Shopify Payments Terms of Service - Austria

The Terms and Conditions described herein constitute a legal agreement (“Agreement” or Shopify Payments Terms”) between you (if your business is a sole proprietorship) or your business (if you are signing up on behalf of a corporation or other legal entity) (the “Merchant”, “you” or “your”) and Shopify International Limited, organized under the laws of Ireland, with offices at 2nd Floor Victoria Buildings 1-2 Haddington Road, Dublin 4, D04 XN32, Ireland (“Shopify”, “we”, “us”, or “our”).

A. The Shopify Payments Service

Our Role
The Shopify Payments service (“Shopify Payments” or the
“Payments Services”) is a: (i) payment account boarding; (ii)
payment underwriting; and, (iii) payment data transmission
service that helps you integrate with a payment processor (the
“Processor”), as described more fully in this Agreement. The
Payments Services may also apply to your use of point-of-sale
equipment (“POS Equipment”), subject to availability and to your
election to procure the same. You hereby appoint us as your
agent to deliver information and instructions on your behalf to
the Processor.
Under the separate Shopify Platform Terms of
Service (the
“Shopify Platform Terms”), Shopify Inc. provides you with its
online storefront, shopping cart, store management, marketing,
and other services (collectively, the “Shopify Platform
Services”). The Shopify Platform Terms are incorporated herein
by reference and by accepting this Agreement you are also
accepting them.
Neither Shopify Inc. nor Shopify International Limited is a
bank, payment institution, or money services business, but are
instead, respectively, a supplier of the Shopify Platform
Services supplied under the Shopify Platform Terms and of the
Payments Services under this Agreement.
The Processor
The Processor is Stripe Payments Europe,
Ltd., organized under the laws of Ireland, which is a technical
services provider and may offer the services as an agent of one
or more financial institutions in Austria (each, a “Financial
Services Provider”). The processing and settlement of
Transactions (as defined below) (“Payment Processing”) is
carried out by the Processor and any of the Financial Services
Providers under a separate Stripe Connected Account
Agreement,
including the Austria Stripe Services
Agreement and the applicable
Financial Services Terms, and
to the extent you use a payment method that is subject to
additional terms, the Payment
Terms (collectively,
the “Processor Terms”). By accepting this Agreement, you are
also accepting and agreeing to be bound by the Processor Terms,
which is the legal agreement between you and the Processor.
Shopify is not a party to the Processor Terms and is not liable
to you in respect thereof. By accepting this Agreement and the
Processor Terms you are agreeing to the creation of an account
with the Processor for Payment Processing (the “Processor
Account”). We reserve the right to change the Processor, subject
to the terms of our agreement with the Processor. In the event
of any inconsistency between this Agreement and the Processor
Terms, this Agreement shall prevail, except in the event of any
inconsistency between this Agreement and the Processor Terms
concerning Payment Processing or the Processor Account, in which
case the Processor Terms shall prevail.
The Processor’s role is to accept and process credit card, debit
card and other types of payments (collectively “Cards”) with
respect to sales of your products and services through
internet-based transactions (“Card Not Present Transactions" or
“CNP Transactions”). If applicable, POS Equipment permits
transmission of data to the Processor from in-person,
point-of-sale transactions (“Card Present Transactions" or “CP
Transactions”), as well as manually entered transactions (“Keyed
Transactions”). CNP Transactions, CP Transactions and Keyed
Transactions shall be referred to herein, collectively, as
“Transactions”.
Your Role
To utilize the Services, you must be a business located in
Austria.
The Payments Services
Shopify hereby grants you a
non-exclusive, non-transferable, non-sublicensable, limited,
revocable right to use the Payments Services (the “License”).
The License shall be for the term of this Agreement only.
Neither the License nor any other provision hereof shall grant
any rights in the Payments Services or other intellectual
property rights except the limited License of use set out above.
You shall not: (i) permit any third party to access the Payments
Services, including, but not limited to, your Shopify Admin on
our website (the “Shopify Admin”), except as permitted herein,
and to carry out Transactions; (ii) create derivate works based
on the Payments Services; (iii) copy, frame or mirror any part
of the content of the Payments Services, other than copying or
framing for your internal business purposes; (iv) reverse
engineer, disassemble, decompile, or otherwise attempt to
discover the source code or trade secrets for any of the
Payments Services; or, (v) access the Payments Services in order
to build a competitive product or service.
It is your responsibility to obtain your customers’ consent to
be billed for each Transaction or, as the case may be, on a
recurring basis, in compliance with applicable legal
requirements and Visa Europe Ltd., Visa U.S.A., Inc., Visa
Canada Inc. and Visa International (collectively, “Visa”),
MasterCard International Incorporated (“MasterCard”), American
Express or other applicable Card networks’ (such networks being,
collectively, the “Payment Networks”) payment rules (the
“Payment Network Rules”).
POS Equipment
If applicable, you may elect to purchase
POS Equipment from Shopify that will allow you to accept CP
Transactions and Keyed Transactions. POS hardware may be
purchased on the Shopify hardware store located here:
www.shopify.com/pos/hardware
(the “POS Equipment Store”). POS software may be downloaded for
iOS devices from the Apple App Store under the title “Shopify
POS” or “Shopify”. Your use of the Shopify POS hardware and
software is subject to the applicable sections of the Shopify
Platform Terms of Service.
Payment Methods
The Payments Services support most Payment Network Cards,
including credit, debit, pre-paid, or gift cards. You assume
sole and exclusive responsibility for the use of the Payments
Services. You also assume sole and exclusive responsibility for
Transactions under the Processor Terms. You are solely
responsible for verifying the identity of customers and of the
eligibility of a presented Card used to purchase your products
and services, and Shopify does not guarantee or assume any
liability for Transactions authorized and completed that may
later be reversed or charged back (see section D5 below). You
are solely responsible for all reversed or charged back
transactions regardless of the reason for, or timing of the
reversal or chargeback. Shopify or the Processor may add or remove
one or more types of Payment Networks or Cards, in their sole
discretion, at any time, without prior notice to you.
Customer Service
Shopify will use its commercially reasonable efforts to provide
you with customer support to help resolve issues relating to the
Payments Services. The Processor retains sole and exclusive
responsibility for Payment Processing of Transactions, including
the settlement of funds, but Shopify will provide reasonable
assistance in liaising between you and the Processor concerning
the Payment Processing services. You assume sole and exclusive
responsibility for providing customer service or support to your
customers for any and all issues related to your products and
services, including, but not limited to, issues arising from the
processing of Cards through the Payments Services.
Taxes
You have sole and exclusive responsibility to determine what, if
any, taxes apply to the sale of your goods and services and/or
the payments you receive in connection with your use of the
Payments Services ("Taxes"). It is solely your responsibility to
assess, collect, report, or remit the correct Taxes to the
proper tax authority, whether in customers’ jurisdictions, your
jurisdiction or elsewhere. We are not obligated to, nor will we,
determine whether Taxes apply, or calculate, collect, report, or
remit any Taxes to any tax authority, arising from any
Transaction. Shopify retains the right, but not the obligation,
at its sole discretion, to complete and file tax or related
reports with tax authorities regarding Transactions in those
jurisdictions where Shopify deems such reporting necessary. You
hereby indemnify and hold Shopify harmless from and against any
and all liability related to Taxes and filings made by Shopify
in respect thereof. You agree that we may send you any
tax-related information electronically.
Your Customers
If prohibited by law, you will not impose any fee or surcharge
on a customer that seeks to use an eligible Card. You will
provide an informational slip or receipt to your customer at the
conclusion of the Transaction that includes all information
required under Payment Network Rules and applicable law.
Security
We maintain commercially reasonable administrative, technical
and physical procedures to protect all the personal information
regarding you and your customers that is stored in our servers
from unauthorized access, accidental loss, or modification.
Shopify cannot, however, guarantee that unauthorized third
parties will never be able to defeat those measures or use such
personal information for improper purposes.
Data Security
You assume full responsibility for the
security of data on your website or otherwise in your possession
or control. You agree to comply with all applicable laws and
rules in connection with your collection, security, and
dissemination of any personal, financial, Card, or Transaction
information (collectively, “Data", and as pertains to your
customers, “Cardholder Data”). You agree that at all times you
shall be compliant with applicable Payment Card Industry Data
Security Standards (“PCI-DSS”) and, as applicable, the Payment
Application Data Security Standards (“PA-DSS”). You agree to
promptly provide Shopify with documentation evidencing your
compliance with PCI-DSS and/or PA-DSS upon request. You also
agree that you will use only PCI-DSS and PA-DSS compliant
service providers in connection with the storage or transmission
of Card information, including a cardholder’s account number,
expiration date, and CVV2. You must not store CVV2 data at any
time. Information on PCI-DSS can be found on the PCI Council’s
website. It is your
responsibility to comply with these standards and all the
Payment Network Rules. We may request additional security measures
at any time and reserve the right to adjust these requirements at
our discretion.
Audit Right
If Shopify believes that a security breach, personal data
breach, or other compromise of data may have occurred, Shopify
may require you to have a third-party auditor that is approved
by Shopify conduct a security audit of your systems and
facilities and issue a report to be provided to Shopify and, at
Shopify’s discretion, to the Processor, its Financial Services
Provider, Payment Networks, and law enforcement, at your sole
cost and expense.
Privacy
Your privacy and the protection of your data
are very important to us. You acknowledge that you have
received, read in full, and agree with the terms of our Privacy
Policy, our Data
Processing Addendum, and the
Processor’s Privacy Policy.
Our Privacy Policy and Data Processing Addendum are hereby
incorporated into this Agreement. Shopify’s Privacy Policy and
the Processor’s Privacy Policy contain important information
about the collection, use, retention, and disclosure of personal
information, as well as other important matters, and explains
how and for what purposes we and the Processor collect, use,
retain, disclose and safeguard the information you provide to
us. You agree that Shopify’s Privacy Policy and the Processor’s
Privacy Policy may be modified at Shopify’s or the Processor’s
option, if necessary, and you will check each Privacy Policy on
a regular basis. You also acknowledge that the Processor is
required to report your business name and the name of your
principals to the Member Alert to Control High-Risk merchants
list of MasterCard (“MATCH List”) maintained by MasterCard and
accessed and updated by American Express, to the VMAS database
upheld by Visa Europe, and/or to the Consortium Merchant
Negative File maintained by Discover, if applicable, pursuant to
the requirements of the Payment Network Rules. Additionally, you
agree that Shopify’s collection, use, retention, and disclosure
of personal information is subject to our Data Processing
Addendum.
We will at all times comply with the provisions of applicable
data protection law, including the EU General Data Protection
Regulation (“GDPR”), as applicable. If we process any of your
personal data when performing our obligations under this
Agreement, we will do so as a “data controller”, as defined by
the GDPR. If we process any Cardholder Data on your behalf, we
and you both agree that it is our intention that you shall be
the “data controller” and we shall be the “data processor” in
relation to that data, as those terms are defined in the GDPR.
We shall process the personal data only in accordance with the
terms of this Agreement and any lawful instructions reasonably
given by you to us from time to time. Additionally, you
acknowledge that the Processor acts as a “data controller”,
or as otherwise agreed between you and the Processor, with
regards to any personal data that they may process under this
Agreement and that we are not responsible for how they process
such data.
We will notify you (within a reasonable time frame) if we
receive a request from a person to have access to, or to erase
that person’s personal data, a complaint or request relating to
your obligations under applicable data protection legislation,
or any other communication relating directly to the processing
of any personal data in connection with this Agreement. You
acknowledge that such requests may be subject to independent
legal retention or confidentiality requirements, as permitted by
the GDPR.
We will provide you with reasonable co-operation and assistance
in relation to any complaint or request made in respect of any
personal data processed by us on your behalf, including by
providing you with details of the complaint or request, helping
you to comply with any data subject access requests (within the
relevant timescales set out in applicable data protection
legislation), and providing you with any personal data we hold
in relation to a person making a complaint or request (again,
within a reasonable timescale).
You acknowledge that we are relying on you for direction as to
the extent to which we are entitled to use and process the
personal data in the Cardholder Data that you provide us with.
Consequently, we will not be liable for any claim brought by a
data subject arising from any action or omission by us, to the
extent that such action or omission resulted from your
instruction.
You consent to the exchange of your information between the
account you have established through the Shopify Platform
Services and the Payments Services established under this
Agreement. Shopify will commingle such accounts and refers to
them together in this Agreement as the “Shopify Payments
Account”.
Where a data subject is located in the U.K. or the European
Economic Area that data subject's personal data will be processed
by Shopify International Limited, in accordance with our Privacy
Policy. As part of providing the Payments Services, this personal
data may be transferred to other regions, including to Canada and
the United States. Additionally, in order to process, use, record,
and disclose your personal information, information related to
your business, and Data, we or our agents may transfer such
information to and receive it from the Processor, its Financial
Services Provider, or their respective agents and, in so doing,
we may transmit or possess it outside of your jurisdiction.
Additionally, in order to provide the Payments Services, we use
a variety of third party “sub-processors” that fall into many
broad categories—for example, we use sub-processors to help us:
(i) protect you and Shopify from potentially risky transactions,
security threats, or fraud; (ii) perform administrative tasks;
(iii) deliver portions of the Payments Services (e.g., third
parties that work with us to actually process credit card
payments or conduct any shipping); (iv) develop and improve our
products and the Payments Services; (v) generate analytics or
other information relating to the Payments Services; and, (vi)
build our technical infrastructure (e.g., using cloud storage
providers or information security vendors). By using the
Payments Services, you consent to our use of sub-processors,
which is described in more detail in our Privacy
Policy.
Privacy of Others
You represent to us that you are in compliance with all
applicable privacy laws and that you maintain a publicly
accessible privacy policy that accurately discloses how you
collect, use, and disclose personal data, including through the
Payments Services. Additionally, you represent to us that you
have obtained all necessary rights and consents under applicable
law to allow us and the Processor to collect, use, retain, and
disclose any Cardholder Data that you provide to, or authorize
us to collect, including information that we may collect
directly from you of your customers via cookies or other means
and to use that data to provide the Payments Services (e.g., to
process Transactions and to screen for fraud or compliance
purposes).
Further, you represent that we will not be in breach of any such
laws by collecting, receiving, using, and disclosing such
information in connection with the Payments Services as
described in our Privacy
Policy. As between the
parties to this Agreement, you are solely responsible for
disclosing to your customers that we will collect and process
their Cardholder Data in our supply of the Payments Services to
you, and that in so doing we may transmit or possess it outside
of your or their jurisdiction, and that it may be subject to
disclosure as required by applicable law.
If you receive information about others, including cardholders
and other customers, through the use of the Payments Services,
you must keep such information confidential and only use it in
connection with the Payments Services or as otherwise permitted
by the subject of such information.
You may not disclose or distribute any such information to a
third party or use any such information for marketing purposes
unless you receive the express consent of the subject thereof to
do so. You may not disclose Cardholder Data to any third party
other than in connection with processing a Transaction requested
by your customer.
Restricted Use
You are required to obey all laws, rules, and regulations
applicable to your use of the Payments Services (e.g., including
those governing financial services, consumer protections, unfair
competition, anti-discrimination, or false advertising). In
addition to any other requirements or restrictions set forth in
this Agreement, you shall not: (i) utilize the credit available
on any Card to provide cash advances to cardholders; (ii) submit
any Transaction for processing that does not arise from your
sale of goods or service to a customer; (iii) act as a payment
intermediary or aggregator or otherwise resell the Payments
Services on behalf of any third party; (iv) send what you
believe to be potentially fraudulent authorizations or
fraudulent Transactions; (v) use the Payments Services or
the Payment Processing services in a manner that a Payment
Network reasonably believes to be an abuse of the Payment
Network or a violation of the Payment Network Rules; or, (vi)
work around any of the technical limitations of the Payments
Services or Shopify’s checkout, use any tool to enable features
or functionalities that are otherwise disabled in the Payments
Services, or decompile, disassemble, or otherwise reverse engineer
the Payments Services, except to the extent that such
restriction is expressly prohibited by law.
You further agree not to permit any third party to do any of the
following: (i) access or attempt to access our systems,
programs, or data that are not made available for public use;
(ii) copy, reproduce, republish, upload, post, transmit, resell,
or distribute, in any way, material from us; (iii) permit any
third party to use and benefit from the Payments Services via a
rental, lease, timesharing, service bureau, or other
arrangement; (iv) transfer any rights granted to you under this
Agreement; (v) work around any of the technical limitations of
the Payments Services or Shopify’s checkout, use any tool to enable features or
functionalities that are otherwise disabled in the Payments
Services, or decompile, disassemble, or otherwise reverse
engineer the Payments Services, except to the extent that such
restriction is expressly prohibited by law; (vi) perform or
attempt to perform any actions that would interfere with the
proper working of the Payments Services, prevent access to or
use of the Payments Services by our other users, or impose an
unreasonable or disproportionately large load on our
infrastructure; or, (vii) otherwise use the Payments Services
except as expressly allowed under this section.
Suspicion of Unauthorized or Illegal Use
We reserve the right to not provide the Payments Services in
respect of any Transaction you submit that we believe, in our
sole discretion, is in violation of this Agreement, any other
Shopify or Processor agreement, or exposes you, Shopify, the
Processor, or any other third party to actual or potential risk
or harm, including, but not limited to, fraud and other criminal
acts. You are hereby granting us authorization to share
information with law enforcement about you, your Transactions,
or your Shopify Payments Account.
Payment Network Rules
The Payment Networks have
established guidelines, bylaws, rules, and regulations in the
form of the Payment Network Rules. You are required to comply
with all applicable Payment Network Rules. The Payment Network
Rules for Visa, MasterCard and American Express are available on
the Internet at the following links:
Visa,
MasterCard
and American
Express.
The Payment Networks may amend the Payment Network Rules at any
time and without notice to us or to you. Insofar as the terms of
this Agreement and/or the Processor Terms are inconsistent with
the Payment Network Rules, the Payment Network Rules shall
prevail. We reserve the right to amend this Agreement at any
time, with notice to you, as may be necessary to comply with the
Payment Network Rules.
Disclosures and Notices
You agree that Shopify can provide disclosures and notices,
including tax forms, that we deem appropriate regarding the
Payments Services to you by posting such disclosures and notices
in your Shopify Admin, emailing them to the email address listed
in your Shopify Account, or mailing them to the address listed
in your Shopify Account. You also agree that electronic
disclosures and notices have the same meaning and effect as if
we had provided you with a paper copy. Such disclosures and
notices shall be considered to be received by you within
twenty-four (24) hours of the time it is posted to your Shopify
Admin or emailed to you, unless we receive notice that the email
was not delivered.
Automatic Reminders
We may use automated telephone dialing, text messaging systems,
and email to provide messages to you about your Shopify Payments
Account. The telephone messages may be played by a machine
automatically when the telephone is answered, whether answered
by you or another party. These messages may also be recorded by
your answering machine or voicemail. You give us permission to
call or send a text message to any telephone number that you
have given us and to play pre-recorded messages or send text
messages with information about this Agreement or your account
over the phone. You agree that we will not be liable to you for
any such calls or electronic communications even if information
is communicated to an unintended recipient. You understand that
when you receive such calls or electronic communications you may
incur a charge from the company that provides you with
telecommunications, wireless and/or Internet services. You agree
that we have no liability for such charges. You agree to
immediately notify us if you change telephone numbers or are
otherwise no longer the subscriber or customary user of a
telephone number or email address you have previously provided
to us.

B. Getting a Payments Services Account

Registration
The Payments Services are only made available to persons in
Austria that operate a business selling goods and services. You
may not use the Payments Services for non- commercial, personal,
family, or household purposes. To use Shopify Payments for your
business, you are required to register for a Shopify Payments
Account. When you register for a Shopify Payments Account, we
will collect information such as your name (if you are a sole
proprietor), your business or trade name, your address, email,
phone number, business identification or registration number,
and certain other information that we require. We may also
collect personal information (including name, birthdate, and
government-issued identification number) about your beneficial
owners or principals.
You may register as an individual (sole proprietor) or as a
corporation or other legal entity. If you register as a
corporation or other legal entity, you must be authorized to act
on behalf of such entity, have the authority to bind the entity
to this Agreement, and you must agree to this Agreement on
behalf of such entity. If you have so agreed, the term
"Merchant", “you” or “your” will mean you, the natural person
acting as a business, if you are a sole proprietor, or if you
have registered as a corporation or other legal entity, it will
mean that entity. You understand that by registering for a
Shopify Payments Account, you are also registering for a
Processor Account under the Processor Terms and that you are
simultaneously providing your information to Shopify for the
purpose of opening a Shopify Payments Account, and to the
Processor for the purpose of establishing your Processor
Account.
Company Descriptions and Site URL
As part of your registration, you must provide the name under
which you do business (which may be the business’ legal name or
a "doing business name") (e.g. MyStore Online Widgets) and a
billing descriptor. These two fields and your site URL may appear
in your customers’ credit or debit card statements. To avoid
customer confusion and transaction disputes it is important that you enter a
description that clearly identifies your business. You hereby
agree to indemnify us from any costs, liabilities, losses, or
expenses from disputes due to your failure to do so.
Verification and Underwriting
To verify your identity, we may require additional information,
including your company registration number or business number,
your HST, GST, or tax number, and, if applicable, your date of
birth. We may also ask for additional information to help verify
your identity and assess your business risk, including, but not
limited, to business invoices, reseller authorization or
distributor information, a driver’s license or other government
issued identification, or business license, for you or for any
of the owners or principals of your business. We may ask you for
your financial statements. We may request your permission to do
a physical inspection at your place of business and to examine
books and records that pertain to your compliance with this
Agreement. Your failure to comply with any of these requests
within five (5) days may result in suspension or termination of
your Shopify Payments Account and the Processor Account. You
authorize us to retrieve additional information about you from
third parties and other identification services. We reserve the
right to hold funds in your Shopify Payments Account while
awaiting the information requested above. Shopify may use your
information to apply for card merchant acquiring accounts on
your behalf with certain Payment Networks (such as American
Express).
After we have collected and verified all your information, we
will review your account and determine if you are eligible to
use the Payments Services. We will notify you once your Shopify
Payments Account has been either approved or deemed ineligible
for use of the Payments Services.
By accepting the terms of this Agreement, you are providing us
with authorization to retrieve information about you by using
third parties, including credit bureaus and other information
providers. You acknowledge that such information retrieved may
include your name, address history, credit history, and other
data about you. We may periodically update this information to
determine whether you continue to meet the eligibility
requirements for a Shopify Payments Account.
You agree that Shopify is permitted to contact and share
information about you and your application (including whether
you are approved or declined), your Shopify Payments Account,
and the Processor Account with the Processor and other third
parties in order to perform the Payments Services. This includes
sharing information: (i) about Transactions for regulatory or
compliance purposes; (ii) for use in connection with the
management and maintenance of the Payments Services; (iii) to
create and update our and their customer records about you, and
to assist us and them in better serving you; and, (iv) to
conduct our and their risk management process.
Designated Country
In registering for a Shopify Payments Account, you are obliged
to identify the location from where you are operating the
business that will use the Payments Services in Austria. By
registering for a Shopify Payments Account, you are confirming
that you are either a legal resident of Austria or you are duly
established and, if necessary, registered or licensed as a
business entity authorized to conduct business in Austria. The
Payments Services and Shopify Payments Account may only be used
in Austria. By accepting this Agreement, you confirm that you
will satisfy these requirements.
Prohibited Businesses
The following categories of businesses and business practices
are prohibited from using the Payments Services (“Prohibited
Businesses”). Prohibited Business categories may be imposed by
law or through the Payment Network Rules, by Shopify or the
requirements of the Processor’s Financial Services Providers.
The types of businesses listed below are representative but not
exhaustive. If you are uncertain as to whether your business is
a Prohibited Business or have questions about how these
requirements apply to you, please contact
us. We may
add to or update the Prohibited Business list at any time.

Financial and professional services

Investment and credit services: Securities brokers; mortgage consulting or debt reduction services; credit counselling or repair; real estate opportunities; lending instruments
Money and legal services: Money transmitters, check cashing, wire transfers, money orders; currency exchanges or dealers; bail bonds; collections agencies; law firms collecting funds for any purpose other than to pay fees owed to the firm for services provided by the firm (e.g., firms cannot use Shopify Payments to hold client funds, collection or settlement amounts, disputed funds, etc.)
Virtual currency or stored value: Virtual currency that can be monetized, resold, or converted to physical or digital products and services or otherwise exit the virtual world (e.g., Bitcoin); sale of stored value, or credits maintained, accepted and issued by anyone other than the seller

IP Infringement, regulated or illegal products and services

Adult content and services: Pornography and other obscene materials (including literature, imagery and other media); sites offering any sexually-related services such as prostitution, escorts, pay-per-view, adult live chat features
Counterfeit or unauthorized goods: Unauthorized sale or resale of brand name or designer products or services; sale of goods or services that are illegally imported or exported
Gambling: Lotteries; bidding fee auctions; sports forecasting or odds making; fantasy sports leagues with cash prizes; internet gaming; contests; sweepstakes; games of chance
Intellectual property or proprietary rights infringement: Sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder; any product or service that directly infringes or facilitates infringement upon the trademark, patent, copyright, trade secrets, or proprietary or privacy rights of any third party; use of Shopify intellectual property without express consent from Shopify; use of the Shopify name or logo, including use of Shopify trade or service marks inconsistent with the Shopify Trademark Usage Guidelines, or in a manner that otherwise harms Shopify or the Shopify brand; any action that implies an untrue endorsement by or affiliation with Shopify
Regulated or illegal products or services: Cannabis dispensaries and related businesses; sale of tobacco, e-cigarettes, and e-liquid; online pharmacies; age restricted goods or services; weapons and munitions; gunpowder and other explosives; fireworks and related goods; toxic, flammable, and radioactive materials; products and services with varying legal status on a regional basis; goods or services, the sale of which is illegal under applicable law in the jurisdictions to which your business is targeted or directed
Sanctions: Use of the Payments Services or use of Shopify Payments in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including any person/entity on government sanctions lists

Products or services that are otherwise prohibited by law or our financial partners

Aggregation: Engaging in any form of licensed or unlicensed aggregation of funds owed to third parties, factoring, or other activities intended to obfuscate the origin of funds
Drug paraphernalia: Any equipment designed for making or using drugs, such as bongs, vaporizers, and hookahs
High risk businesses: Bankruptcy lawyers; computer technical support; travel reservation services and clubs; airlines; cruises; timeshares; prepaid phone cards, phone services, and cell phones; telemarketing, telecommunications equipment and telephone sales; forwarding brokers; negative response marketing; credit card and identity theft protection; the use of credit to pay for lending services; any businesses that we believe poses elevated financial risk, legal liability, or violates card network or bank policies; any business or organization that a. engages in, encourages, promotes or celebrates unlawful violence or physical harm to persons or property; or, b. engages in, encourages, promotes or celebrates unlawful violence toward any group based on race, religion, disability, gender, sexual orientation, national origin, or any other immutable characteristic
Multi-level marketing: Pyramid schemes network marketing and referral marketing programs
Pseudo pharmaceuticals: Pharmaceuticals and other products that make health claims that have not been approved or verified by the applicable local and/or national regulatory body
Social media activity: Sale of Twitter followers, Facebook likes, YouTube views, Instagram followers, and other forms of social media activity
Substances designed to mimic illegal drugs: Sale of a legal substance that provides the same effect as an illegal drug (e.g., salvia, kratom)
Use of Shopify Payments in a manner inconsistent with its intended use or as expressly prohibited in the Processor Terms: Use of Shopify Payments principally as a virtual terminal (e.g., submitting card transactions by manually inputting card information); processing where there is no bona fide good or service sold, or donation accepted; card testing; evasion of card network chargeback monitoring programs; sharing cardholder information with another merchant for payment or upsell cross-sell product service
Video game or virtual world credits: Sale of in-game currency unless the merchant is the operator of the virtual world

Unfair, predatory, or deceptive practices

Get rich quick schemes: Investment opportunities or other services that promise high rewards
Mug shot publication or pay-to-remove sites: Platforms that facilitate the publication and removal of content (such as mug shots), where the primary purpose of posting such content is to cause or raise concerns of reputational harm
No-value-added services: Sale or resale of a service without added benefit to the buyer; resale of government offerings without authorization or added value; sites that we determine in our sole discretion to be unfair, deceptive, or predatory towards consumers

C. Processing Card Transactions and Receiving Your Funds

Shopify Payments Fees
You agree to pay the fees for
processing that are set out in your Shopify Admin, which are
incorporated herein by reference (the "Processing Fees").
Processing Fees shall be collected from you by the Processor on
our behalf in accordance with the terms of the Stripe Connected
Account
Agreement.
If applicable, fees for POS Equipment are posted here:
www.shopify.com/pos/hardware
and here:
www.shopify.com/pricing (the
“POS Equipment Fees”). At our discretion, POS Equipment Fees
will be collected on our behalf by the Processor pursuant to the
Processor Terms or by such other means as we may prescribe from
time to time.
Fees for Shopify Platform Services are collected by Shopify
pursuant to the Shopify Platform Terms of
Service (the "Shopify
Platform Services Fees"). Processing Fees, Equipment Fees, and
Shopify Platform Services Fees shall be referred to herein
collectively as the "Fees".
You are obligated to pay all applicable taxes, fees and other
charges imposed by any governmental authority, including,
without limitation, any value added tax, goods and services tax,
harmonized sales tax and/or provincial or territorial sales tax,
on the Payments Services provided under this Agreement. If you
are tax-exempt, you will provide us with an appropriate
certificate or other evidence of tax exemption that is
satisfactory to us.
We reserve the right to change the Fees at any time, subject to
a thirty (30) day notice period to you in accordance with
Section A18. If you continue to use the Payments Services and
the Processor Services for such thirty (30) days, then you are
deemed to have accepted the change in Fees contemplated by such
notice.
In addition to the Fees, you are also responsible for any
penalties and fines imposed on you or on us by any bank, money
services business, payment network, financial institution, or
other financial intermediary resulting from your use of the
Payments Services in a manner not permitted by this Agreement or
by such financial intermediary’s rules and regulations.
Security Interest
As security for performance of your
obligations under this Agreement, you grant us a first priority
lien and security interest on all funds processed and deposited
into all Payout Accounts (as defined in the Processor Terms),
and any other bank accounts associated with your Shopify
Payments Account, and in any funds processed using the Payment
Processing services. These security interests and liens will
secure payment and performance of all of your obligations under
this Agreement and any other agreements now existing or later
entered into between us and you, including, without limitation,
your obligation to pay any amounts due and owing to us. You will
execute, deliver and pay the fees for any documents we request
to create, perfect, maintain, and enforce this security
interest.
Our Collection Rights
To the extent permitted by law, we may collect any obligations
you owe us under this Agreement by requesting that the Processor
deduct the corresponding amounts from the Reserve Account (as
that term is defined below) or from funds payable to you arising
from the settlement of Transactions. Fees will be assessed at
the time a Transaction is processed and will be first deducted
from the funds received for such Transaction. If these amounts
are not sufficient to meet your obligations to us, we may charge
the payment method associated with your Shopify Payments Account
for any amounts owed to us. Your failure to fully pay amounts
that you owe us on demand will be a breach of this Agreement.
You will be liable for our costs associated with collection in
addition to the amount owed, including, without limitation,
attorneys’ fees and expenses, costs of any arbitration or court
proceeding, collection agency fees, and any applicable interest.
Further, we may deduct, or request that the Processor deduct, from
any accounts associated with your Shopify Payments Account, including
the Processor Account and the Reserve Account, any amounts that you
owe to us under this Agreement or any other agreement you have
entered into with us or our affiliates.
Additionally, we may require a personal guarantee from a
principal of a business for funds owed under this Agreement. If
we require a personal guarantee we will specifically inform you
in advance.
In addition to the amount due, delinquent accounts may be
charged with fees that are incidental to the collection of
delinquent accounts and chargebacks, including, but not limited
to, collection fees and convenience fees and other third-party
charges.
You hereby explicitly agree that all communication in relation
to delinquent accounts will be made by electronic mail or by
phone, as provided to Shopify by you. Such communication may be
made by Shopify or by anyone on its behalf, including, but not
limited to, a third-party collection agent.
Reserves
Funds held in reserves are amounts of money set
aside to cover chargebacks, refunds, or other payment
obligations under this Agreement (the "Reserve Account"). We, in
our discretion, will set the terms of your Reserve Account and
notify you of such terms, which may require that a certain
amount (including the full amount) of the funds received for a
Transaction are held for a period of time, or that additional
amounts are held in the Reserve Account. We, in our discretion,
may elect to change the terms of the Reserve Account at any
time, for any reason, based on your payment processing history
or as requested by our payment processors.
We may require you to fund the Reserve Account by means of: (i)
any funds payouts made or due to you for Transactions submitted
to the Payments Services; or, (ii) amounts available in your
bank account by means of ACH debit to your Shopify Payments
Account; or, (iii) other sources of funds associated with your
Shopify Payments Account; or, (iv) requesting that you provide
funds to us for deposit to the Reserve Account.
In accordance with the Processor Terms you authorize us to debit
your bank account without separate notice, and according to
the applicable User Bank Account Debit Authorization (as defined
in the Processor Terms),
to collect amounts you owe under this Agreement.
You agree that: (i) you are not entitled to any interest or
other compensation associated with the funds held in the Reserve
Account; (ii) you have no right to direct that account; (iii)
you have no legal interest in those funds or that account; and,
(iv) you may not assign any interest in those funds or that
account.
Contesting Chargebacks
You or Shopify may elect to
contest chargebacks assessed to your account. Shopify may
provide you with assistance, including notifications and
software to help contest your chargebacks. We do not assume any
liability for our role or assistance in contesting chargebacks.
You grant us permission to share records or other information
required with the cardholder, the cardholder’s financial
institution, and your financial institution to help resolve any
chargeback. You acknowledge that your failure to provide us with
complete and accurate information in a timely manner may result
in an irreversible chargeback being assessed.
If the cardholder’s issuing bank or the Payment Network does not
resolve a dispute in your favor, we may recover the chargeback
amount and any associated fees from you as described in this
Agreement.
We reserve the right, upon notice to you, to charge a fee for
mediating or investigating chargeback disputes.

D. Termination and Other General Legal Terms

Term
The Agreement is effective upon the date you agree
to it (by electronically indicating acceptance) and continues so
long as you use the Payments Services or until terminated by you
or by Shopify.
Termination
You may terminate this Agreement by closing your Shopify
Payments Account at any time by following the instructions in
your Shopify Admin. We may terminate this Agreement and close
your Shopify Payments Account at any time, for any reason, upon
notice to you in accordance with Section A18 above. We may
suspend your Shopify Payments Account and your access to the
Payments Services and any rights in respect of your Shopify
Payments Account, or terminate this Agreement, at any time, for
any reason, including if: (i) we determine that you may be
ineligible for the Payments Services because of the risk
associated with your Shopify Payments Account, including,
without limitation, significant credit or fraud risk, or for any
other reason; (ii) you do not comply with any of the provisions
of this Agreement or the Processor Terms; or, (iii) upon request
of the Payment Network, the Processor, or a Card issuer.
Termination of the Processor Terms may, at the discretion of
Shopify, result in a termination of this Agreement. Termination
of this Agreement shall entitle Shopify to cause the Processor
to terminate the Processor Terms.
If the Processor terminates the Processor Terms or indicates its
intention to do so, or if you elect to cease processing with
such Processor, we have the right, but not the obligation, to
offer you a substitute payment processor that is integrated with
the Shopify Payments Account. Upon your acceptance of the terms
of service of such substitute payment processor, they shall be
deemed to have replaced the Processor contemplated herein,
provided that your liabilities to the Processor herein shall not
be diminished on account of accepting the terms of the
substitute payment processor.
Effects of Termination
Upon termination and closing of
your Shopify Payments Account, we will immediately discontinue
your access to the Payments Services. You agree to complete all
pending Transactions, immediately remove all logos for Cards,
and stop accepting new Transactions through the Payments
Services. You will not be refunded the remainder of any Fees
that you have paid for the Payments Services if your access to
or use of the Payments Services is terminated or suspended. Any
funds in the Financial Services Provider’s custody will be paid
out to you subject to the terms of your Payout Schedule (as
defined in the Processor Terms).
Termination does not relieve you of your obligations as defined
in this Agreement, and the Processor may elect to continue to
hold any funds deemed necessary, pending resolution of any other
terms or obligations defined in this Agreement, including, but
not limited to, chargebacks, fees, refunds, or other
investigations or proceedings.
Termination of this Agreement will not necessarily terminate
your Shopify Platform Terms, unless Shopify determines
otherwise.
Upon termination you agree: (i) to immediately cease your use of
the Payments Services; (ii) to discontinue use of any Shopify or
Processor trademarks and to immediately remove any Shopify or
Processor references and logos from your website and/or physical
location, if applicable; (iii) that the license granted under
this Agreement shall end; (iv) that we reserve the right (but
have no obligation) to delete all of your information and
account data stored on our servers; (v) that we will not be
liable to you for compensation, reimbursement, or damages in
connection with your use of the Payments Services, or any
termination or suspension of the Payments Services, or deletion
of your information or account data; and, (vi) that you will
still be liable to us for any fees or fines, or other financial
obligation incurred by you or through your use of the Payments
Services prior to termination.
Ownership
The Payments Services are licensed and not
sold. We reserve all rights not expressly granted to you in this
Agreement. The Payments Services are protected by copyright,
trade secret, and other intellectual property laws. We own the
title, copyright, and other worldwide Intellectual Property
Rights (as defined below) in the Payments Services and all
copies of the Payments Services. This Agreement does not grant
you any rights to our trademarks or service marks.
For the purposes of this Agreement, “Intellectual Property
Rights" means all patent rights, copyright rights, mask work
rights, moral rights, rights of publicity, trademark, trade
dress and service mark rights, goodwill, trade secret rights and
other intellectual property rights as may now exist or hereafter
come into existence, and all applications therefore and
registrations, renewals and extensions thereof, under the laws
of any state, country, territory or other jurisdiction.
You may choose to, or we may invite you to submit comments or
ideas about the Payments Services, including, without
limitation, about how to improve the Payments Services or our
products (“Ideas”). By submitting any Idea you agree that your
disclosure is gratuitous, unsolicited and without restriction,
and will not place us under any fiduciary or other obligation,
and that we are free to use the Idea without any additional
compensation to you, and/or to disclose the Idea on a
non-confidential basis or otherwise to anyone. You further
acknowledge that, by acceptance of your submission, we do not
waive any rights to use similar or related ideas previously
known to us, or developed by our employees, or obtained from
sources other than you.
Your Liability and Indemnification Concerning Liabilities
Nothing in this Agreement shall serve to diminish
your liability under the Processor Terms or Shopify Platform
Terms. You are obliged to fulfill your obligations under this
Agreement and those under the Processor Terms and Shopify
Platform Terms.
Shopify has agreed to indemnify and hold the Processor harmless
for some, and, in some cases, all of your liabilities occurring
under the Processor Terms, including, but not limited to,
disputes (including, but not limited to, chargebacks), refunds,
reversals, returns and fines (as such terms are defined in the
Processor Terms). Insofar as Shopify becomes liable to the
Processor or any other third party for any penalties, fines,
fees, or other liabilities under or in respect of the Processor
Terms, the Payments Services, the Payment Processing services,
or the Payment Network Rules, you agree to indemnify and hold
Shopify harmless from and against any and all such liabilities.
Additionally, we may require a personal guarantee from a
principal of a business for funds owed under this Agreement.
You agree to indemnify and defend Shopify, our affiliates, and
their respective employees, agents and service providers (each,
a “Shopify Entity”) against any claim, suit, demand, loss,
liability, damage, action, or proceeding (each, a “Claim”)
brought by a third party against a Shopify Entity, and you agree
to fully reimburse the Shopify Entities for any Claims that
result from: (i) your breach of any provision of this Agreement;
(ii) any fees, fines, penalties, disputes, reversals, returns,
chargebacks (as such terms are defined in the Processor Terms),
or any other liability we incur that results from your use of
the Payments Services; (iii) negligent or willful misconduct of
your owners, employees, contractors, or agents; (iv) contractual
or other relationships between you and your customers; or, (v)
third-party indemnity obligations we incur as a direct or
indirect result of your acts or omissions, including, but not
limited to, indemnification of the Processor or any Payment
Network.
We will have the final decision-making authority with respect to
Claims, including, without limitation, claims for refunds for
purchased items that are filed with us by you or your customers.
You will be required to reimburse us for your liability. Your
liability will include the full purchase price of the item plus
the original shipping cost (and in some cases you may not
receive the item back). You will not receive a refund of any
Fees paid to us.
If you are liable for any amounts owed to us, we may immediately
remove such amounts from your Reserve Account and deduct the
amounts owed to us from such Reserve Account funds. If you do
not have sufficient funds in the Reserve Account to cover your
liability, you will be required to immediately add additional
funds to your Reserve Account to cover funds owed to us. If you
do not do so, we may engage in collections efforts to recover
such amounts from you at your cost and expense.
Your Representations, Warranties and Covenants
You represent and warrant to us that: (i) if you are a sole
proprietor, you are at least eighteen (18) years of age or, if
you are a corporation or other entity, that the person entering
into this Agreement on your behalf is at least eighteen (18)
years of age, is authorized to act on your behalf, and has the
authority to bind you to this Agreement; (ii) you are eligible
to register and use the Payments Services and have the right,
power, and ability to enter into and perform under this
Agreement; (iii) the name identified by you when you registered
is your name or business name under which you sell goods and
services and the information that you have provided to us is
accurate and complete; (iv) you are not a member of an organized
crime group, a party who has been a member of an organized crime
group in the past five years, a quasi-member of an organized
crime group, a corporate racketeer, or other similar party, nor
are any of your officers or employees a member of the foregoing;
and, (v) you will not carry out, nor use a third party to carry
out, any of the following unlawful acts: (a) the act of making
violent demands; (b) the act of making unreasonable demands
exceeding legal responsibilities; (c) the act of using
threatening behavior or violence in relation to a transaction;
(d) the act of spreading rumors, using fraudulent means, or
using force to harm the other party’s reputation or obstruct the
party’s business; (e) the act of selling products for the
purpose of money laundering; (f) the act of using a Card held by
you for a sale without reasonable grounds or another act similar
to those set forth in (a) through (f).
You hereby covenant to us that: (i) any Transactions submitted
by you will represent a bona fide sale by you; (ii) any
Transaction submitted by you will accurately describe the goods
and/or services sold and delivered to a customer; (iii) you will
fulfill all of your obligations to each customer for which you
submit a Transaction and will resolve any disputes or complaints
directly with your customers; (iv) you and all Transactions
initiated by you will comply with all applicable laws, rules,
and regulations applicable to your business, including, but not
limited to, any applicable tax laws and regulations; (v) except
in the ordinary course of business, no Transaction submitted by
you through the Payments Services will represent a sale to any
principal, partner, proprietor, or owner of your entity; (vi)
you will not use the Payments Services, directly or indirectly,
for any fraudulent undertaking or in any manner so as to
interfere with the use of the Payments Services; and, (vii) any
information you provide to us will be accurate and complete.
NO WARRANTIES
THE PAYMENTS SERVICES AND ALL ACCOMPANYING DOCUMENTATION ARE
PROVIDED ON AN “AS IS" AND “AS AVAILABLE" BASIS, WITHOUT ANY
WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT. USE OF THE PAYMENTS SERVICES IS AT YOUR OWN
RISK.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY
YOU FROM OR THROUGH THE PAYMENTS SERVICES OR FROM: (I) SHOPIFY;
(II) THE PROCESSOR, SUPPLIERS OR LICENSORS OF SHOPIFY OR THE
PROCESSOR; OR, (III) ANY OF THE RESPECTIVE AFFILIATES, AGENTS,
DIRECTORS, AND EMPLOYEES OF ANY OF THE ENTITIES LISTED IN (I) OR
(II) ABOVE (COLLECTIVELY, THE “DISCLAIMING ENTITIES" AND
INDIVIDUALLY, A “DISCLAIMING ENTITY”), WILL CREATE ANY WARRANTY.
YOU SPECIFICALLY ACKNOWLEDGE THAT WE DO NOT HAVE ANY CONTROL
OVER THE PRODUCTS OR SERVICES THAT ARE PAID FOR WITH THE
PAYMENTS SERVICES, AND WE CANNOT ENSURE THAT YOUR CUSTOMERS WILL
COMPLETE A TRANSACTION OR ARE AUTHORIZED TO DO SO.
WITHOUT LIMITING THE FOREGOING, THE DISCLAIMING ENTITIES DO NOT
WARRANT THAT: (I) THE INFORMATION THEY PROVIDE OR THAT IS
PROVIDED THROUGH THE PAYMENTS SERVICES IS ACCURATE, RELIABLE OR
CORRECT; (II) THE PAYMENTS SERVICES WILL MEET YOUR REQUIREMENTS;
(III) THE PAYMENTS SERVICES WILL BE AVAILABLE AT ANY PARTICULAR
TIME OR LOCATION; (IV) THE PAYMENTS SERVICES WILL FUNCTION IN AN
UNINTERRUPTED MANNER OR BE SECURE; (V) ANY DEFECTS OR ERRORS
WILL BE CORRECTED; OR, (VI) THE PAYMENTS SERVICES ARE FREE OF
VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY SUBJECT MATTER DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE
USE OF THE PAYMENTS SERVICES IS DOWNLOADED AT YOUR OWN RISK AND
YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY
OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. THE DISCLAIMING
ENTITIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT HOW LONG
WILL BE NEEDED TO COMPLETE THE PROCESSING OF A TRANSACTION.
THE DISCLAIMING ENTITIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR
ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR
OFFERED BY A THIRD PARTY THROUGH THE PAYMENTS SERVICES, OR ANY
HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR
OTHER ADVERTISING, AND NEITHER SHOPIFY, THE PROCESSOR, NOR THE
FINANCIAL SERVICES PROVIDER WILL BE A PARTY TO, OR IN ANY WAY
MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF
PRODUCTS OR SERVICES.
Limitation of Liability and Damages
IN NO EVENT SHALL A
DISCLAIMING ENTITY (AS DEFINED ABOVE) BE LIABLE FOR ANY LOST
PROFITS, LOSS OF DATA, OR ANY INDIRECT, PUNITIVE, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, IN
CONNECTION WITH, OR RELATING TO THIS AGREEMENT OR THE PAYMENTS
SERVICES, INCLUDING, WITHOUT LIMITATION, THE USE OF, INABILITY
TO USE, OR UNAVAILABILITY OF THE PAYMENTS SERVICES. UNDER NO
CIRCUMSTANCES WILL ANY OF THE DISCLAIMING ENTITIES BE
RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM
HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE
PAYMENTS SERVICES OR YOUR SHOPIFY PAYMENTS ACCOUNT, OR THE
INFORMATION CONTAINED THEREIN.
THE DISCLAIMING ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY
FOR ANY: (I) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE
WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE PAYMENTS
SERVICES; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF SERVERS USED
IN CONNECTION WITH THE PAYMENTS SERVICES AND/OR ANY AND ALL
PERSONAL INFORMATION STORED THEREIN; (III) ANY INTERRUPTION OR
CESSATION OF TRANSMISSION TO OR FROM THE PAYMENTS SERVICES; (IV)
ANY SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE
THAT MAY BE TRANSMITTED TO OR THROUGH THE PAYMENTS SERVICES; (V)
ANY ERRORS, INACCURACIES OR OMISSIONS IN ANY CONTENT OR
INFORMATION, FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE
USE OF ANY CONTENT OR INFORMATION, IN EACH CASE POSTED, EMAILED,
STORED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE
PAYMENTS SERVICES; AND/OR (VI) USER CONTENT OR THE DEFAMATORY,
OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS SECTION D8,
THE DISCLAIMING ENTITIES’ CUMULATIVE LIABILITY TO YOU SHALL BE
LIMITED TO DIRECT DAMAGES, AND IN ALL EVENTS SHALL NOT EXCEED IN
THE AGGREGATE THE AMOUNT OF FEES PAID BY YOU TO SHOPIFY DURING
THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT
GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES REGARDLESS OF THE
LEGAL THEORY ON WHICH THE CLAIM IS BASED, INCLUDING, WITHOUT
LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF
SHOPIFY OR THE PROCESSOR HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE.
THE PROVISIONS OF THIS SECTION D8 SHALL APPLY TO THE FULLEST
EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Payments Services are controlled and operated from
facilities in Canada and the United States. We make no
representations that the Payments Services are appropriate or
available for use in other locations. Those who access or use
the Payments Services from other jurisdictions do so at their
own volition and are entirely responsible for compliance with
all applicable United States, Canada, foreign and local laws and
regulations, including, but not limited to, export and import
regulations. You may not use the Payments Services if you are a
resident of a sanctioned country embargoed by the United States,
Canada, or the European Union, or are a foreign person or entity
blocked or denied by the governments of the United States,
Canada or the European Union.
Disputes, Choice of Law, Jurisdiction, Venue and Miscellaneous
You agree that any disputes arising out of or
relating to this Agreement or the Payments Services shall be
resolved in accordance with this Section D9.
This Agreement is governed by the laws of Ireland except for any
security interest created pursuant to Section C2 above, which
will be governed by and construed in accordance with the laws of
the applicable country, state, province, territory, or other
jurisdiction in which such security interest is registered, and
in each case without regard to its choice of law provisions to
the contrary. The exclusive venue for any actions or claims
arising under or related to this Agreement shall be a court of
competent jurisdiction in Ireland.
Shopify may, or may direct the Processor to respond to and
comply with any subpoena, warrant, or other legal order (“Legal
Process”) that we believe to be valid. The Processor or any
applicable Financial Services Provider may deliver or hold any
funds or any Data as required under such Legal Process, even if
you are receiving funds or Data on behalf of other parties.
Where permitted by law, we will make reasonable efforts to
provide you notice of such Legal Process by sending a copy to
the email address we have on file for you. We are not
responsible for any losses, whether direct or indirect, that you
may incur as a result of our response or compliance with a Legal
Process.
Headings are included for convenience only and shall not be
considered in interpreting this Agreement. The Agreement does
not limit any rights that we may have under trade secret,
copyright, patent, or other laws. Our failure to assert any
right or provision under this Agreement shall not constitute a
waiver of such right or provision. No waiver of any term of this
Agreement shall be deemed a further or continuing waiver of such
term or any other term.
Right to Amend
We have the right to change or add to the terms of this
Agreement at any time, and to change, delete, discontinue, or
impose conditions on any feature or aspect of the Payments
Services or software with notice that we in our sole discretion
deem to be reasonable in the circumstances, including such
notice in your Shopify Admin, or any other website maintained or
owned by us for the purposes of providing services in terms of
this Agreement. Any use of the Payments Services after our
publication of any such changes shall constitute your acceptance
of this Agreement as modified.
Assignment
This Agreement, and any rights and licenses granted hereunder,
may not be transferred or assigned by you without our prior
written consent, but may be assigned by us without consent or
other restriction.
Change of Business
You agree to give us at least thirty (30) days prior
notification of your intent to change your current product or
services types, your business or trade name, or the manner in
which you accept payment. You agree to provide us with prompt
notification within three (3) days if you are the subject of any
voluntary or involuntary bankruptcy or insolvency application,
petition or proceeding, receivership, bankruptcy, or similar
action or proceeding initiated by or against you or any of your
principals (any of the foregoing, a “Bankruptcy Proceeding”).
You also agree to promptly notify us within three (3) days of
any adverse change in your financial condition, any planned or
anticipated liquidation or substantial change in the basic
nature of your business, any transfer or sale of twenty-five
percent (25%) or more of your total assets, or any change in the
control or ownership of your or your parent entity. You will
also notify us within three (3) days of any judgment, writ,
warrant of attachment or execution, or levy against twenty-five
percent (25%) or more of your total assets.
You will include us on the list and matrix of creditors as filed
with any bankruptcy, commercial or civil court in connection
with any Bankruptcy Proceeding, whether or not a claim may exist
at the time of filing. Failure to do so will be cause for
immediate termination of this Agreement and shall allow the
pursuit of any other action available to us under the applicable
Payment Network Rules or law.
Parties
This Agreement binds you and your respective heirs,
representatives, and permitted and approved successors
(including those by merger and acquisition), or any permitted
assigns.
Third-Party Services and Links to Other Web Sites
You may be offered services, products, and promotions provided
by third parties and not by us. If you decide to use these
third- party services, you will be responsible for reviewing and
understanding the terms and conditions associated with these
services. You agree that we are not responsible for the
performance of these services. The Shopify website may contain
links to third-party websites as a convenience to you. The
inclusion of any website link does not imply an approval,
endorsement, or recommendation by us. You agree that your access
to any such website is at your own risk, and that the site is
not governed by the terms and conditions contained in this
Agreement. We expressly disclaim any liability for these
websites. Please remember that when you use a link to go from
our website to another website, our Privacy Policy is no longer
in effect. Your browsing and interaction on any other website,
including those that have a link on our website, is subject to
that website’s own rules and policies.
Force Majeure
No party will be liable for delays in processing or other
non-performance caused by such events as fires,
telecommunications failures, utility failures, power failures,
equipment failures, labor strife, riots, war, terrorist attack,
non-performance of our vendors or suppliers, acts of God, or
other causes over which the respective party has no reasonable
control, except that nothing in this section will affect or
excuse your liabilities and obligations under Sections C1 or D5,
including, without limitation, for reversals, chargebacks,
claims, fines, fees, refunds or unfulfilled products and
services.
Entire Agreement and Remedies
These terms and
conditions, and all policies and procedures that are
incorporated herein by reference, constitute the entire
agreement between you and Shopify with respect to the provision
of the Payments Services. Except as otherwise set out herein, in
the event of a conflict between this Agreement and any other
Shopify or Processor agreement or policy, this Agreement shall
prevail on the subject matter of this Agreement. Except as
expressly provided in this Agreement, these terms describe the
entire liability of Shopify and our vendors and suppliers and
sets forth your exclusive remedies with respect to the Payments
Services and your access and use of the Payments Services. If
any provision of this Agreement (or portion thereof) is held to
be invalid or unenforceable under applicable law, then it shall
be changed and interpreted to accomplish the objectives of such
provision to the greatest extent possible under applicable law,
and the remaining provisions will continue in full force and
effect.
This Agreement has been reviewed by you with the benefit of
independent legal counsel to the extent you consider necessary,
and any rule of construction to the effect that ambiguities are
to be resolved against the drafting party shall not apply to the
construction or interpretation of this Agreement. The rights
conferred upon us in this Agreement are not intended to be
exclusive of each other or of any other rights and remedies we
may have at law or in equity. Rather, each and every right we
may have under this Agreement, at law or in equity, is
cumulative and concurrent, and in addition to every other right.
This Agreement may be available in languages other than English.
To the extent of any inconsistencies or conflicts between this
English Agreement and the Agreements available in another
language, the most current English version of the Agreement will
prevail.
Survival
In addition to any provision that is
reasonably necessary to accomplish or enforce the purpose of
this Agreement, the following sections of this Agreement survive
and remain in effect in accordance with their terms upon the
termination of this Agreement: Sections A6 Payment Methods; A8
Taxes; A10 Security; A11 Data Security; A12 Audit Right; A13
Privacy; A14 Privacy of Others; A15 Restricted Use; A16
Suspicion of Unauthorized or Illegal Use; A17 Payment Network
Rules; A18 Disclosures and Notices; A19 Automatic Reminders;
Section C Processing Card Transactions and Receiving Your Funds;
in its entirety; and, Section D Termination and Other General
Legal Terms in its entirety.