Payment Services. We may share information about a Transaction or Dispute (including Transaction Data) with the Financial Services Provider, the Payor, and the Payor’s financial institution, and your financial institution in order to investigate and/or mediate a Dispute. We cannot guarantee that your challenge regarding any Chargeback or Dispute will be successful. We have no control over a Financial Service Provider or Network, and they may deny your challenge for any reason they deem appropriate. Where a challenge is entirely or partially successful, a Financial Service Provider may credit funds for the Disputed Transaction (or a portion thereof), in which case we will then credit the amount to your Account. If we are unable to recover funds related to a Chargeback for which you are liable or a Dispute is not resolved in your favor, then you agree to pay us the full amount of the Chargeback immediately upon demand and all costs and expenses, including attorneys’ fees and other legal expenses, incurred by us for the collection of all amounts unpaid by you. If a Dispute does not end in your favor, then we may collect the Chargeback amount and any related fees from your Account. You are responsible for all Chargeback, refunds, reversals, returns, or fines regardless of the reason or timing. We may upon notice to you charge a fee for mediating and/or investigating Disputes.

f) If you incur, or we believe you are incurring, too many Chargebacks, we may establish additional restrictions or conditions governing your Account, including (a) changes in fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payouts, or (d) terminating or suspending the Payment Services to you.

g) You are liable for all losses incurred when lost or stolen payment credentials or accounts are used to purchase products or services from you. RoadSync does not and will not insure you against losses caused by fraud under any circumstances. For example, if someone pretends to be a legitimate Payor but is a fraudster, you will be responsible for any resulting costs, including Disputes, even if you do not recover the fraudulently purchased product or service. Even if we work with you to assist you or law enforcement in recovering lost funds, RoadSync is not liable to you, or responsible for your financial losses or any other consequences of such fraud. We strongly encourage you to grant access to your Account to Authorized Users only on an as-needed basis. We further encourage you to establish, enforce, and periodically review password, technology, and data security policies that are appropriate for your organization.

h) A Financial Service Provider or RoadSync may issue a reversal for any Charge, where a Charge is made without the proper authorization, or that violates its terms of service, policies, the law, or for many other reasons. If a Financial Service Provider or RoadSync issues a reversal, we will exercise a reasonable effort to provide you notice and a description of the cause of the reversal.

i) You acknowledge and agree that once a Transaction is processed using the Account and/or Payment Services, RoadSync is unable to hold, stop, or cancel the Transaction. You are solely responsible for all instructions that you provide to RoadSync and any results therefrom with respect to Transactions, routing, or return of funds.

j) You expressly agree that you will not utilize the Payment Services to engage in unfair, deceptive, or abusive acts or practices.

k) In addition, you represent and warrant the following as to each Transaction: (i) such Transaction represents a bona fide sale of products or services sold and delivered in the ordinary course of business for the total sales price reported by you to the Financial Services Provider; (ii) you have performed all of your obligations to the Payor in connection with the Transaction, including those set forth below in this Payment Processing Addendum; (iii) the Transaction involves no sale or transaction other than the one described therein; (iv) with respect to any discount that you specify for any single Payor or group of Payors, you have properly and accurately disclosed the discount in advance to that Payor or group of Payors; and (v) all electronically- telephonically- or hardware-generated invoices, receipts, records or memoranda of sales are in fact genuine and not forged or unauthorized.

3. Responsibilities and Disclosures to Payors

a) Customer acknowledges that it is important for Payors to understand the purpose, amount, and conditions of Charges Customer submits to RoadSync. Accordingly, when using the Payment Services Customer agrees to: (i) accurately communicate, and not misrepresent, the nature of the Transaction, and the amount of the Charge in the appropriate currency prior to submitting it to the API; (ii) provide a receipt that accurately describes each Transaction to Payors; (iii) provide Payors a meaningful way to contact you in the event that the product or service is not provided as described; and (iv) not use Payment Services to sell products or services in a manner that is unfair or deceptive, exposes Payors to unreasonable risks, or does not disclose material terms of a Transaction in advance. Customer also agrees to maintain a fair refund, cancellation, or adjustment policy, and clearly explain the process by which Payors can receive a refund.

b) Customer is solely responsible for, and RoadSync and the Financial Service Providers have no responsibility for the products or services provided or to be provided to Payors, including the nature, quality, quantity and merchantability of those products or services. Customer shall deal directly with its Payors with respect to any claim, complaint, adjustment, or refunds regarding Customer and Customer’s products and services, and shall deal with its Payors reasonably and courteously in resolving or attempting to resolve such claims, complaints, adjustments and refunds.

c) If you engage in Transactions with Payors who are individuals (i.e. consumers), you specifically agree to provide consumers disclosures required by law, and to not engage in unfair, deceptive, or abusive acts or practices (UDAAP).

d) You shall indemnify RoadSync and its Financial Service Providers for any losses incurred based on its failure to properly describe or deliver your products or services or comply with your legal or contractual obligations to your customers.

4. Financial Service Providers.

a) To use the Payment Services, you may be required to agree to additional terms (“Financial Service Provider Terms”) of service between you and one or more Financial Service Providers or RoadSync on its or their behalf, as applicable. In addition, unique terms and conditions may also apply to specific payment methods or networks. By using the Payment Services, you agree to the Financial Service Provider Terms. We may add or remove Financial Service Providers or payment methods at any time. We have no control over Financial Service Provider Terms, which may be amended from time to time. Your continuing use of the Payment Services constitutes your consent and agreement to the Financial Service Provider Terms and all such additions, removals and amendments thereto. RoadSync will provide the current list of such Financial Service Providers and the corresponding Financial Service Provider Terms upon your reasonable request. You agree to be bound by and shall comply with all Financial Service Provider Terms. Any breach by you or any of your Authorized Users of any Financial Service Provider Terms shall also a breach of this Agreement.

b) A Financial Service Provider may collect certain information through the processing of Transactions and your use of the Payment Services for the purposes of (i) monitoring your compliance with the terms of this Agreement and Network Rules, (ii) maintaining and supporting its network and services, (iii) detecting and preventing fraud, (iv) protecting its business, its networks and Payors, (v) providing additional products and services to you, other merchants or third parties, and this includes collecting, using and de-identifying cardholder data, dates, amounts and other such information to provide you with analytic products and services and using such information anonymized and aggregated with other merchants’ transaction data for their internal purposes and to provide you, other merchants, and third parties with analytic products and services. Financial Service Providers may also use and disclose statistics and data collated or generated by it as a result of processing Transactions hereunder subject to applicable law. By accessing, using, and providing information to or through the Financial Service Provider’s networks, you consent to the collection and uses described above in this Section.

5. Additional Rules.

a) When accepting Payment Card payments, you must comply with the applicable Network Rules. Among other things, these Network Rules state that you may only accept Payment Cards payments for bona fide legal commercial Transactions and may only use Network trademarks or service marks consistent with the Network Rules and specifically prohibit the following with respect to Payment Card Transactions: (i) providing cash refunds for a Charge on a credit card, unless required by applicable law, (ii) accepting cash, its equivalent, or any other item of value for a refund, (iii) acting as a payment intermediary or aggregator, or otherwise reselling Payment Services on behalf of others, (iv) submitting what you believe or know to be a fraudulent Transaction, or (v) using Payment Services in a manner that is an abuse of Financial Services Providers’ Networks or a violation of Network Rules.

b) Network Rules may also include specifications for both the point of sale equipment and the network host that must be used for the Payment Services. Network Rules may be amended at any time without notice to you, and RoadSync reserves the right to change the Payment Services for Payment Card processing at any time to comply with the Network Rules. We may share the information you provide to us that we use to identify the nature of the products or services with Financial Services Providers, including assigning your business activities to a particular payment network merchant category code (MCC). . If you misuse the Payment Services for Payment Card Transactions or engage in activity the Financial Services Providers or Networks identify as damaging to their brand, or if we are required to do so by Network Rules, we will submit information about you, representatives, principals, beneficial owners and other individuals associated with your Account to the MATCH terminated merchant listing maintained by MasterCard and accessed and updated by Visa and American Express, or to the Consortium Merchant Negative File maintained by Discover. Addition to one of these lists may result in your inability to accept or use Payment Cards. You understand and consent to our sharing this information and to the listing itself, and you will fully reimburse us for any losses we incur from third-party claims, and you waive your rights to bring any direct claims against us that result from such reporting.

c) The ACH network is controlled by NACHA and Financial Service Provider member organizations. If ACH is made available to you, when you submit Charges over the ACH network, you are required to comply with the Network Rules for use of the ACH network on NACHA’s web site: https://www.nacha.org/rules. NACHA may amend the Network Rules at any time, and we may amend this Agreement or make changes to the Payment Services as necessary to comply with the Network Rules. As with other Payment Services, you may not, and may not attempt to send or receive funds to or from a person, entity, or state where such Transactions are prohibited by applicable law. You also agree to maintain the security and integrity of all information you collect as part of an ACH Transaction. Any Disputes or unauthorized Charges using the ACH network may result in your inability to accept ACH payments.

d) You expressly agree that, in your use of the Payment Services, you will not (i) act as a payment intermediary or aggregator, or reseller of Payment Services on behalf of others; (ii) submit or partake in what you believe or know to be a fraudulent Transaction; or (iii) use Payment Services in a manner that is an abuse of any Financial Service Provider or a violation of Network Rules.

e) If you misuse the Payment Services for Payment Card Transactions or engage in activity the Financial Service Providers identify as damaging to their brand, or if we are required to do so by Network Rules, we reserve the right to freeze or terminate your Account and your ability to use the Payment Services immediately.

f) You agree that you shall not, and not attempt to, send or receive funds to or from a person, entity, or state where such Transactions are prohibited by applicable law (including U.S. law). You also agree to maintain the security and integrity of all information you collect as part of any Transaction you participate in involving ACH. If you misuse the Payment Services for any ACH Transactions, or if we are required to do so by Network Rules, we reserve the right to freeze or terminate your Account and your ability to use the Payment Services immediately.

6. Transfers and Timing.

a) Transfers may be initiated by you to or from your Account with RoadSync to or from your Payout Account. A positive balance in your Account will result in a transfer to your Payout Account and a negative balance in your Account will result in a transfer from your Payout Account. All transfers to your Payout Account will exclude fees, fines, and amounts owed to RoadSync for any reason. You affirm that you are authorized to initiate transfers to and from the Payout Account.

b) We may require a holding period before making an initial transfer of funds. You acknowledge that some Financial Service Providers, including the institution holding your Payout Account, may delay funds transfers for any reason. We are not responsible for any action taken by the institution holding the Payout Account to not credit the Payout Account or to otherwise not make funds available to you as you expected.

c) We reserve the right to change the Payout Schedule or to suspend funds transfers for you: (i) due to pending, anticipated, or excessive Disputes, Chargebacks, refunds, or reversals involving your Account; (ii) there is suspected or actual suspicious activity; or (iii) where we are required by applicable laws or court order. We have the right to withhold transfers to your Payout Account upon termination of this Agreement if we reasonably determine that we may incur losses resulting from credit, fraud, or other legal risks associated with your Account. If we exercise our right to withhold a payment for any reason, we will communicate the general reason for withholding the payment and give you a timeline for releasing the funds at your reasonable request.

d) You shall be solely responsible for the keeping your Account information complete, current, and accurate, and for any information about the Payout Accounts. If you provide us with incorrect information (i) you understand that transfers of funds may be sent to the wrong persons and we may not be able to recover the funds from such incorrect transfers and (ii) you agree that you are solely responsible for any losses you or third parties incur, you will not make any claims against us related to such erroneous funds transfers, and you will fully reimburse us for any losses we incur.

7. Reserves and Clearinghouse Funds.

a) All funds resulting from Charges are held in our Clearing Accounts. We will make transfers of funds to and from the Clearing Accounts in the manner described in this Agreement; however, you have no rights to the Clearing Accounts or to any funds held in the Clearing Accounts, you are not entitled to draw funds from the Clearing Accounts, and you will not receive interest from funds maintained in the Clearing Accounts.

b) In certain circumstances, we may require you to place funds in reserve or to impose conditions on the release of funds to you (each a “Reserve”). We may impose a Reserve on you for any reason if we determine that the risk of loss to RoadSync or others associated with your Account is higher than normal. If we impose a Reserve, we will establish the terms of the Reserve and provide you notice of the amount, timing, and conditions upon which the funds in the Reserve will be released to you. We may change or condition the terms of the Reserve based on our continuous assessment and understanding of the risks associated with your Account, if required to do so by Financial Service Providers, or for any other reason. We may fund the Reserve with funds processed through your use of Payment Services, by debiting the Payout Account or another bank account associated with your Account, or by requesting funds directly from you.

c) To the extent possible, we prefer to identify the necessity for a Reserve in advance of establishing one. If you are concerned that we will impose a Reserve on you due to the nature of your business activities, please contact us before using the Payment Services.

8. Security Interests, Rights to Set-Off, Invoicing and Collections.

a) By executing this Agreement and utilizing the Payment Services, you hereby grant us a lien and security interest in all funds processed or deposited into all Payout Accounts or any other bank account associated with your Account, and in any funds processed using the Payment Services. This means that if you have not paid funds that you owe to us, or to any of our affiliates, we have a right superior to the rights of any of your other creditors to seize or withhold funds owed to you for Transactions that we process through the Payment Services, and to debit or withdraw funds from any bank account or other payment method associated with your Account. Upon our request, you will execute and deliver any documents and pay any associated fees we consider necessary to create, perfect, and maintain a security interest in such funds (including, for example, the filing of a UCC-1 statement).

b) Furthermore, you expressly agree to pay all amounts owed to us by the due date. If we granted Credit Terms to you that were subsequently revoked, you agree to pay all such outstanding amounts immediately. Where possible, we will first attempt to collect or set-off balances in your Account from your use of the Payment Services or from funds that we hold a Reserve. However, we may collect any obligations you owe us under this Agreement from any Payout Account associated with your Account by deducting or setting-off the corresponding amounts from the funds owed to you through your use of the Payment Services, or through a Payment Card Transaction from any Payout Account identified in your Account. Your failure to pay amounts owed to us or to our affiliates under this Agreement shall be considered a breach of contract, and you will be liable for any costs we incur during collection in addition to the amount you owe. Collection costs may include, attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, any applicable interest, and any other related cost.

c) In certain circumstances, we may require a personal, parent or other guarantee (a “Guarantee”) from a user’s principal, owner, or other guarantor who is acceptable to us. A Guarantee consists of a legally binding promise by an individual or an entity to pay any amounts the user owes in the event that the user is unable to pay. If we require you to provide us with a Guarantee, we will specifically inform you of the amount of, and the reasons for the Guarantee. If you are unable to provide such a Guarantee when required, you will not be permitted to use the Payment Services.

d) If we grant Credit Terms to you, to the extent and limit of such Credit Terms, we will invoice you in accordance with RoadSync’s then current invoicing procedure. You agree that payment of all fees is due and payable upon receipt of invoice. If payment is not received (or if an invoice is not paid in full) on its due date, RoadSync will impose a late charge equal to the lesser of 1.5% per month or the maximum amount allowed by law, on the unpaid balance.

9. Errors and Corrections. You are solely and exclusively responsible for reviewing your Transactions and Transaction history, and for immediately notifying us in writing of any errors. We will investigate any reported errors, including any errors made by us or by Financial Service Providers, and attempt to rectify them by crediting or debiting the Payout Account. Your chance of recovering of funds you have lost due to a Transaction error will be very limited or even impossible if we did not cause the error, or if funds are no longer available in any Payout Account. We will work with you and our Financial Service Providers to correct a Transaction error in accordance with Network Rules; however, if you fail to notify us of a Transaction error to us for our review within 60 days after you discovered it, you waive your right to make any claim against us or our Financial Service Providers for any amounts associated with the Transaction error.

10. Abandoned Funds. If you leave any funds dormant in your Account and you do not give us instructions where to send them, we may be required by law to deem the funds to be abandoned by you, and to deliver them to various government agencies. To the extent required by law, we will attempt to provide you notice if we hold funds payable to you in your Account beyond the applicable dormancy period for abandoned property. If we are unable to contact you, we will treat the funds in your Account to be abandoned, and will deliver them to the appropriate government authority. We shall not be liable for any funds abandoned by you, or for any funds that were delivered to any government agency as the result of such abandonment.

11. Termination or Suspension. In addition to rights of suspension or termination set forth in any Network Rules, Payment Services with respect to Payment Cards may be terminated or suspended immediately if, in RoadSync’s or a Financial Service Provider’s reasonable judgment, (i) continued acceptance of Payment Cards is likely to expose the Financial Services Provider to financial loss or harm, (ii) changes in any applicable laws, rules or regulations by any governmental authority or other governing body with jurisdictional authority, or any formal or informal order, instruction or directive communicated to the Financial Services Provider would make it commercially impractical to continue offering Payment Cards or related services in a particular jurisdiction, (iii) any regulator or applicable regulation or statute requires the termination of the agreement between the Financial Services Provider and RoadSync, or (iv) a Financial Service Provider or Network suspends or terminates RoadSync’s ability to provide Payment Services due to your acts or omissions.

12. Glossary of Terms.

“Charge” means with respect a Transaction a credit or debit instruction to capture funds from an account that a Payor maintains with a bank or other financial institution.
“Clearing Accounts” means RoadSync’s pooled clearing bank accounts held with our Financial Service Providers.
“Credit Terms” means the terms for payment of Fees or amounts under this Agreement for a period different from the standard payment terms in this Agreement.
“Dispute” means an instruction initiated by a Payor with a Financial Services Provider or RoadSync to return funds for an existing Charge.
“NACHA” means the National Automated Clearinghouse Association.
“Network Rules” means the guidelines, bylaws, rules, regulations, technical specifications, procedures imposed by the Networks and related authorities, including without limitation those of the PCI Security Standards Council, LLC, the NACHA and Quest Operating Rules. Significant portions of the Network Rules are available at https://visa.com, https://www.mastercard.com, and https://www.americanexpress.com/merchantopguide.
“Networks” means entities that administer and promote Payment Cards, such as American Express Company, Inc. (“American Express”), DFS Services, LLC (“Discover”), MasterCard Worldwide (“MasterCard”) and Visa Inc. (“Visa”).
“Payout Account” means the bank account that you designate to us as part of your Account registration to receive transfers of funds as described in this Payment Processing Addendum.
“Payout Schedule” refers to the time it takes for us to initiate a transfer of funds from your designated Payout Account.

 

WEX CARD SALE PROCEDURES ADDENDUM

The following terms and conditions, including Exhibits A-1 and A-2, are part of your agreement with RoadSync.
Definitions. The Card Sale Procedures In addition to any terms defined in the Exhibits below, the following terms have the following meanings:
“Agreement” as used in the Card Sale Procedures means those Card Sale Procedures, WEX Technical Specifications and any other terms and conditions governing MERCHANT’S Card Sales.
“Approved Card Issuer” means an entity that has entered into an agreement with WEX to issue WEX-branded Cards and is the party that has a direct credit or prepaid card relationship with the fleet customer or Cardholder, and includes without limitation the WEX affiliates, WEX Bank and WEX Canada, Ltd.
“Card” or “Cards” means the charge cards, virtual card numbers, or other approved account access devices issued or serviced by either WEX INC., WEX BANK, or its respective subsidiaries and/or affiliates or any other Approved Card Issuer of the same; bearing the trademarks of WEX including Cards branded as EFS, Fleet One, Transnet, EFSTS, FP Solutions, and T-Chek, any related co-branded cards, and any additional OTR card brand that WEX may add to its networks. For the avoidance of doubt, Card includes any combination of WEX account number and other identifying information provided by a Cardholder that permits access to such Cardholder’s WEX account. Certain Card types that include the MasterCard trademark and are issued through WEX’s approved card issuers shall be subject to these Exhibits for all transactions that are settled and cleared through a WEX network and not through Mastercard. For the avoidance of doubt, MoneyCodes® and EFS Checks are types of “Cards” for the purposes of these Exhibits.
“Card Sale” means any transaction involving the use of any Card to pay any amount owing to MERCHANT from a Cardholder in respect of such Cardholder’s purchase of Product(s) from MERCHANT.
“Cardholder” means the business, person or other entity to which a Card is issued.
“Chargeback” means that a posted Card Sale has been disputed and the amount of such Card Sale will be deducted from the pending settlement in accordance with the provisions contained in the Card Sale Procedures.
“MERCHANT” has the same meaning as “you” or “Customer” in your agreement with RoadSync.
“MoneyCode®” means an instrument—in the form of a numeric code created by the card issuer, which may be recorded onto a paper draft or used electronically—that when coupled with a valid authorization code allows a Cardholder to access its account for cash or to use such code or draft for payment of Products.
“Products” means the products and services provided by MERCHANT to Cardholders.
“WEX” means WEX Inc. on its behalf and on behalf of its licensed issuers.
“WEX Technical Specifications” means WEX’s technical specifications regarding Card acceptance provided to MERCHANT, including without limitation requirements for both the point of sale equipment and the network host.
Compliance. MERCHANT agrees to comply with the “Card Sale Procedures”, attached and incorporated herein as Exhibits A-1 and A-2, and any WEX Technical Specifications. WEX reserves the right to amend, modify or supplement the Card Sale Procedures, the WEX Technical Specification or any rules and regulations governing acceptance of Cards. In addition, MERCHANT represents and warrants the following as to each Card Sale: (i) such Card Sale represents a bona fide sale of products or services sold and delivered in the ordinary course of business for the total sales price reported by MERCHANT to WEX; (ii) MERCHANT has performed all of MERCHANT’s obligations to the Cardholder in connection with the Card Sale; (iii) the Card Sale involves no sale or transaction other than the one described therein; (iv) with respect to any discount that MERCHANT specify for any single Cardholder or group of Cardholders, MERCHANT have properly and accurately disclosed the discount in advance to that Cardholder or group of Cardholders; and (v) all electronically- telephonically- or hardware-generated invoices, receipts, records or memoranda of sales are in fact genuine and not forged or unauthorized. MERCHANT is solely responsible for, and RoadSync and WEX have no responsibility for, the nature, quality, quantity and merchantability of the products or services provided or to be provided to Cardholders. MERCHANT shall deal directly with its Cardholders with respect to any claim, complaint, or adjustment regarding MERCHANT’s products and services, and shall deal with its Cardholders reasonably and courteously in resolving or attempting to resolve such claims, complaints or adjustments.
Usage Information. WEX may collect certain information through MERCHANT’s use of the Payment Services for the purposes of (i) monitoring MERCHANT’s compliance with the terms of this Agreement and Network Rules, (ii) maintaining and supporting its network and services, (iii) detecting and preventing fraud, and (iv) protecting its business, its networks and Cardholders. WEX may also use and disclose statistics and data collated or generated by it as a result of processing Card Sales hereunder subject to applicable law. By accessing, using, and providing information to or through WEX’s networks, MERCHANT consent to the collection and uses described above in this Section.

Termination or Suspension. In addition to rights of suspension or termination set forth in any Network Rules, WEX may terminate or suspend its Payment Services with respect to Cards immediately if, in its reasonable judgment, (i) continued acceptance of Cards is likely to expose WEX to financial loss or harm, (ii) changes in any applicable laws, rules or regulations by any governmental authority or other governing body with jurisdictional authority, or any formal or informal order, instruction or directive communicated to WEX would make it commercially impractical to continue offering Cards or related services in a particular jurisdiction, or (iii) any regulator or applicable regulation or statute requires the termination of the agreement between WEX and RoadSync.

EXHIBIT A-1

CARD SALE PROCEDURES

(WEX Network Cards Only)

These Card Sale Procedures, in addition to the WEX Technical Specification and any other rules and regulations published by WEX governing the processing and acceptance of WEX issued or serviced cards shall apply in the context of WEX-branded networks only.  For WEX OTR Card Sale Procedures, please refer to Exhibit A-2.

1.1 METHOD OF TRANSMISSION OF CARD SALES TO WEX

  1. MERCHANT shall have the necessary equipment to permit the electronic acceptance of the Card at its Distribution Sites including but not limited to their point of sale equipment and networking services.
  2. MERCHANT shall collect and transmit the Card Sale data in accordance with the WEX Technical Specification. MERCHANT shall obtain from WEX the necessary acceptance certification for its network and equipment that will be used for processing sales transaction.

1.2  MANUAL CARD SALE PROCEDURES

  1. If MERCHANT is unable to obtain an authorization for a Card Sale due to the communication facilities for WEX are not operable, MERCHANT must capture the sales transaction through the use of a suitable imprinter to legibly imprint the Cards on the sales slip and requiring the Cardholder to sign the sales receipt (“Manual Card Sale”).
  2. MERCHANT shall obtain all information required in Section 1.3.A below. MERCHANT shall take all commercially reasonable efforts to protect Manual Card Sale data from fraud or misuse.
  3. C. MERCHANT shall not submit paper Manual Card Sales directly to WEX for processing unless prior approval is first obtained. In the event that WEX has agreed to accept such Manual Card Sales, WEX reserves the right to assess the Manual Transaction Fee set forth in Exhibit B. 
  4. In the event that MERCHANT allows a Manual Card Sale without first obtaining an authorization from WEX, the MERCHANT may still accept the Card for payment, however shall contact WEX as soon as communication with the WEX authorization facilities can be re-established.
  5. When submitting a Manual Card Sale for processing, MERCHANT shall include the authorization or other approval code it received from WEX when submitting the completed Card Sale to WEX for processing.
  6. WEX limits its liability for Manual Card Sales made in accordance with Section D above to $50.00 per transaction and $500 per day per Distribution Site. WEX reserves the right to change these limits from time to time. Manual Card Sales that exceed these limits shall be at the credit risk of MERCHANT. 

1.3 MINIMUM CARD SALE PROCESSING REQUIREMENTS

  1. Card Sale data sent to WEX shall include: account number, vehicle number, driver identification number, sales date, sales time, site identification number, authorization number, product code(s), quantity, total sales amount (in dollars), odometer, ticket number and any other information as WEX and MERCHANT may mutually agree upon.
  2. All Card Sales require an authorization or approval from WEX. MERCHANT shall request such authorization from WEX for the total Card Sale amount prior to sending the Card Sale to WEX for processing.

C. WEX does not provide pre-authorizations, nor does it place available credit on “hold”.  If MERCHANT calls prior to completion of the services being provided to the Cardholder, MERCHANT still needs to obtain an

authorization number upon completion of the services or Card Sale to obtain payment from WEX. 

  1. An authorization or other approval code is not a guarantee that MERCHANT will receive payment. WEX does not provide payment to merchants based upon receipt of information during the authorization process.  MERCHANT is still required to submit the completed Card Sale, including the authorization or other approval code, to WEX.  Obtaining an authorization without submitting the completed Card Sale to WEX may result in non-payment by WEX for such Card Sale.
  2. MERCHANT shall not accept payment through use of an expired Card or when advised upon authorization inquiry, that the Card is not to be honored.
  3. MERCHANT shall never make a Card Sale when MERCHANT believes or has reason to believe that the Card may be counterfeit or stolen or the Card Sale is in any way fraudulent or otherwise suspicious.
  4. MERCHANT shall maintain a record of all information required in Section 1.3.A above.
  5. Upon request, MERCHANT shall provide the Cardholder with a copy of the transaction receipt documenting the Card Sale. Such receipt shall not include the full account number or driver identification number printed on the receipt.
  6. If the Card Sale is not an island card reader transaction (“pay-at-the-pump”), MERCHANT shall require the Cardholder to sign the transaction receipt unless the total for the Card Sale is less than $25.
  7. Any Card Sale data received by WEX from MERCHANT by the following times shall be treated as having been received on the next business day (the “posting date”). These times are governed by card processing platform and may change with notice to MERCHANT.

 

WEX branded only cards:                          5:00 p.m. Eastern Time.

 

  1. MERCHANT shall not divide the price of goods and services purchased in a single transaction among two (2) or more transaction receipts for billing to WEX.
  2. MERCHANT must not submit Card Sales until Products are delivered.
  3. A Card must be present at the time of purchase. In the event that MERCHANT processes a Card Sale when the Card is not presented, MERCHANT bears the risk of the sale being charged back.
  4. MERCHANT shall maintain a record of the Card Sale, including all sales data required, for a period of one (1) year. Upon the reasonable request of WEX, such records shall be provided to WEX within thirty (30) calendar days of WEX’s request. Failure to provide the requested record will result in a charge back of the Card Sale to MERCHANT.

1.4 DATA INPUT AND TRANSMISSION

  1. MERCHANT is responsible for the data entry of Card Sale information by its personnel, or representatives. All data shall meet the prevailing WEX Technical Specification and shall be in good and usable condition.

B. If information pertaining to any Card Sale is garbled in transmission such that part or all of the record is likely to vary from what MERCHANT transmitted, WEX may advise MERCHANT of the suspected inaccuracy and request retransmission of the record or other appropriate confirmation.  WEX may, with notice to MERCHANT, withhold payment

for such Card Sales until the record is retransmitted or MERCHANT provides other appropriate confirmation. 

  1. If MERCHANT has not provided WEX with required information or that WEX needs to interpret, verify, or validate a Card Sale, WEX may, withhold payment for such Card Sale until MERCHANT sends WEX the necessary information. WEX may make appropriate adjustments in its settlements with MERCHANT to reflect the receipt or correction of any such Card Sale information. WEX shall provide notice to MERCHANT of any Card Sales that it is not able to process due to errors or missing information through its daily settlement reports.
  2. MERCHANT shall submit all Card Sales to WEX for processing within thirty (30) days of the transaction date. WEX may accept transactions up to one hundred and twenty (120) days from the date of the transaction for processing and billing to the fleet, however, reserves the right to chargeback any such transaction that is disputed by a fleet customer.
  3. MERCHANT is responsible for the correction of all Card Sales that have been identified with errors and will not be processed by WEX within one hundred and twenty (120) days from the reported error processing date. MERCHANT can elect in writing to have WEX correct the errors on MERCHANT’s behalf based upon information provided by MERCHANT. Such services will be performed at WEX’s then prevailing rate.
  4. MERCHANT shall review any reports provided by WEX regarding the Card Sales promptly upon receipt and shall notify WEX within sixty (60) days of the date of the report as to any mistakes contained therein. Failure to do so shall be deemed MERCHANT’s acceptance of the report as complete and satisfactory performance of WEX under this Agreement unless the performance issue was not evident from the report.
  5. MERCHANT authorizes WEX to refer to a default price per gallon table, which may be used when the calculated price per gallon for the transaction falls outside of WEX’s acceptable range of pricing which is updated from time to time by WEX based upon market conditions. The table is based upon average price per gallon data collected from all merchants who accept WEX Cards. 
  6. MERCHANT authorizes WEX to refer to the authorization log to obtain information to complete the processing of transactions in the event that errors are detected by WEX during processing. It is understood by the parties that the information contained in the authorization log is the “actual, real-time” information received by WEX from the MERCHANT at the time the use of the charge card was authorized.  If sufficient information is not available in the authorization log to correct any errors in the transaction file received by WEX from MERCHANT, then these transactions will be returned back to MERCHANT for correction. 
  7. Use of the defaults in Section 1.4.E and 1.4.F above does not affect the total transaction value submitted for settlement and is only used to facilitate reporting to fleet customers. It does not relieve MERCHANT of its requirements to provide accurate and complete data as set forth in 1.3.A for Card Sales.
  8. If WEX needs to perform additional research on sales transmitted by MERCHANT to correctly post transactions that were incomplete, insufficient or erroneous, WEX reserves the right to charge the Research Fee set forth in the fee schedule.

1.5  DATA SECURITY

MERCHANT shall have in place appropriate administrative, technical and physical safeguards to protect against anticipated threats or

hazards to the security, confidentiality or integrity of Card and Card Sale information.  In connection with such safeguards, MERCHANT shall implement, maintain and monitor a security program with respect to its services, facilities, systems and networks, consistent with applicable law, to prevent unauthorized access to and disclosure and use of information about Cards and Card Sales.  In addition to its obligations above, MERCHANT shall, at all times during the Term, comply with the security standards of the PCI Standards Council related to its networks, facilities and operations, including without limitation Section 9.9 of such requirements relating to controls to prevent skimming devices from being attached to terminals at which Cards are accepted, and shall provide to WEX, on an annual basis, evidence of its compliance with the PCI DSS requirements.  WEX reserves the right to establish velocity limits required for its card sales at MERCHANT’s Distribution Sites which may be updated and changed from time to time.  These velocity limits include, but are not limited to:

  1. Require pump shut off for all transactions over $100.00;
  2. Require all Card Sales to be completed in-store and pay at pump authorization is disabled, if WEX identifies a specific Distribution Site(s) which may be subject to higher than average card compromise activity (source of skimming or allowing white plastic sales to occur) based on benchmark of merchants similarly situated in their geographic location.

1.6 CHARGEBACKS

  1. Chargebacks shall be made for (1) Card Sales that are disputed and (i) the required authorization was not obtained, (ii) were for unauthorized Products, (iii) were fraudulently made by an employee of MERCHANT or (iv) the WEX Card Sale Procedures were not followed, or (2) where MERCHANT was not in compliance with its obligations under this Agreement. MERCHANT shall remain liable for all outstanding Chargebacks.
  2. Any obligation to pay a Chargeback pursuant to this Agreement shall be unconditional and shall be waived, released or affected by any settlement, extension, compromise of forbearance or other agreement made or granted by WEX with or to any Cardholder or obligor. Failure to issue a Chargeback with knowledge of a breach of warranty or other defect shall not be deemed a waiver of any of WEX’s rights with respect to such a Card Sale. WEX will expend normal business efforts to remedy against Cardholders and shall not be required to exhaust its remedies against Cardholders or others as a condition precedent to requiring performance by MERCHANT of their obligations hereunder.

EXHIBIT A-2

WEX OTR CARD SALE PROCEDURES

(WEX OTR Cards Only)

These Card Sale Procedures, in addition to the WEX Technical Specification and any other rules and regulations published by WEX governing the processing and acceptance of WEX issued or serviced cards shall apply.  The following are the Card Sale Procedures for Cards branded as EFS, Fleet One, Transnet, EFSTS, FP Solutions, and T-Chek, and any additional OTR card brand that WEX may add to its networks (“WEX OTR Cards”).  For the Card Sale Procedures for WEX Universal and WEX Crossroads Cards, please refer to Exhibit A-1.

  • METHOD OF TRANSMISSION OF CARD SALES TO WEX
  1. MERCHANT shall have the necessary equipment to permit the electronic acceptance of the Card including but not limited to point of sale equipment and networking services.
  2. MERCHANT shall collect and transmit the Card Sale data in accordance with the WEX Technical Specification, as applicable to the relevant Card. MERCHANT shall obtain from WEX the necessary acceptance certification for its network and equipment that will be used for processing sales transactions.
  • MANUAL CARD SALE PROCEDURES
  1. If MERCHANT is unable to obtain an electronic or digital authorization through the point of sale equipment, MERCHANT may contact WEX to obtain authorization for the transaction via voice authorization (“Voice Authorization Transaction”).
  2. MERCHANT should not accept a Manual Card Sale without obtaining an authorization code from WEX. If MERCHANT accepts a Card for payment without receiving an authorization code from WEX, MERCHANT does so at its own risk, and there is no guarantee that WEX will accept the charge and settle the transaction.
  3. In the event that MERCHANT allows a Voice Authorization Transaction—unless such transaction is necessitated by the failure of WEX’s communication facilities—WEX reserves the right to assess the Voice Authorization Fee set forth in the fee schedule attached.

1.3   MINIMUM CARD SALE PROCESSING REQUIREMENTS

  1. Card Sale data sent to WEX shall include: account number, vehicle number, driver identification number, sales date, sales time, site identification number, authorization number, product code(s), quantity, total sales amount (in dollars), odometer, ticket number and any other information that WEX may require in writing.
  2. All Card Sales require an authorization or approval from WEX. MERCHANT shall request such authorization from WEX for the total Card Sale amount prior to sending the Card Sale to WEX for processing.
  3. WEX does not provide payment to merchants based upon receipt of information during the authorization process. MERCHANT is still required to submit the completed Card Sale, including the authorization or other approval code, to WEX. Obtaining an authorization without submitting the completed Card Sale to WEX may result in non-payment by WEX for such Card Sale.
  1. MERCHANT shall not accept payment through use of a Card after the card’s expiration date (if any) or when advised upon authorization inquiry that the Card is not to be honored.
  2. MERCHANT shall maintain for one (1) year a record of all information required in Section 1.3.A above. Upon reasonable request of WEX, such records shall be provided to WEX within Seven (7) calendar days of WEX’s request. Failure to provide the requested record may result in a charge back of the Card Sale to MERCHANT if such failure results in WEX not being able to collect from the Cardholder.
  3. Upon request, MERCHANT shall provide the Cardholder with a copy of the transaction receipt documenting the Card Sale. Such receipt shall not include the full account number or driver identification number printed on the receipt.
  4. If the Card Sale is not an island card reader transaction (“pay-at-the-pump”), MERCHANT shall require the Cardholder to sign the transaction receipt in all cases and MERCHANT must record valid driver’s license number or Government issued ID number, Cardholder’s full name and State must be legibly printed on the invoice. Cardholder must be present when receiving authorization of transaction
  5. Any Card Sale data received by WEX from MERCHANT by 11:59 p.m. Central time shall be treated as having been received on that day (the “posting date”).

1.4   DATA INPUT AND TRANSMISSION

  1. MERCHANT is responsible for the data entry of Card Sale information by its personnel, or representatives. All data shall meet the prevailing WEX Technical Specification and shall be in good and usable condition.
  2. If information pertaining to any Card Sale is garbled in transmission such that part or all of the record is likely to vary from what MERCHANT transmitted, WEX may advise MERCHANT of the suspected inaccuracy and request retransmission of the record or other appropriate confirmation. WEX may, with notice to MERCHANT, withhold payment for such Card Sales until the record is retransmitted or MERCHANT provides other appropriate confirmation.
  3. If MERCHANT has not provided WEX with required information or if WEX needs to interpret, verify, or validate a Card Sale, WEX may, withhold payment for such Card Sale until MERCHANT sends WEX the necessary information. WEX may make appropriate adjustments in its settlements with MERCHANT to reflect the receipt or correction of any such Card Sale information. WEX shall provide notice to MERCHANT of any Card Sale that it is not able to process due to errors or missing information through its daily settlement reports.

D.              MERCHANT shall submit all Card Sales to WEX for processing within thirty (30) days of the transaction date. WEX may accept transactions up to forty-five (45) days from the date of the transaction for processing and billing to the fleet, however, WEX

    reserves the right to chargeback any such transaction that is disputed by a fleet customer.

    1.5   DATA SECURITY

    MERCHANT shall have in place appropriate administrative, technical and physical safeguards to protect against potential threats or hazards to the security, confidentiality or integrity of Card and Card Sale information.  In connection with such safeguards, MERCHANT shall implement, maintain and monitor a security program with respect to its services, facilities, systems and networks, consistent with applicable law, to prevent unauthorized access to and disclosure and use of information about Cards and Card Sales.  In addition to its obligations above, MERCHANT shall, at all times during the Term, comply with the security standards of the PCI Standards Council related to its networks, facilities and operations, including without limitation Section 9.9 of such requirements relating to controls to prevent skimming devices from being attached to terminals at which Cards are accepted, and shall provide to WEX on request, on an annual basis, evidence of its compliance with the PCI DSS requirements.  WEX reserves the right to establish velocity limits and similar precautions required for its card sales at MERCHANT’s sites, which limits and precautions may be updated and changed from time to time.  These velocity limits and precautions may include, but are not limited to:

    1. Require pump shut off for all transactions over an amount provided by WEX;
    2. Disable pay-at-pump authorization and instead require all Card Sales to be completed in-store, if WEX identifies a specific location that may be subject to higher than average card compromise activity (source of skimming or allowing white plastic sales to occur) based on benchmark to merchants similarly situated in its geographic location.

    1.6   CHARGEBACKS

    1. Chargebacks shall be made for (1) Card Sales that are disputed and (i) the required authorization was not obtained, (ii) were for unauthorized Products, (iii) were fraudulently made by an employee of MERCHANT or (iv) the WEX Card Sale Procedures were not followed, or (2) where MERCHANT was not in compliance with its obligations under this Agreement. MERCHANT shall remain liable for all outstanding Chargebacks.
    2. Any obligation to pay a Chargeback pursuant to this Agreement shall be unconditional and shall be waived, released or affected by any settlement, extension, compromise of forbearance or other agreement made or granted by WEX with or to any Cardholder or obligor. Failure to issue a Chargeback with knowledge of a breach of warranty or other defect shall not be deemed a waiver of any of WEX’s rights with respect to such a Card Sale. WEX will expend normal business efforts with respect to remedies against Cardholders and shall not be required to exhaust its remedies against Cardholders or others as a condition precedent to requiring performance by MERCHANT of its obligations hereunder.

    1.7   MONEYCODES®  

    WEX customers may present a MoneyCode® issued by WEX for the purchase of Products or for cashing.  Any paper draft associated with a MoneyCode should be filled out completely and include an authorization number and other required code.  MERCHANT must obtain or verify this code using the POS device, or by calling the customer service number listed on the paper draft or the back of Cardholders’ actual Card.  MERCHANT shall follow the verification

      procedures provided by WEX prior to accepting or cashing the MoneyCode.  Please note that even if there is an authorization number included on a paper draft at the time presented to you, you are still required to validate the authorization number prior to accepting or cashing the MoneyCode.  Failure to validate an authorization number properly might allow improper payment to an unauthorized individual and can lead to dishonor of the MoneyCode.

      1.8   MOBILE FUELING

      For mobile fueling MERCHANTs only:  MERCHANT must provide the approved data file containing the transaction data within 24 hours of the fueling service transaction. If errored transactions are not corrected and re-submitted to WEX within 10 days, it is the responsibility of the MERCHANT to contact the Cardholder to obtain approval to process the transactions.  It is the responsibility of the MERCHANT to verify that all transactions have processed successfully using WEX-provided reporting communication methods (online application, email alerts, files, reports, etc.) before requesting authorization for previously-submitted transactions.  Duplicate transaction(s) will be voided and deducted from the next ACH settlement/payment.