Checkissuing Terms of Service
On behalf of the whole team at Checkissuing, we want to thank you for this opportunity to be of service to you. These Terms of Service lay out our relationship and how we provide the various services. Of course we welcome any questions that you may have.
1. Your relationship with Checkissuing Inc.
You must be at least eighteen (18) years of age and have the legal capacity to form a legal and binding contract in order to use the Services provided by Checkissuing.
2. Accepting the Terms
In order to use the Services, you must first agree to this Agreement. You may not use the Services if you do not accept and agree to accept the terms of this Agreement. You can accept the Agreement by: (A) clicking to accept or agree, where this option is made available to you by Checkissuing in the user interface for any Service; or (B) by actually using the Services provided by Checkissuing. In this case, you understand and agree that Checkissuing will treat your use of the Services as acceptance of the Agreement from that point onwards. You may not use the Services if (a) you are not of legal age to form a binding contract with Checkissuing, or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services. Before you continue, you should print off or save a local copy of the Agreement for your records.
3. Provision of the Services by Checkissuing
Checkissuing has subsidiaries and affiliated legal entities around the world (“Subsidiaries and Affiliates”). Sometimes, these companies will be providing the Services to you on behalf of Checkissuing itself. You acknowledge and agree that Subsidiaries and Affiliates will be entitled to provide the Services to you. Checkissuing is constantly innovating in order to provide the best possible experience for its users and for this reason you acknowledge and agree that the form and nature of the Services which Checkissuing provides may change from time to time without prior notice to you. Checkissuing reserves the right to set limits on transactions based on resource limitations and systems availability. Use of the Services by you
You are authorized to access the Site for the sole purpose of viewing and using the Services on your computer or device.
In order to access certain Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to Checkissuing will always be accurate, correct and up to date. You agree to use the Services only for purposes that are permitted by (a) the Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions
You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Checkissuing, unless you have been specifically allowed to do so in a separate agreement with Checkissuing. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the Services. You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). Unless you have been specifically permitted to do so in a separate agreement with Checkissuing, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose. You agree that you are solely responsible for (and that Checkissuing has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Checkissuing may suffer) of any such breach.
You may not decompile, disassemble, rent, lease, loan, sell, sublicense, or create derivative works from the Site or the Services. You may not use any robot, spider, or other automatic device or manual process to monitor or copy the Site or its content without our prior written permission. Your failure to abide by these conditions will immediately terminate your right to access the Site or to use the Services and may violate our intellectual property rights or the intellectual property rights of third parties. We reserve the right to prosecute intellectual property violations to the fullest extent permissible by law.
4. Services provided by Checkissuing
ACH/Check21 related services Origination of Transactions. Subject to the terms and conditions of this Agreement, Checkissuing agrees to act as your payment facilitator for ACH and/or Check21 debit, credit and return transactions (“Transactions”) originated or received on your behalf. Checkissuing agrees to comply by the Operating Rules of NACHA and any and all applicable Federal regulations in connection with your origination and receipt of Transactions through Checkissuing over the Federal Reserve network or similar sub network. Compliance. You agree to comply with all applicable NACHA’s ACH Rules, other NACHA requirements, Federal Reserve requirements and U.S. law governing the submission and retrieval of ACH Transactions. Security. You agree to abide by the Security Requirements regarding information security of the fund’s transfers. Investigations. You will assist Checkissuing in all investigations of transaction(s) in a timely manner and will provide to Checkissuing any and all assistance needed to track, pursue and enforce legal actions against any entity engaging in or suspected of engaging in fraud.
We may require Services to be paid for on a recurring basis or on an as-used basis. We have the right to change, delete, discontinue or impose conditions on the Services or any feature or aspect of the Services. By signing up for a Service you agree to pay us the fees as provided to you or as otherwise agreed in writing. The Services may be charged on a per usage basis.
Unless otherwise agreed in writing, fees will be charged every week until cancelled in accordance with this Agreement. You may cancel a Service only upon the expiration of the Service term as may be prescribed in the order for said Services. If you cancel a Service prior to the expiration, you will be responsible for the Service fees for remainder of the term. Checkissuing reserves the right to change Service fees upon thirty (30) days’ advance notice. Your continued use of the Services after notice of a change to the fees will constitute your agreement to such changes.
5. Third Party Sites
The website may contain links to websites we do not operate, control, or maintain (“Third-Party Websites”). We do not endorse any Third-Party Websites, and we make no representation or warranty in any respect regarding any Third-Party Websites. Any links to Third Party Websites on the Site are provided solely for your convenience. We are not responsible for any errors, omissions or representations on any Third-Party Websites. If you do access any Third-Party Websites, you do so at your own risk and waive any and all claims against us regarding the Third-Party Websites or our links thereto.
6. ACH Partner TOS Disclosures
You understand that Dwolla is a third-party service provider and is responsible for the provision of their services to you. Checkissuing is not responsible for any services provided by Dwolla. Checkissuing reserves the right to change service providers from Dwolla to another third-party service provider with reasonable notice to you. If we do change to another third-party service provider, we will transfer your payment and other data to the new service provider.
7. Our Role and Your Responsibilities
Agent of Payee: Checkissuing provides hosting and data processing services for our users. Checkissuing is a Payment Service Provider (“PSP”), not a bank, money transmitter, or Money Services Business (“MSB”), and we do not offer banking or MSB services as defined by the United States Department of Treasury. Specifically, Checkissuing acts as your (i.e. Payee’s) agent in so far as collecting payments/funds from Payors. Checkissuing will inform you when it has collected funds/payments from your Payors, and you agree to credit your Payors’ accounts at the time Checkissuing provides such confirmation. Should the Money Transmitter Laws in your State of Residence not permit agent of Payee exemption to Checkissuing to accept payments on your behalf you shall indemnify Checkissuing.com from any harm directly as a result of any liability incurred as a result of not being able to freely transact as agent of Payee.
As a PSP, Checkissuing collects, analyzes and relays information generated in connection with payments to and from our users. You authorize Checkissuing to provide this information to one or more Functional Service Provides (“FSPs”) that Checkissuing partners with, in order for Checkissuing to facilitate payments from/to our users through the various payment networks (“Network”, “Networks”), including ACH and Check21, as applicable. As a result, Checkissuing through its FSPs conducts the settlement of Network transactions from/to our users. Checkissuing does not at any point hold or own funds in connection with the Service, nor does Checkissuing transmit money or monetary value. In connection with the Service, Checkissuing does not actually or constructively receive, take possession of or hold any money or monetary value for transmission, and does not advertise, solicit or hold itself out as receiving money for transmission. In order to act as a PSP, Checkissuing must enter into agreements with Networks and FSPs. You are not a third-party beneficiary of these agreements. Each of the Networks and FSPs is a third-party beneficiary of this Agreement and has beneficiary rights, but not obligations, and may enforce this Agreement against you. Some of these third parties may require a direct agreement with you. If you are required to enter into such an agreement and, if you decline to do so, we may suspend or terminate your Account.
If you are using the Checkissuing Recurring Payments or Invoices feature, you agree that it is your responsibility to comply with applicable laws, including the Electronic Funds Transfer Act (Regulation E), including by capturing your customers’ agreements to be billed on a recurring basis. You may not resell any hardware provided to you by Checkissuing or a third party for use with the Service. Notwithstanding Checkissuing’s assistance in understanding the Operating Regulations and Network Rules, you expressly acknowledge and agree that you are assuming the risk of compliance with all provisions of the Operating Regulations and Network Rules, regardless of whether you have possession of those provisions. We can provide you with applicable provisions of the Network Rules upon your request. Bank Account. Checkissuing is authorized to debit funds from the provided bank account in accordance with the invoice sent to you each week. This authorization is to remain in force until the account is cancelled or until Checkissuing is notified in writing of a new bank account for use in debing. This account will be known as “Bank Account” The amount of money in the Bank Account, shall be enough to cover the total volume of transactions initiated by you during the time period those transactions are supposed to settle. Should Checkissuing elect to set off a certain amount against your obligations, known as “Percentage or Amount” Checkissuing will notify you prior to setting up a Percentage or Amount. Choice of Settlement Depending on the network chosen for settlement e.g. ACH and/or Check21 and/or VISA/Mastercard OCT, either by you or by Checkissuing, Checkissuing can and will create a paper version of the Check being used for payment. This paper Check can and will be stored in a vault either onsite or offsite Checkissuing’s premises. The length of storage of this original Check will be in compliance of statutory regulations and guidelines as applicable.
8. User Content and Conduct
When you post content and information to the Site or in connection with the Services (“User Content”), you represent and warrant to us that (1) you own or have rights to use the User Content, (2) the posting of the User Content does not violate any rights of any person or entity, and (3) you have no agreement with or obligations to any third party that would prohibit your use of the Site or Services in the manner so used. If you submit User Content to us for publishing, you agree that you have the ability to assign the copyright of such User Content to us. You agree to pay all royalties, fees, and any other monies owing to any person or entity by reason of any User Content posted by you to the Site or through the Services.
By posting User Content, you give us and our affiliates right to use and display such User Content in such manner as is necessary to provide the Services to you; provided that this right shall not give us any ownership or other rights in the User Content.
You agree not to use the Site or the Services to take any action or actions that (including with respect to any User Content): (1) are patently offensive in any manner (as determined in our sole discretion), (2) involve commercial activities without our prior written consent, such as contests or sweepstakes, (3) are contrary to our public image, goodwill, or reputation, (4) infringe on our or any third party’s intellectual property rights, (5) violate any law or any third party’s legal rights, or (6) “frame” or “mirror” any part of the Site without our prior written consent.
As a user of the Site, you agree not to:
- Systematically retrieve data or other content from the Site to create or compile. directly or indirectly, a collection, compilation, database, or directory without written permission from us.
- Make any unauthorized use of the Site. including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email or creating user accounts by automated means or under false pretenses.
- Use a buying agent or purchasing agent to make purchases on the Site.
- Use the Site to advertise or offer to sell goods and services.
- Circumvent, disable, or otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or the Content contained therein.
- Engage in unauthorized framing of or linking to the Site.
- Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
- Make improper use of our support services or submit false reports of abuse or misconduct.
- Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots. or similar data gathering and extraction tools.
- Interfere with. disrupt, or create an undue burden on the Site, networks or any connected services.
9. Fees, Taxes and Fines.
You shall pay Checkissuing the fees listed on its primary website as of the date of this Agreement. If any Fees are due from you under this Agreement, they shall be debited by Checkissuing on a daily, weekly or monthly basis from your Bank Account.
Fines/Charges. You are responsible for any and all Federal Reserve, ACH network NACHA fees or fines and/or penalties that may be assessed against you or Checkissuing related to the origination of your Transactions by and/or the use or misuse of the ACH network by you hereunder, which may be debited by Checkissuing from the Funding Account or another account designated by you.
This agreement comes into force when you first use Checkissuing’s Services and will remain in force as long as you continue to use Checkissuing’s Services. It will remain in force for a minimal of 1 year from the date of the last transaction originated by you and will continue to stay in effect as long as Services are being used.
Termination for Compliance, Safety and Soundness, Change of Control or Cause. Checkissuing may terminate this Agreement upon written notice in the event that you: (i) breach any material term or condition of this Agreement; (ii) become the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) become the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors. Notwithstanding anything to the contrary in this Agreement, Checkissuing may at its sole discretion terminate this Agreement immediately and without notice in order to ensure compliance with law and/or to assure its regulators of the safety and soundness of its operations.
Effect of Termination. The termination or expiration of this Agreement will not affect the rights of either party against the other which have accrued on or prior to the date of such termination or expiration, nor any provisions expressed to survive such termination or expiration. Unless this Agreement is terminated by Checkissuing for compliance, safety and soundness, change of control or cause, as set forth above, or as a result of an order or threatened order by Checkissuing’s banking regulators to cease and desist from providing payment processing services to you, or as a result of Checkissuing’s Board of Directors, upon written advice of Checkissuing’s counsel, electing to terminate this Agreement to ensure compliance with law and/or assure its regulators of the safety and soundness of its operations, Checkissuing will give you a minimum of 30 day notice to download any and all transactional data.
Checkissuing imposes certain transaction limits on you, including a transaction value limit and other “time period” limits e.g. daily, weekly or monthly limits. You will be able to request a change to the underwriting limits in a process agreed upon between you and Checkissuing. Your underwriting limits will be set, and can be revised at any time, by Checkissuing at its sole discretion.
12. Your passwords and account security
You agree and understand that you are responsible for maintaining the confidentiality of passwords or PIN associated with any account you use to access the Services. Accordingly, you agree that you will be solely responsible to Checkissuing for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Checkissuing immediately.
13. Privacy and your personal information
14. Proprietary rights
You acknowledge and agree that Checkissuing (or Checkissuing’s licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by Checkissuing and that you shall not disclose such information without Checkissuing’s prior written consent. Unless you have agreed otherwise in writing with Checkissuing, nothing in the Agreement gives you a right to use any of Checkissuing’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. If you have been given an explicit right to use any of these brand features in a separate written agreement with Checkissuing, then you agree that your use of such features shall be in compliance with that agreement, any applicable provisions of the Terms, and Checkissuing’s brand feature use guidelines as updated from time to time. These guidelines can be requested by contacting Checkissuing.
15. Electronic Signatures and Notices
Certain activities on the Services may require you to make an electronic signature by clicking the appropriate buttons to accept the terms of this Agreement as well as supplemental orders or other agreements that you may enter into with Checkissuing. You understand and accept that an electronic signature has same legal rights and obligations as a physical signature.
By accepting the terms of this Agreement, you agree that we may provide you any and all required notices electronically through your Account or other electronic means. You agree that we are not responsible for any delivery fees charged to you as a result of your receipt of our electronic notices.
16. Liability; Limitations On Liability; Indemnity
Checkissuing shall be responsible only for performing the Services expressly provided for in this Agreement and any related order or supplemental agreement and shall be liable only for its gross negligence in performing those services. Checkissuing shall not be responsible for your acts or omissions or alleged acts or omissions (including without limitation the amount, accuracy, timeliness of transmittal or due authorization of any Transaction effected by you) or those of any other person, including without limitation any Federal Reserve Financial Institution or transmission or communications facility, any receiver or Receiving Depository Financial Institution (“RDFI”) (including without limitation the return of a Transaction by such receiver or RDFIs), and no such person shall be deemed Checkissuing’s agent. You agree to indemnify Checkissuing against any and all loss, liability, cost or expense (including Checkissuing’s attorneys’ fees, court costs and expenses) resulting from any claim of any person that Checkissuing is responsible for any act or omission or any alleged act or omission of you. In no event shall Checkissuing be liable for any consequential, special, punitive or indirect loss or damage which you may incur or suffer in connection with this Agreement, including losses or damages from subsequent wrongful dishonor resulting from Checkissuing’s acts or omissions pursuant to this Agreement. Checkissuing shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of transmission, or communication facilities, equipment failure, war, emergency conditions or other circumstances beyond Checkissuing’s control. In addition, Checkissuing shall be excused from failing to transmit or delay in transmitting a Transaction if such transmittal would result in Checkissuing’s having exceeded any limitation upon its intra-day net funds position established pursuant to Federal Reserve guidelines or if Checkissuing’s otherwise violating any provision of any risk control program of the Federal Reserve or any rule or regulation of any other U.S. Governmental regulatory authority. You shall indemnify and hold Checkissuing, its employees, officers, directors, agents and representatives harmless of and from any and all losses suffered or incurred by Checkissuing in connection with any completed, failed or misdirected Transaction; your use or alleged misuse of the ACH system and/or fines assessed against Checkissuing or you in connection therewith; losses resulting out of the breach or alleged breach by you, including the failure to pay any reversed or failed Transactions that are returned to you by Checkissuing or that, pursuant to applicable NACHA ACH Rules or Federal Reserve requirements, should have been returned by you ; breach by you of any of your representations, warranties or agreements under this Agreement or arising from an act or omission by you that violates any NACHA ACH Rule, Federal Reserve requirement or applicable law; or arising out of or relating to any error or mistake by you or any third party involved in processing Merchant Transactions. You shall not be obligated to indemnify, hold harmless or reimburse Checkissuing for any such losses, claims, damages, expenses or liabilities to the extent that the same are the direct result of the gross negligence or willful misconduct of Checkissuing. In addition to other remedies available to Checkissuing pursuant to this Agreement or available under law or in equity, you shall defend and indemnify Checkissuing from and against, and hold it harmless from all allegations, suits, claims, actions, legal proceedings, counterclaims, and demands of any kind or nature and all reasonable costs incurred by Checkissuing in connection therewith (individually a “Claim” and collectively “Claims”) which Claims arise from or result by reason of (i) any inaccuracy in, breach or alleged breach of any of the representations or warranties made by you pursuant to this Agreement; (ii) your refusal or failure of to fully and timely perform in accordance herewith any of its warranties, agreements, responsibilities, obligations or duties to Checkissuing or to third parties provided for in this Agreement; (iii) the criminal conduct, negligence or willful misconduct of Merchant or any of its agents or employees; (iv) any Claim asserted against or suffered by Checkissuing arising out of your misconduct or violation of any obligation herein; or (v) any infringement by you of any patent, copyright, trademark or other intellectual property or proprietary right, the use of which is contemplated by this Agreement; (vi) any dealings between you and any third party (including other financial institution); and (vii) Checkissuing’s acting as the Sponsor for Merchant. Promptly after receipt of notice of the commencement of any Claim, Checkissuing will notify you of the commencement thereof, but the omission to so notify you will not relive it from any liability which it may have to Checkissuing hereunder. In the event of any Claim, Checkissuing shall be entitled to assume and control the defense thereof, with counsel satisfactory to Checkissuing, acting reasonably. Expenses (including attorneys’ fees and costs) incurred by Checkissuing in connection with any Claim must be paid by you in advance immediately upon the written request of Checkissuing and evidenced in writing once paid; provided Checkissuing shall undertake to repay such expense advances to the extent that it is ultimately determined that Checkissuing is not entitled to indemnification.
In the event of any dispute between the parties which arises under this Agreement, such dispute shall be settled by arbitration in accordance with the rules for commercial arbitration of the American Arbitration Association in effect at the time such arbitration is initiated. A list of arbitrators shall be presented to both partiers from which one will be chosen using the applicable rules. In the event the parties are unable to agree on an arbitrator, then each party shall choose one arbitrator and the two arbitrators chosen shall choose a third arbitrator to actually hear the case. The hearing shall be conducted in Phoenix Arizona. The decision of the arbitrator shall be final and binding upon all Parties.
The prevailing party shall be awarded all of the filing fees and all costs associated with the arbitration include the costs of subpoenas, depositions, transcripts and the like, witness fees, payment of reasonable attorney’s fees, and similar costs related to collecting an arbitrator’s award, will be added to, and become a part of, the amount due pursuant to this Agreement. An arbitrator’s decision may be entered in any jurisdiction in which the party has assets in order to collect any amounts due hereunder.
This Agreement hereby acts as your express consent and authorization for Checkissuing to add you to Checkissuing’s customer list and website as well as to publish a press release about the contractual relationship between the parties. Prior to the publication of any press release, however, Checkissuing shall provide the text of same to you for review and approval.
The parties understand that the obligations under this agreement are not transferable, either through acquisition, merger, assignment, or any other legal or illegal method without express written consent of the other party.
20. Time of the Essence:
For all covenants and agreements contained herein, time is of the essence.
Should any one or more provisions of this agreement should be found to be invalid, illegal or unenforceable for any reason, such finding shall not affect or invalidate any other provision hereof.
All parties understand and agree that the law of the State of Arizona shall apply in any disputes that may arise regarding this agreement. Any dispute involving this agreement shall be brought in the courts of
23. Entire Agreement:
This Agreement and all attachments, exhibits and other related documents executed herewith, constitute the parties’ entire understanding and supersedes any oral representations, understandings and offers related to the subject matter hereof. This Agreement can only be modified in writing signed by both parties.
24. Enforcement Costs:
Should either party need to employ an attorney to enforce the rights and obligations contained herein, the prevailing party shall be entitled to recover as damages, reasonable attorney fees and costs of collections.
25. Advice of Counsel:
All parties understand and acknowledge that they have been afforded an opportunity to seek independent legal advice, specifically concerning liability and obligations of the parties and the possible tax liability resulting from this transaction.
26. Binding Agreement:
This agreement shall bind and inure to the heirs, executors, administrators, successors and assigns of the parties.
Current as of: March 11, 2019