PLEASE READ THESE TERMS OF SERVICE (“TERMS”) CAREFULLY. BY ACCESSING WAIVR.CO OR USING THE WAIVR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT USE THE WAIVR SERVICES OR ACCESS WAIVR.CO.
These Terms are a legal agreement between Waivr, Inc. (“Waivr”, “We”, “Our” and “Us”) and the entity or sole proprietor on whose behalf a Waivr account is created (“You”, “Your”, “Yours” and “Merchant”) to obtain use of any Waivr assets, including the payment processing API, the Site and any other content, functionality, and services offered by Waivr (“Services”). These Terms may be supplemented by additional terms and conditions applicable to the Services provided by Waivr, including the Merchant Agreement.
Waivr reserves the right to modify or terminate the Services or to terminate Your access to the Site, in whole or in part, at any time.
1. Waivr Services
Waivr provides merchants (“Merchants”) with a service to facilitate and optimize payments by bank transfer through the National Automated Clearing House (“ACH”) in accordance with all applicable laws, regulations and The Electronic Payments Association Operating Rules and Guidelines (“ACH Rules”), each as in effect from time to time. Waivr’s service optimizes the time at which funds are transferred from an end customer’s financial account via an algorithm that analyzes cash flow patterns into and out of Your financial account to ensure there are sufficient funds for payment. Once funds are pulled from one of your customers’ financial account, Waivr disperses the funds to You via Real Time Payment® (RTP) network. WAIVR IS NOT LICENSED AS A MONEY TRANSMITTER UNDERSTATE OR FEDERAL LAW.
As used in these Terms, the “Services” refers to Waivr’s payment services, as well as Our website (the “Site”), mobile applications software, programs, documentation, tools, hardware, internet-based services, components and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) provided to You by Waivr, directly or indirectly. These Terms incorporate by reference all policies, notices, and other content that appear on Our website at www.waivr.co.
To sign up for the Services, you must create an account ("Account") by registering on our Site and providing true, accurate, and complete information about yourself and your use of the Services. You agree not to misrepresent your identity or any information that you provide for your Account, and to keep your Account information up to date at all times. It is your responsibility to maintain access to your Account; you may never share your Account information, including your Waivr Dashboard password, as well as your API authentication credentials, including your Client Identification Number (“Client ID”) and secret, with a third party or allow any other application or service to act as you.
3. Consent to ACH Payment Authorization
When You make a purchase using products powered by Waivr, You authorize Waivr to electronically debit Your designated account (and, if necessary, electronically credit Your account to correct erroneous debits) for all ACH Transactions that You initiate for the designated amount on the date designated by Waivr’s algorithm for such ACH Transaction. You understand that this authorization will remain in full force and effect until You notify the applicable merchant that You wish to revoke the authorization.
You agree to pay the applicable fees disclosed to you when you sign the Merchant Agreement. All fees are charged at the time we process a transaction and are deducted first from the transferred or collected funds. We reserve the right to change the fees upon reasonable advance notice. All balances and all fees, charges, and payments collected or paid through the PaymentServices are denominated in US dollars.
5. Your Obligations
You may only use the Services for payment of those products and/or services which You registered for when entering into the Merchant Agreement with Waivr as reflected in the Merchant Agreement. Waivr’s acceptance of You as an eligible Merchant is strictly linked to the description of the products and services You registered for when entering into the Merchant Agreement. You must ask prior written approval for any change or addition to products or services eligible for payment via Waivr prior to submitting payment requests therefor.
You shall not use the Services for the payment of products and/or services where it is illegal to offer or provide these to or from the relevant country and/or which are stated in the Merchant Agreement.
Our acceptance of You as an eligible Merchant should not be interpreted as an advice or opinion of Waivr as to the legality of Your products or services. You are and remain solely responsible to ensure that products or services sold are compliant with all applicable laws, and the NACHA Rules.
You are obliged to provide on Your website the following information to your customers for every Transaction: complete description of the goods or services offered, returned merchandise and refund policy, customer service contact (including email address and/or telephone number), address, delivery policy, Merchant’s consumer data protection policy and all other legally required information to be provided to consumers in the relevant jurisdiction.
Merchants must maintain a copy of all electronic and other records related to any transaction and the ordering and delivery of any product or service paid for by Waivr for the greater of (i) 2 years subsequent to the transaction being processed or (ii) the applicable warranty period of the delivered product or services. The copy of the records shall include, but not be limited to: shipping details (if relevant), invoices for the delivered product or services and all contacts with the end customer. In case of investigations by Waivr or our financial institution partners with respect to suspected fraud, suspicious transactions or other improper use of Waivr, You will fully co-operate in the auditing of such records. Your obligations to maintain documentation of Your business according to applicable laws remain unaffected by this clause.
6. API Interface
Connections to the API interface are made using JSON. Authentication is performed via a combination of API key/secret, IP and/or client certificate checks.
7. Merchant Equipment and Software
You shall be solely responsible for the installation, servicing, maintenance, security and operation of the equipment and software needed to connect to the Waivr Services and submit payments for processing by Waivr. Waivr provides standard software modules and installation guides to the Merchant to help enable the connection to the Services. Waivr shall ensure its input is provided in a professional manner, but You remain responsible to ensure the correct implementation and use of the Services in Your own systems in accordance with the then current installation and usage instructions and software updates provided by Waivr.
8. Merchant Integration Responsibility
It is the responsibility of the Merchant to comply with any relevant instructions and installation manuals issued by Waivr, including with updates issued from time to time to Merchant. Waivr is not obliged to provide notification of changes to any software or any interfaces thereto which would not impact Merchant’s use of the Services if it had correctly followed the integration instructions and other usage manuals.
9. Consent to Receive Electronic Communications
By using the Waivr Services, You consent to receive all communications, terms, disclosures, notices, and statements (“Communications”) from Waivr electronically and You confirm that You can access, receive and retain such Communications. Waivr will provide Communications by posting them on waivr.co or by emailing them to You at the email address You provided when opening or updating Your Waivr Account.
A Communication to You will be deemed to have been received twenty-four hours after We have posted it to Our website or emailed it to You.
In order to access and retain our Communications You will need: a computer or mobile device that is Internet-enabled, a valid email address, Internet connectivity, and a web browser which include 128-bit encryption, with cookies enabled.
You may withdraw Your consent to receiveCommunications electronically by contacting Us at email@example.com or 8217 Beverly Blvd, Suite 29 Los Angeles, CA 90048. Because the nature of the Waivr Services requires delivery of Communications electronically, We will discontinue Your use of Waivr upon receipt of notice of Your intent to withdraw such consent.
We have implemented technical and organizational measures designed to secure Your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, We cannot guarantee that unauthorized third parties will never be able to defeat those measures or use Your personal information for improper purposes.
12. Intellectual Property
Waivr owns all rights, title and interest in and to the intellectual property in the Waivr Services and any documentation (including without limitation any patents, copyrights, rights of publicity, trademarks, logos, designs, trade dress and trade secrets). All rights in the Waivr intellectual property not expressly granted to You in these Terms are reserved by Waivr. You shall not and shall not allow any third party to use Your instance of the Waivr Services to: (i) claim or register any Waivr intellectual property on Your behalf or on behalf of others; (ii) import or export any portion of the Waivr Services to a person or country in violation of export control laws; (iii) copy, reproduce, post, transmit, resell or distribute the Waivr Services or any content or data obtained through the Waivr Services or Our website; (iv) access or attempt to access non-public Waivr information; (v) hack or develop workarounds to any technical limitations placed on Your Waivr Account by Waivr or a Waivr-enabled Merchant; (vi) reverse engineer the Waivr Services or any component thereof; or (vii) engage in any activity that would interfere with or affect Waivr’s ability to provide the Waivr Services, including sending an unreasonably large number of requests in quick succession to Waivr.
EXCEPT AS OTHERWISE PROVIDED HEREIN, AND SUBJECT TO APPLICABLE LAW, WAIVR MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER WITH RESPECT TO THE SERVICE. WAIVR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SERVICE DESCRIBED OR PROVIDED. WAIVR DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, INVULNERABLE TO CYBER ATTACK OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
14. Dispute Resolution
These Terms and any dispute arising out of or in connection with these Terms(“Dispute”) shall be subject to arbitration as set forth.
You agree that any dispute relating in any way to Your use of the Services shall be submitted to confidential binding arbitration. If there is a dispute about whether this arbitration provision can be enforced or applies to the Dispute, You and Waivr agree that the arbitrator will decide that issue. However, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
Arbitration under these Terms is under the Federal Arbitration Act which governs the interpretation and enforcement of this provision. The arbitration will be administered by JAMS Arbitration in accordance with their arbitration rules (the “Rules”) then in effect, found at https://www.jamsadr.com/. Arbitration shall be conducted by one (1) arbitrator as selected pursuant to the Rules; the arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. The location of the arbitration shall be Los Angeles, CA. Each party shall be responsible for their own arbitration fees and costs. To the fullest extent permitted by applicable law, no arbitration under these Terms shall be joined to an arbitration involving any other party subject to these Terms, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever banned. In the event that the law does not permit the above mentioned dispute to be resolved through arbitration, You agree that any actions shall be brought solely in a court of competent jurisdiction located within Los Angeles, CA.
You have the right to opt out of binding arbitration within thirty (30) days of the date You first accepted these Terms by notifying Us via mail at Waivr, Inc., 8217 Beverly Blvd, Suite 29 Los Angeles, CA 90048. In order to be effective, the opt out notice must include Your full name, any account information, and must clearly indicate Your intent to opt out of binding arbitration. If You have decided to opt-out of Binding Arbitration, all Disputes shall be heard in a court of competent jurisdiction located within LosAngeles County, CA.
15. Class Action Waiver
You and Waivr agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis. You agree that You will not seek to have any dispute heard as a class action, representative action, or private attorney general action.
16. Limitation of Liability
TO THE MAXIMUM EXTENT PERMISSIBLE, IN NO EVENT WILL WAIVR OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOUR OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO ANY, DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USEOF THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH THE SERVICE OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE.
CERTAIN STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OF LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPY TO YOU, ANY LIABILITY OF WAIVR, ITS DIRECTORS, EMPLOYEES, OR AGENTS WILL BE LIMITED AND WARRANTIES WILL BE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW, BUT IN NO EVENT SHALL WAIVR’S LIABILITY EXCEED ONE HUNDRED DOLLARS ($100.00).
You agree to defend, indemnify, and hold harmless Waivr (and all of its direct and indirect subsidiaries) and each of their respective directors, officers, employees, agents, successors, and assigns from and against all losses, liabilities, damages, claims and expenses, including attorney’s fees, arising out of, relating to, or resulting from Your violation of these Terms or any misuse of the Service or the Site, including such violation or misuse conducted by any of Your employees or agents.
19. Termination by Waivr
Subject to applicable law, Waivr may terminate or suspend Your use of the Service, in whole or in part, at any time for any reason without cause and without prior notice. Any obligations or liabilities incurred by You prior to the date of termination shall survive the termination of these Terms.
The Services are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to local law or regulation.
21. Use of Information and Materials
Any information and materials contained on the Waivr Site, and the terms, conditions and descriptions that appear, are subject to change. Unauthorized use of Waivr’s web sites and systems, including but not limited to unauthorized entry into Waivr’s systems, misuse of passwords, or misuse of any information posted on the Site is strictly prohibited.
22. Third Party Products or Services
All information submitted to Waivr via the Site shall be deemed and remain the property of Waivr and Waivr shall be free to use, for any purpose, any idea, concepts, know-how or techniques contained in information a visitor to this Site provides Waivr through this Site. Waivr shall not be subject to any obligations of confidentiality regarding submitted information except as otherwise specifically agreed or required by law.
We take copyright infringement very seriously. If You believe that any copyrighted material owned by You has been infringed upon by someone using Our Site, please send Us a message which contains:
● Your name.
● The name of the party whose copyright has been infringed, if different from Your name.
● The name and description of the work that is being infringed.
● The location on Our Site of the infringing copy.
● A statement that You have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
● A statement that You swear, under penalty of perjury, that the information contained in this notification is accurate and that You are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification and send it to Our Copyright Agent: Copyright Agent of Waivr, firstname.lastname@example.org and 8217 Beverly Blvd, Suite 29 Los Angeles, CA 90048.
In the event that You receive a notification from Waivr stating content posted by You has been subject to a DMCA takedown, You may respond by filing a counter-notice pursuant to the DMCA. Your counter-notice must contain the following:
● Your name, address, email and physical or electronic signature.
● The notification reference number (if applicable).
● Identification of the material and its location before it was removed.
● A statement under penalty of perjury that the material was removed by mistake or misidentification.
● Your consent to the jurisdiction of a federal court in the district where You live(if You are in the U.S.), or Your consent to the jurisdiction of a federal court in the district where your service provider is located (if You are not int he US).
● Your consent to accept service of process from the party who submitted the takedown notice.
Please be aware that We may not take any action regarding Your counter-notice unless Your notification strictly complies with the foregoing requirements. Please send this counter-notice to Waivr, email@example.com and 8217 Beverly Blvd, Suite 29 Los Angeles, CA 90048.
25. Use of Name of the Parties
You agree that Your name and standard logo (as published by the Merchant) may be included by Us on the Waivr client list on Our website and in Our sales materials. Waivr shall be entitled to use said list freely in its commercial efforts. Any other use of Your name, logo or information shall only occur with Your prior written approval which You may withhold in Your discretion.
You may on Your website in the section “frequently asked questions”, or in a similar informational section on Your website, refer to Waivr as a payment facilitator, explaining that this is the reason why the name Waivr may appear on bank statements of the customer. You may also include an internet link to the website of Waivr in such context. You may not mention Waivr on the homepage of Your website in any situation. You must in each case also clearly state that Your customers should not contact Waivr for support or questions regarding payments facilitated by Waivr on Your behalf. You may not use Waivr’s logo anywhere on Your website without the prior express written approval of Waivr, which We may refuse or withdraw in Our discretion.
26. Governing Law and Venue
These Terms will be governed by and construed under the laws of the State of California, without reference to its conflict of law provisions, and shall inure to the benefit of Waiver, its successors and assigns, whether by merger, consolidation or otherwise. By using the Service, You hereby submit to the exclusive jurisdiction of the courts within the State of California and waive any jurisdictional venue or inconvenient forum objections to such courts. You further agree to comply with any applicable federal, state and local laws in Your use of the Service.
27. Export Control
You must not use or otherwise export, re-export or transfer any of the Waivr technology making up the Services except as authorized by United States law and the laws of the jurisdiction(s) in which the Waivr Technology was distributed and obtained, including by providing access to Waivr technology (a) to any individual or entity ordinarily resident in a High-Risk Jurisdiction; or (b) to any High-Risk Person. By using the Services, you represent as of the EffectiveDate and warrant during the Term that you are not (x) located in or organized under the laws of any High-Risk Jurisdiction; (y) a High-Risk Person; or (z)owned 50% or more, or controlled, by individuals and entities (i) located in or, as applicable, organized under the laws of any High-Risk Jurisdiction; or (ii)any of whom or which is a High-Risk Person. You must not use the Waivr technology for any purposes prohibited by Law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
In the event that a provision of these Terms is found to be unlawful, conflicting with another provision of the Terms, or otherwise unenforceable, the Terms will remain in force as though they had been entered into without that unenforceable provision being included in them.
If two or more provisions of these Terms or any other agreement You may have with Waivr are deemed to conflict with each other’s operation, Waivr shall have the sole right to elect which provision remains in force.
We reserve all rights permitted to Us under theseTerms as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of these Terms or any applicable law should not be construed as Our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
30. Assignment and Survival
You may not assign Your rights and/or obligations under these Terms to any other party without Our prior written consent. We may assign Our rights and/or obligations under these Terms to any other party at Our discretion. All portions of these Terms that would reasonably be believed to survive termination shall survive and remain in full force upon termination, including but not limited to the Limitation of Liabilities, Disclaimer, Indemnification, Class Action, and Arbitration sections.
31. Entire Agreement
Any notices required under these Terms shall be delivered to Waivr, Inc., 8217 Beverly Blvd, Suite 29 Los Angeles, CA 90048, delivery confirmation required. Any notices to You shall be delivered either electronically via email to Your account or to the address listed within Your account.
33. Third-Party Beneficiaries
No provision in these Terms, any applicable Merchant Agreement and any other applicable agreement is intended or shall create any rights with respect to the subject matter of these Terms, and any applicable agreement in any third party.
34. California Businesses
If you are a “Business” as defined by the California ConsumerPrivacy Act of 2018, Cal. Civ. Code § 1798.100 et seq., (“CCPA”) then this section 36 applies to you. For purposes of this Section 36, “process”, “sell”, and “business purpose(s)” have the meaning ascribed to them by the CCPA.
a) For purposes of this Section 36, “Customer PersonalInformation” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household that is processed by Waivr in connection with its Services to you.
b) We may receive Personal Information from Your customers for the purpose of performing Services on your behalf as described in these Terms. We agree that we will process Customer Personal Information collected, processed, stored or transmitted by, or accessible to us in the course of these Terms, and other Applicable Terms of Service referenced above, only on your behalf, and for the purpose of providing you with the Services in these Terms and theMerchant Agreement. As part of, and for purposes of, facilitating the Services,Waivr may (i) de-identify or aggregate the Customer Personal Information; and(ii) process the Customer Personal Information for operational purposes, including, without limitation, verifying or maintaining the quality and safety of the Services; improving, updating or enhancing the Services either for you or for our customers generally; detecting and preventing fraud, and for protecting the security and integrity of our Services; and complying with our legal obligations. You acknowledge and agree that Customer Personal Information that you disclose to Waivr is provided to Waivr for the parties’ business purposes.
c) We reserve the right to delete Personal Information stored pursuant to these General Terms in the ordinary course of business, pursuant to our retention schedules.
35. Force Majeure
Waivr is not liable to You for not carrying out, or delaying performance of, any action caused by an act of God, a government authority, the ACH, a legal requirement, a catastrophe, war or terrorism, civil or labor disturbance, fire, flood, other natural disaster, or any other cause beyond Waivr’s reasonable control.