Terms of Service

This agreement (“Agreement”) that you (“you” or Merchant”) are entering into with Seamless Checks, LLC (“SeamlessChex”, “us” or “we”) with its principal office located at 18305 Biscayne Blvd Suite 240 Aventura, FL 33160 is a legal document that details your rights and obligations. By visiting this website or using our goods and services you agree to be bound by the terms and conditions of this Agreement. If you do not agree please do not use or access our goods and services.  The SeamlessChex website and related services are offered to you conditioned upon your acceptance without modification of this Agreement. From time to time, it may be necessary for SeamlessChex to update or revise certain provisions of this Agreement. By using this Web Site or using our goods and services and accepting the Agreement, you agree that SeamlessChex may change the terms of this Agreement in its sole discretion without specific notice to you. If you don't agree to the changes proposed by SeamlessChex, or to any terms in this Agreement, your only remedy is to cancel your use of the services offered under this Agreement. This Agreement may be amended by SeamlessChex by posting a new version of this Agreement within the control panel or any place that you have access to in order to view the revised Agreement.  Any new version of this Agreement will immediately replace in its entirety this Agreement.

By clicking on the "I AGREE" button at the end of this Agreement, by signing this Agreement or by continuing to use the Services, it becomes a legally binding contract. You acknowledge and agree that: (i) you have reviewed and understands the Agreement; (ii) you agree to be legally bound by the terms and conditions of the Agreement; and (iii) your use of the Services and any related products or services will be governed by this Agreement. If you do not agree or are not willing to be bound by the terms and conditions of this Agreement, you should not click on the "I AGREE" button and should not seek to obtain or use the Services.

Your Obligations: By accessing and/or using the Services, you affirm that you have the legal and mental capacity to enter into, agree to, and accept the Agreement, including that you are at least eighteen (18) years old, are able to be legally bound in contract, and are in compliance with all applicable laws. You also understand that by agreeing to the Agreement you are agreeing to a mandatory arbitration provision, which, as set forth below, requires the use of arbitration on an individual basis to resolve disputes rather than jury trials or any other court proceedings. 

Access and/or Use of Services by Minors and Others: The Services may not be accessed or used by anyone under the age of eighteen (18) years old; anyone seeking to participate in one of the activities for which the Services may be used (e.g., gaming, purchasing cryptocurrency or cannabis) (the “Activities”) who is under the minimum age set by applicable law to participate in that activity in the relevant jurisdiction; and/or anyone seeking to participate in one of the Activities in a jurisdiction where that activity is not permitted.

SeamlessChex operates a web site and associated web pages, which, for purposes of this Agreement, will be referred to as the “SeamlessChex Web Site(s)”. SeamlessChex offers you access to the SeamlessChex Web Sites, which provides you access to a collection of resources, including, but not limited to, automated clearing house (ACH) payment services and any other services offered to you now or in the future by SeamlessChex (the “Service(s)”).

Article 1: Definitions

1.1 General
Capitalized terms used herein shall have the meanings given in the NACHA Operating Rules, unless otherwise defined in this document.

1.2 Defined Terms

1.2.1 Applicable Laws
Refers to all relevant Federal and state laws, rules, and regulations applicable to ACH transactions, including but not limited to:

1. NACHA Rules and interpretations
2. NACHA Operating Guidelines
3. Rules of any Payment Association
4. Federal Reserve Bank Operating Circular 4
5. Electronic Funds Transfer Act and Regulation E
6. IRS regulations under the Electronic Federal Tax Payment System
7. Department of the Treasury regulations on Federal Government Participation in ACH
8. Article 4A of the Uniform Commercial Code
9. Federal Trade Commission Act
10. Telemarketing Sales Rule
11. Federal Reserve Board Regulation J
12. OFAC sanctions laws
13. Unlawful  Gambling Enforcement Act and regulations
14. PACT Act, Jenkins Act, and accompanying regulations
15. FTC Mail or Telephone Order Merchandise Rule
16. Truth in Lending Act and Regulation Z
17. All applicable state laws and regulations

These laws, as amended from time to time, are incorporated into this Agreement by reference.

1.2.2 Application
The ACH Application completed by the Merchant and accepted by  SeamlessChex for the provision of services.

1.2.3 Agreement
This agreement between  SeamlessChex and the Merchant, including all addenda, schedules, exhibits, and attachments, as well as the Application.

1.2.4 Authorized Individual
Persons designated by the Merchant in writing, or by other means acceptable to  SeamlessChex, authorized to request transactions, initiate services, or give notices to  SeamlessChex regarding this Agreement.

1.2.5 Automated Clearing House Network (ACH Network)
The network of participants in ACH transactions, including originators, ODFIs, RDFIs, and recipients.

1.2.6 Customer
The Merchant's customer for whom entries are initiated.

1.2.7 Data
Includes pre notifications, returned entries, adjustment entries, notifications of change, and other data transmitted through one or more ACH Operators under NACHA Rules and Applicable Laws.

1.2.8 Guidelines
The ACH operating guidelines containing instructions and requirements for using the specific services provided to the Merchant. These guidelines are incorporated into this Agreement by reference and may be updated from time to time.

1.2.9 Fee Schedule
The schedule of fees and charges applicable to the services, initially set forth in the Application and subject to revision.

1.2.10 Maximum Exposure Limit
The maximum amount of funds the Merchant is allowed to have outstanding and unsettled at any given time.

1.2.11 NACHA Rules
The Operating Rules of the National Automated Clearing House Association, as amended from time to time.

1.2.12 Returns
All entries returned as Return Entries under NACHA Rules.

1.2.13 Security Procedures
The security procedures specified in the Guidelines.

1.2.14 Transaction Limit
The maximum amount of funds the Merchant may initiate or authorize for a single entry or transaction.

1.2.15 Other Terms
Any capitalized term not defined in this Agreement shall have the meaning given in the Application or NACHA Rules.

Article 2: Acknowledgment of ODFI Relationship

2.1 General
The Merchant appoints  SeamlessChex and its Third-Party Sender, Check Commerce, LLC (dba DBA) as the exclusive data processing and collection agent for processing entries originated by the Merchant, in accordance with this Agreement. The services provided by  SeamlessChex through its Third-Party Sender are facilitated by an Originating Depository Financial Institution (ODFI), a federally insured financial institution regulated by Federal and state banking agencies.  SeamlessChex, the Third-Party Sender, the ODFI, and the Agencies rely on the accuracy of all information provided by the Merchant under this Agreement.

2.2 ODFI's Rights
The Merchant agrees to assume the obligations of an Originator under NACHA Rules for all entries initiated by  SeamlessChex or its Third-Party Sender.  SeamlessChex and the Third-Party Sender must provide the ODFI with any necessary information to identify each Originator. The Merchant authorizes  SeamlessChex and its Third-Party Sender to provide information about the Merchant to the ODFI or applicable Agencies upon request. The Merchant acknowledges that  SeamlessChex, the Third-Party Sender, the ODFI, and the Agencies have the right to review the volume and character of entries and the Merchant's business operations to assess credit risk. The Merchant agrees to make payments to the ODFI for all credit or debit entries originated and for any returned debit entries.

2.3 ODFI as a Third-Party Beneficiary
The ODFI is an intended third-party beneficiary of this Agreement, with all rights as if it were a party, including the right to enforce terms or assert claims against the Merchant for breaches.

2.4 Third-Party Sender as a Third-Party BeneficiaryThe Third-Party Sender is also an intended third-party beneficiary of this Agreement, with all rights as if it were a party, including the right to enforce terms or assert claims against the Merchant for breaches.

Article 3: Customer Authorizations, Records Retention, Compliance

3.1 Authorization
Before initiating any entry on behalf of a customer, the Merchant must obtain the required authorization from the customer per NACHA Rules and Applicable Laws. No entry shall be initiated after authorization is revoked.

3.2 RecordsThe Merchant must retain the original or a legible copy of each customer authorization for the period specified by NACHA Rules and Applicable Laws, at least two years unless a longer period is required. Copies of authorizations must be promptly provided to  SeamlessChex, the Third-Party Sender, the ODFI, or Agencies upon request. The Merchant must retain documents and information relevant to this Agreement for at least three years or as required by law, and provide such documents immediately upon request.

3.3 ComplianceThe Merchant must comply with NACHA Rules, Guidelines, Applicable Laws, and requirements of the ODFI and Agencies. The Merchant must not violate prohibitions enforced by the Office of Foreign Assets Control or engage in transactions with prohibited parties. Compliance with all rules and requirements is essential and material to  SeamlessChex, the Third-Party Sender, and the ODFI’s ability to provide services.

3.4 Indemnity for Non-ComplianceThe Merchant shall indemnify and hold harmless  SeamlessChex, the Third-Party Sender, and the ODFI, including their directors, officers, employees, and affiliates, from any claims, liabilities, losses, damages, fines, costs, or expenses arising from the Merchant’s violation of NACHA Rules, Guidelines, Applicable Laws, or requirements.

3.5 Financial StatementsUpon request, the Merchant must provide quarterly financial statements within 45 days of each fiscal quarter's end, and annual financial statements (audited if requested) within 90 days of each fiscal year's end. These statements must comply with generally accepted accounting principles. The Merchant authorizes  SeamlessChex, the Third-Party Sender, and the ODFI to obtain credit reports and share financial information as necessary. Any significant legal or financial developments must be promptly reported.

Article 4: Submission and Processing of Entries

4.1 General
The Merchant may only transmit entries in the Standard Entry Class Codes specified in the Application and may not initiate cross-border payment entries. Entries must be transmitted in compliance with NACHA Rules and the Guidelines.  SeamlessChex and its Third-Party Sender are not liable for losses from non-compliance.

4.2 Services of  SeamlessChex and Its Third-Party Sender SeamlessChex, through its Third-Party Sender, will:Process entries to conform with NACHA specifications.Transmit entries to the ACH Operator.Process entries intended for  SeamlessChex from the ACH Operator.Handle exception items per NACHA Rules and other requirements.Credit entries must be transmitted two business days before the Effective Entry Date, and debit entries one business day before, provided certain conditions are met. If conditions are not met,  SeamlessChex will use reasonable efforts to transmit entries by the next business day.  SeamlessChex is not responsible for incorrect information resulting in erroneous settlements.

4.3 CommunicationsThe Merchant must direct all inquiries and communications to  SeamlessChex, which will address them directly or with the assistance of the Third-Party Sender. The Third-Party Sender may contact the Merchant as needed.

4.4 Effective Entry DateThe Effective Entry Date is the date the Merchant intends for the debit or credit to post to the customer’s account. It may be converted to a Settlement Date by the ACH Operator if the date is invalid.

4.5 Suspension of ServicesIf entries exceed the Maximum Exposure Limit, services will be suspended until consent is received from the ODFI or Agencies. Entries exceeding the Transaction Limit will not be initiated without such consent.

4.6 SecurityBoth parties must comply with Security Procedures for transmitted entries. The Merchant is responsible for safeguarding against unauthorized transmissions and must immediately notify  SeamlessChex and the Third-Party Sender if security information is compromised. The Merchant is liable for unauthorized entries if  SeamlessChex or the Third-Party Sender complied with Security Procedures in good faith.

4.7 Inconsistency of Name and Account NumberIf an entry describes the receiver inconsistently by name and account number, payment may be made based on the account number, and the Merchant’s obligation to pay is not excused.

4.8 Erroneous Entry by MerchantIf an entry (or a request for cancellation or amendment of an entry) received by SeamlessChex or its Third-Party Sender was transmitted or authorized by the Merchant, the Merchant shall pay SeamlessChex or the Third-Party Sender, as applicable, the amount of the entry. This applies regardless of whether  SeamlessChex or the Third-Party Sender followed the Security Procedures for that entry and regardless of whether the entry contained errors that could have been detected by adhering to those Security Procedures.

Article 5: Reserve Account, Security Agreement, Transaction Limits, and Maximum Exposure Limits

5.1 Reserve Account

5.1.1 Requirement and Maintenance
The Merchant acknowledges and agrees that SeamlessChex’s Third-Party Sender or ODFI, at their sole discretion, may determine the need for a Merchant reserve account. The Merchant must maintain the required balance of funds ("Reserve Balance") in a reserve account ("Reserve Account"), held in escrow by the Third-Party Sender at a designated financial institution. This requirement lasts for the term of this Agreement and for 24 months after the last debit entry initiated by the Merchant, regardless of whether the Third-Party Sender ceases to process transactions for the Merchant or the Agreement is terminated for any reason.

5.1.2 Reserve Balance Amount
The amount required in the Reserve Balance will be determined by the Third-Party Sender and the ODFI, at their sole discretion, and may be adjusted at any time with written notice to the Merchant. The Reserve Balance is based on the Merchant's return history, risk profile, and transaction activity. The specific time frame for the Merchant to fund the Reserve Balance will be determined on a case-by-case basis by the Third-Party Sender and the ODFI.

5.1.3 Maintaining Reserve Balance
If the Reserve Account balance falls below the required Reserve Balance, SeamlessChex will notify the Merchant via telephone, fax, or email. The Merchant must immediately (within one business day) transfer sufficient funds to the Reserve Account to meet or exceed the required Reserve Balance. The Merchant must promptly provide available funds to indemnify SeamlessChex or its Third-Party Sender if any deposited item or debit entry is returned and the Reserve Account lacks sufficient funds to cover such returns.

5.1.4 Access to Reserve Account
SeamlessChex, its Third-Party Sender, and the ODFI have the right to access and debit the Reserve Account for any amount owed to them by the Merchant. This includes, but is not limited to, returned entries, damages, fees, fines, costs, or any other expenses or losses related to entries initiated by or on behalf of the Merchant. There is no obligation to notify the Merchant or obtain consent before accessing the Reserve Account. The Merchant must provide all necessary authorizations and consents for this access.

5.1.5 Additional Purposes for Access
SeamlessChex, its Third-Party Sender, and the ODFI may also access the Reserve Account to: Receive payment for any returns. Reimburse SeamlessChex, its Third-Party Sender, or the ODFI for any funds expended on behalf of the Merchant. Indemnify SeamlessChex, its Third-Party Sender, or the ODFI for any actual or alleged errors, mistakes, or other unforeseen issues related to any entries.

5.1.6 Duration of Reserve Balance
The Merchant must maintain the Reserve Balance in the Reserve Account for the entire duration of their contractual relationship with SeamlessChex and for at least 24 months after the last debit entry initiated by the Merchant.

5.2 Security Agreement
The Merchant grants SeamlessChex, its Third-Party Sender, and the ODFI a security interest in the Reserve Account, Settlement Account, and all funds held therein, to secure all obligations under this Agreement. SeamlessChex, its Third-Party Sender, and the ODFI are authorized to set off against and apply any funds in these accounts to any obligations owed by the Merchant under this Agreement without notice or demand.

5.3 Transaction Limits

5.3.1 Establishment of Limits
SeamlessChex, its Third-Party Sender, and the ODFI will establish transaction limits for the Merchant, which may include limits on the amount of individual transactions (Transaction Limit) and the total amount of transactions that can be outstanding at any given time (Maximum Exposure Limit). These limits will be based on a review of the Merchant's financial and business history.

5.3.2 Modification of Limits
SeamlessChex, its Third-Party Sender, and the ODFI reserve the right to modify the Transaction Limit and Maximum Exposure Limit at any time.

5.3.3 Compliance with Limits
The Merchant agrees to comply with the established Transaction Limit and Maximum Exposure Limit. If the Merchant exceeds these limits, SeamlessChex, its Third-Party Sender, or the ODFI may suspend processing of transactions until compliance is restored or approval is obtained.

5.3.4 Monitoring of Transactions
SeamlessChex, its Third-Party Sender, and the ODFI will monitor the volume and nature of transactions initiated by the Merchant to ensure compliance with the established limits and assess ongoing risk. The Merchant agrees to provide any information requested by SeamlessChex, its Third-Party Sender, or the ODFI to facilitate this monitoring.

5.3.5 Consequences of Exceeding Limits
If the Merchant exceeds the Transaction Limit or Maximum Exposure Limit, SeamlessChex, its Third-Party Sender, and the ODFI reserve the right to take appropriate actions, including suspending or terminating the processing of transactions, adjusting the limits, or requiring additional reserves or security.

By adhering to these transaction limits and maintaining the required Reserve Balance, the Merchant helps ensure the stability and security of the ACH processing system provided by SeamlessChex and its partners.

Article 6: SeamlessChex Services
Subject to the Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to access and/or use the Services as follows: 

(a) Personal Use versus Business Use: If you are an individual accessing and/or using the Services to make purchases at or from a business, you may only access and/or use the Services for your own personal, non-commercial use and not on behalf of or for the benefit of any other individual, entity, or third party. If you are an entity registered to do business with the appropriate government agency in the state of registration, you may access and/or use the Services for commercial use.

(b) Authorization: By acknowledging and agreeing to the Agreement, you voluntarily, knowingly, and unconditionally authorize SeamlessChex to: electronically debit your account at your designated financial institution (your “Bank Account”) via ACH for each Transaction and direct your financial institution to respond to inquiries regarding your Bank Account. In addition to your account information, we may request additional information from you and/or your financial institution to process your Transaction, including, but not limited to, information about your Bank Account, information about your address, and/or other information necessary to initiate and/or complete the Transaction. You represent and warrant that you have the legal right to use the payment method(s) represented by any such Transaction Information. You agree that you are responsible for paying all amounts charged or incurred for each and every Transaction, including, but not limited to, any applicable sales and use taxes, as well as  any applicable shipping and handling fees that may apply to your purchase.

(c) Returns and Maintaining Sufficient Funds: When accessing and/or using the Services, you understand, acknowledge, and agree that it may take more than sixty (60) days for SeamlessChex to receive notice of the return or reversal of an ACH debit and/or to exercise any right granted or reserved to SeamlessChex under the Agreement. You agree to maintain at all times sufficient funds in your Bank Account to satisfy all obligations in connection with your SeamlessChex account or your access and/or use of the Services and/or Services, including payments, returns, disputes, and  associated fees, and to add funds to your Bank Account or connect a new Bank Account immediately if SeamlessChex notifies you that the funds in your Bank Account are insufficient. SeamlessChex is not responsible for overdraft or other fees that your financial institution may charge you for canceled, declined, or returned transactions or otherwise. 

(d) Declined Payments & Collections: During your access and/or use of Services, you may encounter a declined payment. A declined payment may be the result of insufficient funds in your Bank Account, a closed Bank Account, inability to locate your Bank Account, a dispute, or a reversal or denial for any reason by your financial institution. If your payment is declined for any reason, you will be notified via email, text message, and/or phone call; and, provided SeamlessChex has not identified that you have engaged in prohibited conduct, SeamlessChex will (i) disable your account and (ii) attempt to process the Transaction again (a “Retry”) using any and all payment options that have been connected to your SeamlessChex account. A successful Retry will resolve the declined payment. An unsuccessful Retry will result in your account to remain disabled until the payment is resolved. In that instance, SeamlessChex may, in its sole and absolute discretion, also take one or more of the following actions: (i) refuse to perform further Services, (ii) initiate another Retry(ies), (iii) charge you a penalty fee for each occurrence, (iv) report this information to any and all credit agencies and/or financial institutions, (v) immediately terminate this Agreement and your ability to use the Services; and/or (vi) engage a collection agency to pursue owed funds. If you request to remove your account while you have an outstanding declined payment(s), SeamlessChex will not honor the request until the declined payment(s) is resolved.

(e) Bank Verification: Prior to your first Transaction, we will verify your Bank Account information. The verification process may include sending you texts, voice calls, and/or security questions to answer. By providing us your mobile phone number, you are affirmatively opting in and agreeing that we may send such communications to you at that number, including via an automatic telephone dialing system, during the verification process and at any and all other times thereafter. You agree that as part of the verification process we may: (i) verify Bank Account information by crediting amounts between $0.01 and $1.00 to your Bank Account and then debiting equal amounts and requesting you to verify the amounts credited; and/or (ii) verify your Bank Account information by using your login credentials to your financial institution. We use these verification processes, for among other potential purposes, to validate your account and to screen for fraud. Outside of subsection (e)(i) above, we will not debit your Bank Account, except for to the extent such debit is related to a Transaction. You hereby grant us a limited power of attorney to initiate the actions in this section as part of the bank verification process and you agree that standard data and/or messaging rates (and any increases thereto) will apply when you use the Services on your cellular device, or otherwise. 

(f) Transaction Limits: We may: (i) establish security or other limits on Transactions, such as a maximum number of Transactions and/or a maximum dollar amount per Transaction, (ii) change  security limits from time to time without disclosing such changes to you in advance, and/or (iii) refuse to process your Transactions for any reason, including, but not limited to, if we reasonably believe your Bank Account balance is insufficient to cover the amounts due. We may, in our sole and absolute discretion, process any Transactions that have not been settled, even after the Agreement are terminated, and you will remain responsible for payment thereof.
3. The program you are purchasing and the associated costs and fees are explained at the following link:.  You hereby authorize SeamlessChex to charge your bank account or credit card in advance for all fees incurred by you in connection with your SeamlessChex account and the service you have chosen. In some cases, we will be charging your designated credit card or checking account every month, but some charges may accumulate on your account before they are charged to your card. It is your responsibility to notify SeamlessChex if your credit card has expired and to make changes or your service may be disconnected or interrupted. All fees shall be paid in U.S. dollars. SeamlessChex reserves the right to change our fees or billing methods at any time, provided, however, that such modifications shall not take effect earlier than thirty (30) days after SeamlessChex posts such modification on the SeamlessChex Web Site. SeamlessChex also has the right to collect applicable taxes and impose premium surcharges for some areas of the service and these surcharges may apply immediately after you register for the Service.  We expect you to pay your account balance on time. Amounts not paid by you to SeamlessChex when due will be assessed an additional 1.5% (or the highest amount allowed by law, whichever is lower) per month if your payment is more than thirty (30) days past due. That amount is also due immediately. You are responsible and liable for any fees, including attorney and collection fees, that SeamlessChex may incur in its efforts to collect any remaining balances from you. You also agree that you will be billed for and will pay any outstanding balances if you cancel any Service. You should let SeamlessChex know about any billing problems or discrepancies within thirty (30) days after they first appear on your account statement. If you do not bring them to SeamlessChex’s attention within thirty (30) days, you agree that you waive your right to dispute such problems or discrepancies. (i) All sales are final and credits are only allowed in limited circumstances, as explained in this section.  SeamlessChex may provide the option to request a credit. Credits may be applied toward the purchase of eligible ancillary purchases during the timeframe specified by the SeamlessChex. The SeamlessChex will determine which ancillary purchases are eligible, as well as the amount of the credit (including any potential promotional amount). Credits are non-transferable, may not be sold, are not redeemable for cash, and may not be combined with other promotions.   (ii)  Chargebacks and Other Refund Prohibitions. You agree that you will not attempt to evade, avoid, or circumvent any prohibitions in any manner with regard to your purchase. Without limiting the generality of the foregoing, you will not dispute or otherwise seek a “chargeback” from the SeamlessChex whose credit card or other method of payment you used to purchase. Should you do so, you are subject to immediate cancelation, and we may, in our sole discretion, refuse to honor pending and future purchases made from all credit card accounts or online accounts on which such chargebacks have been made, and may prohibit future purchases from all persons in whose name the credit card accounts exist, and from any person who accesses any associated online account or credit card or who otherwise breaches this provision from using the SeamlessChex Web Site.

Article 7: Registration
In order for you to participate in the Service, SeamlessChex will require that you provide specific information about yourself and/or your business. If you choose to participate, you agree to provide true, accurate and complete information and to refrain from impersonating or falsely representing your affiliation with any person or entity (such information being “Member Data”). Member Data and certain other information about you and/or your business are subject to our Privacy Policy. You agree and acknowledge that Member Data from the registration process is used to send you information about SeamlessChex and the Service, including, but not limited to, the use of your email address for newsletters and other necessary SeamlessChex communication. For more information, SeamlessChex urges you to review the SeamlessChex Privacy Policy that is part of this Agreement.

Article 8: Third Party Content
The SeamlessChex Web Site contains content and information from third party providers and/or links to their Web sites (“Third Party Content”). Such content is not under the control of SeamlessChex and SeamlessChex is not responsible for such content, including, without limitation, any link contained in such content, or any changes or updates to such content. SeamlessChex is providing such Third Party Content to you only as a convenience, and the inclusion of such content does not imply endorsement by SeamlessChex of such content or the affiliate. You may be subject to additional and/or different terms, conditions, and privacy policies when you use third party services, content, software, or sites. SeamlessChex does reserve the right to remove content that, in SeamlessChex’s judgment, does not meet its standards, but SeamlessChex is not responsible for any failure or delay in removing such material. SeamlessChex is not and will not be responsible for (i) the terms and conditions of any transaction between you and any third party, (ii) any insufficiency of or problems with any such third party's background, insurance, credit or licensing, or (iii) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that you have a dispute with any such third party, you release SeamlessChex (and its affiliates, suppliers, agents and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. 

Article 9:


(C)  For any applicable Services used by you, SeamlessChex will use industry standard practices to ensure that all pre-installed software is correctly configured. In case there is more than one way to configure any software, SeamlessChex will choose the configuration it determines, in its sole discretion, to be the most appropriate. SeamlessChex will install security patches, updates, and service packs as soon as practical. Software updates may change system behavior and functionality and as such may negatively affect your applications. SeamlessChex cannot foresee nor can it be responsible for service disruption or changes in functionality or performance due to implementation of software patches and upgrades. If such disruption or changes occur, SeamlessChex will provide its best efforts to remedy the situation as soon as possible after being notified of such problem by you.  SeamlessChex shall be in no way responsible for any loss or corruption of software used pursuant to the Services and loss or corruption of your data archived and/or placed with SeamlessChex in any event.  You understands that SeamlessChex has informed them that loss or corruption of software and data may occur that is beyond the control of SeamlessChex and SeamlessChex has informed you that they strongly recommend that you maintain a complete data backup and software backup which is independent from SeamlessChex and a disaster recovery plan. Neither SeamlessChex and/or you shall be liable to the other for any failure to perform or delay in performance of any Agreement where such failure or delay is occasioned by Force Majeure or an Act of God (including but not limited to fire, embargo, labor strike or interruption of electrical services), or circumstances beyond such party’s control.

Article 10: SeamlessChex Software Licenses
SeamlessChex provides you with a non-exclusive, non-transferable, limited license to use SeamlessChex’s software, which you agree to use in accordance with this Agreement. You may not sub-license, or charge others to use or access, our software without first obtaining written permission from us. All software is owned by SeamlessChex and/or its suppliers and is protected to the maximum extent permitted by copyright laws and international treaty provisions. Any reproduction, modification or redistribution of the software is expressly prohibited, and may result in severe civil and criminal penalties. SeamlessChex’s software, its structure, sequence and organization and source code are considered trade secrets of SeamlessChex and its suppliers and are protected by trade secret laws. WITHOUT LIMITED THE FOREGOING, COPYING OR REPRODUCING THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. YOU MAY NOT DECOMPILE OR DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER. You may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to SeamlessChex with respect to the Services.  SeamlessChex will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality.  You hereby grant SeamlessChex a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (A) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (B) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

Article 11: Indemnification
You agree to indemnify, defend, and hold harmless SeamlessChex, its employees, members, directors, managers, officers or agents from and against any loss, liability, damage, penalty or expense (including attorneys' fees, expert witness fees and cost of defense) they may suffer or incur as a result of  (i) any failure by you or any employee, agent or you of you to comply with the terms of this Agreement; (ii) any warranty or representation made by you being false or misleading; (iii) any representation or warranty made by you or any employee or agent of You to any third person other than as specifically authorized by this Agreement, (iv) negligence of you or your subcontractors, agents or employees, or (v) any alleged or actual violations by you or your subcontractors, employees or agents of any card association rules, governmental laws, regulations or rules.

Article 12: Marketing Obligations & Compliance with Telemarketing Laws
You agree that you, and not SeamlessChex, are solely responsible for ensuring that its implementation and use of the Services, including, but not limited to any text-payments, text marketing, and email marketing complies with, and you agree to comply with, all applicable federal, state, local, and international laws and regulations, and all rules promulgated by any regulatory authority or any payment card network, including but not limited to those of Visa, Mastercard, American Express and Discover, in each case as amended from time to time by relevant authority. For the avoidance of doubt, SeamlessChex will not provide any oversight, guidance, assistance, management, education, or advice to you with respect to the applicable laws that may govern the Services. You represent and warrant that you shall market and promote the Services in compliance with all federal, state and local laws, regulations, and rules, including, but not limited to, the Telephone Consumer Protection Act (TCPA), the CAN-SPAM Act, the rules and regulations of the Federal Communications Commission, the Telemarketing Sales Rule, the Do-Not Call Registry Act, the New York Consumer Privacy Act (CCPA), and any other federal, state or local telemarketing laws (collectively, “Telemarketing Laws”). You acknowledge and agree that SeamlessChex does not tolerate any violation of law, regulation, rule, including any Telemarketing Law in the performance of your obligations under this Agreement (i.e., there shall be no robo-calls, press 1 campaigns, text messaging, facsimile blasts, etc.). SeamlessChex shall not be liable for any violation of Telemarketing Laws by you, and, to the fullest extent permitted by law, in addition to the indemnity obligations set forth under the Agreement, you agree to indemnify, defend, and hold harmless SeamlessChex, its employees, members, managers, referral partners and agents from and against any claims, loss, liability, damage, assessment, penalty or expense (including attorneys' fees, expert witness fees and cost of defense) they may suffer or incur arising out of or related to Merchant’s use of the Services or violation of any Telemarketing Law, including but not limited to any fees, costs, losses, fines, assessments, or other penalties for noncompliance with any applicable laws.

Article 13: Copyright and Trademark Notices
All materials on the SeamlessChex Web Site (as well as the organization and layout of the SeamlessChex Web Site) are owned and copyrighted or licensed by SeamlessChex, its affiliates or its suppliers. All rights reserved. No reproduction, distribution, or transmission of the copyrighted materials at the SeamlessChex Web Site is permitted without the written permission of SeamlessChex. Any rights not expressly granted herein are reserved.   Without SeamlessChex’s prior permission, you agree not to display or use in any manner, any of SeamlessChex trademarks, whether registered or not. 

Article 14 Intellectual Property
"Intellectual Property" means all of the following owned by a party:  (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names.  The rights owned by a party in its Intellectual Property shall be defined, collectively, as "Intellectual Property Rights."  Other than the express licenses granted by this Agreement, SeamlessChex grants no right or license to you by implication, estoppel or otherwise to any Intellectual Property Rights of SeamlessChex.  Each party shall retain all ownership rights, title, and interest in and to its own products and services and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein.  SeamlessChex (and not you) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for any Intellectual Property Rights incorporated therein.  You will cooperate with SeamlessChex in pursuing such protection, including without limitation executing and delivering to SeamlessChex such instruments as may be required to register or perfect SeamlessChex’s interests in any Intellectual Property Rights and any assignments thereof.  You shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from SeamlessChex in connection with this Agreement. SeamlessChex shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the existing SeamlessChex products or services and/or any new programs, upgrades, modifications or enhancements developed by SeamlessChex in connection with rendering any Service to you, even when the same result from yours request.  To the extent, if any, that ownership in such refinements and improvements does not automatically vest in SeamlessChex by virtue of this Agreement or otherwise, you hereby transfer and assign (and, if applicable, shall cause its affiliates to transfer and assign) to SeamlessChex all rights, title, and interest which you or any of its affiliates may have in and to such refinements and improvements.  You will take all necessary action to assure SeamlessChex’s property rights to its Intellectual Property Rights and any extensions thereunder will be protected.

Article 15: Modification
SeamlessChex reserves the right at any time and from time to time to modify, discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that SeamlessChex shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

Article 16 Termination and Cancellation
The initial term of this Agreement shall be for a period of two (2) years, commencing on the date first set forth below.  This Agreement shall thereafter be automatically renewed for additional terms of one (1) year each unless either party notifies the other no later than thirty (30) days prior to the end of the current term that it does not wish to renew this Agreement.   SeamlessChex may cancel this Agreement for any reason, or no reason at all, by providing you with seven (7) days notice. If you violate any of the terms and conditions of this Agreement, including, but not limited to, by not paying required amounts to SeamlessChex, you shall remain responsible for payment of all the remaining fees and costs that would have otherwise been due for the remainder of the then-current term.  The parties expressly agree that the damages, which they might reasonably anticipate to be sustained by SeamlessChex, are difficult to ascertain and measure because of their indefiniteness or uncertainty and that the amount set forth above is a reasonable estimate of the damages that would probably be caused and shall be due regardless of proof of actual damages.  All other provisions of this Agreement which may reasonably be construed as surviving such termination will survive the termination of this Agreement, including, but not limited to paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18.

Article 17 Governing Law; Waiver of Jury Trial; Arbitration
This Agreement will be governed by and construed in accordance with the laws of the State of New York without reference to conflict of law provisions. Any action, proceeding, arbitration or mediation relating to or arising from this Agreement must be brought, held, or otherwise occur in the federal judicial district that includes New York. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. Any claim, dispute or controversy ("Claim") by either you or us against the other, or against the employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents or assigns of the other, arising from or relating in any way to this Agreement or to our relationship, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association, under its Commercial Arbitration Rules in effect at the time the Claim is filed, except as otherwise provided below. All Claims are subject to arbitration, no matter what theory they are based on or what remedy they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law. Claims and remedies sought as part of a class action, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between you and us. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the American Arbitration Association in connection with the arbitration, as well as for any reasonable attorneys' fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes New York. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party's use of (or advancement of any Claims, defenses or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or other property interests for contractual debts now or hereafter owed by either party to the other. IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, YOU AND SEAMLESSCHEX MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY, AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION. YOU AND SEAMLESSCHEX AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

Article 18: Force Majeure
Any delay or failure of either party to perform its obligations will be excused to the extent that the delay or failure was caused solely and directly by an event beyond such party’s control, without such party’s fault or negligence and that by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, or acts of terrorism) (each, a “Force Majeure Event”). However, your financial inability to perform; changes in cost or availability of materials, components or services; change in market conditions; or labor disputes or other contract disputes involving or affecting you will not excuse performance by you under this section, and will not constitute a Force Majeure Event. A party shall give the other party prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. A party shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of the Force Majeure Event are minimized, and resume full performance under the Agreement as soon as commercially reasonable. We are permitted (but not required) to procure substitute goods or services for any goods or services that are delayed or unavailable as a result of a Force Majeure Event.

Article 19: General Terms
You acknowledge, understand, and agree that the Agreement, this agreement, and our relationship is non-exclusive. Nothing in the Agreement or otherwise shall in any way limit our right to do business with others and/or allow access and/or use of the Services by others.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.  No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question.  All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein.  This Agreement shall be deemed to be jointly prepared by the parties and therefore any ambiguity or uncertainty shall be interpreted accordingly.  No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented.  Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.  You may not assign this Agreement without the written consent of SeamlessChex.  SeamlessChex may assign this Agreement in its sole discretion without the written consent of you.  The section headings contained in this Agreement are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement.  This Agreement, including all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns.  Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York (irrespective of its choice of law principles).  This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same the same instrument.  Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.  By executing this Agreement by electronic means, Agent acknowledges that under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Agreement and all electronically executed documents incorporated into this Agreement or related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when (i) your electronic signature is associated with the Agreement and the incorporated or related documents, (ii) you consents and intends to be bound by the Agreement and the incorporated or related documents, and (iii) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record).

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